Arizona weekly citizen., 1882-09-24
A Precedent

EDITOR CITIzEN:-Tbe question as to the legality of the coming Legislature seems to be the absorbing topic of the day. 4 few scraps of history may assist m arriving at a correct conclusion of the matter. In our "organic act" it is provided that for the first Legislature the Governor shall make the apportion- ment. and designate the place for the meeting of the first Legislature. But thereafter the Legislature shall (not may make the apportionment and des- lgnate time and place for holding the session, the time not to exceed forty
 days. See revised statute of Arizona,
 section ,, of the Organlc Act. The
 Legislature of 1S65-66, authorize the
 Governor to make the spportionment
 and designated the place of meeting for lS6G-67. See Governors Proclamation in
 Journal of session for 1866 citing his
 authority for so doing. In 1868 the question was raised as to whether the Legislatures of lSG6-67 were legally constituted bodies within the meaning of the Organic Act. To settle that question test suit was brought in the first Judicial District Court Judge H. F. Backus presiding, entitled, Territo- " of ArlZona vs. Oscar Buckalew. A quo warrant was issued for Buckalew to show cause why he should not be punished for usurping the office of re- corder and busted therefrom. Buckalew, filed hls certificate of election under the laws of lS66-67 The court held hat I ..N lS66-61 were not legally constituted bodies. That they were called into be- ing by act of the Governor in violation of the letter and spirit of the Organic Act That a Territorial Legislature was a power created, that 1t could not annul, amend, or alter; an act of the power that created it. That the power creating having with great clearness designated persons, time and manner of doing certain specified act, the power created could not substitute other per sons, time and manner for doing said specified acts. Therefore all acts of the SO called Legislature of 1866 -67, were null and void and of no effect, and cited the highest JudIcial authority known to in jurisprudence in support of his posi- tiOn. here insert copy of the Order Of the Court oustIng Buckalew with costs:
 ORDER OF THE COURT.
 September II, 1878. Journal District Court. page l20.
 Territory of Arizona, eI re la Of G. H. Oury, District Attorney of the county of Pima and ex officiO Attorney General, vs. Oscar Buckalew, Recorder of Pima county.
 This cause having heretofore been argued and submitted 10 the court and the court having fully considered the same, now here finds and adiudges that the said Oscar Buckalew is guilty of usurping and intruding into the office of Recorder Of the county of Pima and of unlawfully holding and exercising the functions of said office. The court, therefore, doth consider and adjudge that the said Oscar Buckalew be and he hereby IS excluded from the said office of Recorder of the county of Pima and all the rights and privileges pertaining.
 Notice of appeal was given but never prosecuted.
 Congress was immediately petitioned to legalize the acts of those two ses- sions, but declined to do SO on the grounds that it was in the hauds of the judiciary and by the judiciary 1t must be decided. But Congress immediately passed bill under suspension of rules of both Houses ordering census Of the Territory by the U. S. Marshal appoint ing day of election, fixing time and place for holding the session, authoriZ- ing the Governor to appoint county officers in the several counties until their successors were qualified under the provisions of the act and such other matters as might be necessary to give effect to the act. There was no election held nor a session of the Legislature in 1868 as provided for by acts of 1867, none was held until that provided for in the enabling act above referred to. | It appeared to Congress that We were without a Government and 1t reor- yanized as promptly and completely.
 The several legislatures thereafter | made the appOrtionment until 1878. l The session of 1878 was apportiOned by | the Governor.
 The people. with but few exceptions, | in the law sof the two sessions l above referred to, but the end is not yet. l If history repeats itself in this matter, | the consequences may be more serious. |
 A somewhat similar case occurred in Colorado some thirteen years ago, 1 as published in the Denver News. l Congress designated certain officer of | the United States to receive and hold in l trust a certain piece of land, and the | legislature of the Territory designated | an officer of its own creating. to receive | and hold said land, which he did in | part. In time 1t was jumped and held ,n the ground that the Territorial of- icer had no authority in law to act in he premises. and the Superior court 10 held, but the land reverting to the United States, Congress- passed bill or the relief of parties in interest as laymant for. J R AIrFN.