The semi-weekly miner. [volume] (Butte, Mont.) 1882-1886, 1883-04-25
THE COMMISSIONERS ACT.
The Question of It's Constitution
atty.
Full Text Of Justice Wades-De-
cisiOn.
Miles City Press, April 18th.

Miles City Press, April 18th.
The following is the full decision
rendered yesterday by Justice Wade
in the matter of the demurrer OF
Messrs. Van Gasken, Bryan and
Miles to the complaint of Messrs.
Robertson and Hubbel:
The People ex rel Robertson VS.. Van Gaskin
ct al. Demurrer to complaint.
This was a proceeding in the nature
of quo wdyranto instituted by the old
commissioners against the new ones
appointed by the Legislature, and
involved the validity of the act of the
Legislature declaring the Offices OF
county commissioners of Custer
county vacant and filling said Offices
by the defendant.
The case was argued ali day Mon
day and Monday evening by Judge
Strevell, Judge Chumasero, Col.
Sanders, A. +. Burleigh and MI.
Cox, aud yesterday morning Judge
Wade delivered a lengthy oral epin-
ion in the case in which the follow
ing propositions were maintained:
lst. The legislative authority of
the territory extends to all rightful
subjects of legislation, not inconsis-
tent with the constitution and the
laws.
I'd. 1t is a rightful subject Of legis-
lation TO: the legislature to create the
offices of county commissioners; to
prescribe the duties, and to provide
the manner in which these offices
shall be filled.
Sd. AS to the manne in which
these offices shall be filed, the organ
ic act provides that the legislature
may appoint such officers, or permit
the people of the county to elect
them.
4th. The election of county or
township officers is not an inherent
right residing with the people. The
legislature may provide for the APP
pointment Of all such officers. The
legislature is the agent Of the people.
It creates the offices and provides
the officers. It is supreme within
the limits of its jurisdiction. 1t has
complete control over any offices or
officers created by itself. When not
limited or controlled 10y the constitu-
tionor organic law which is beyond
the reach of legislative power, it may
make or unmake offices and officers
at its pleasure.
9Th. There is no property in u leg
islative office. It cannot be bought
or sold. It is not subject to that
constitutional provision which de-
clares that no man can be deprived
of his property without due process
of law.
9th. If the constitution or organic
law does not limit its authority, the
legislature may declare any office of
its own creation vacant, and appoint
another officer to fill the vacancy.
There is no provision of the constitu-
ton or organic act that limits the
of the Legislature in this
regard. If the legislature may APP
point to office it may remove from
office. These powers are incident to
each other. Officers are mere agents
Of the people, and the people acting
through the legislature may termi- !
nate the agency at its pleasure.
It'll. It is not true, as cOntended
by ~relator, that a general law becomes
of the same validity and of as high
auCIiOIltS dS tAe "SaAio aSI VI t4iC
A general law is Of no
greater authority th0i a special law.
The legislature may provide "a gen
eral law for the Territory at large,
and a special law on the, same sub
iect for any particular county. TIE
legislature might legally provide a
law providing how the offices
Of county commissioners should he
filled in each county.
Sth. The power that creates an Of
fee may abolish it. The authority
hat fills an office may create a va
,ancy therein.
There is no contract between the
officer and the people. The people,
through their Legislature, may reduce
sr abolish his fees; may extend or
enlarge his jurisdiction; may impose
lpon him new burdens and duties
md he cannot complain. There is
binding upon him. He may
'esign at any time, and cannot be
,ued for breach of contract. He may
erminate the employment whenever
le pleases, and SO may the legisla-
ure, but so long as he assumes to
.xercise the functions of the office he
must obey the law.
The act of the legislature declaring
he offices of county commissioners
'acant, and appointing other persons
o fill said offices, was therefore de-
Jared valid, and the demurrer to the
omplaint was sustained.