Arizona silver belt., 1889-05-25
DECISION IN THE TERRITORIAL TREAS.
 URER CASE

ths case of John Y. T. Smith, plaintiff, vs. C. Burton Foster, defendant, Is elaborate and seemingly exhaustive of the subject as directly touching the right of Smith to the incumbeHcy ot the office of Territorial Treasurer.
 .,In his opinion, Judge Porter ex- plains that,
 When Foster was appointed to fill the vacancy created by the resignation of Marlen, there was fixed term to the office: Two years. His appoint ment was limited to the end of the 18th legislative assembly en March 21. 1889. The Revised Code, passed in 1887, provided no tenure to the office It stood as if a new office had been created. Foster was appointed, but the tenure not being fixed he held during tue pleasure of the appointing power, which appointing power is the Governor, during the recess of the .-ss,t -ssur1l,, ad,,s.; S9SIsc5s approval by the
 Foster claims this office in his an swer:
 4. By virtue of section 3050, which prescribes that every officer shall dis chare the duties of his office, although his term hasexpired, until hls successor had qualified.
 ?. By his second appointment.
 On the 22d of March he took com mission. thus taking new appoint ment and gave new bond, and thus surrendering his first commission. In the case of the United States vs. Kirk patrick, g Wheaton, 734, the Supreme Court held the taking of the second appointment was "a virtual superce- ding and surrender of the first com- nilsson He was appointed anew on the 22d day of March to this office, then having a different term from what it had under the appointment to fill the vacancy.
 1 must hold that the appointment of Smith on the 8th of April was valid. The appointment of another to the office provides the removal or displace- nent of the incumbent Field vs The people, ? Scammon GID 151 and ex parse Hennen, Blake vs. U. s. 103, U. s. 227, and cases there cited. Judg-' ment is therefore rendered for plain tiff"
 Congress prescribes that the session Of legislative assemblies of the several Territories shall be limited to sixty days. The Revised Code ot the Terri tory of Arizona, wnicl went into effect July 1st, 1887, provides: That the leg lslative assembly shall meet at the capital of the Territory on the third Monday in January, 1889, and every two years thereafter, and that Its ses- sions shall be limited to sixty days Hence 1t is that tine ceurta also inferen- tially deoiiaasias tihsIissH acts passed after the legal life of the session are neces- sarily void, which declsien stultifes the act appropriating money for the expense incidental to Territorial gov ernment. Consequently, all payments to Territorial officers must be deferred, at least until the biennial session of 1891, providing there IS no adjust ment by the courts before that time as there is no hope of an amicable ad- iustnasut of the question at issue un- less the Governor obtains the consent of the President or Congress to pro- claim an extra session of the legisla- ture.
 The Auditor only is authorized to check upon the treasury Tn cases not otherwise provided for. It must be expressed in the body of the warrant so drawn, the particular fund appro- prlated by law, cut of which the same is to be paid, and the warrant must be i ceuntersigned by the Governor or Sec retary. It IS especially enacted that no warrant shall be drawn by the Auditor, or paid by the Treasurer, unless the money has been previously appropriated by law. However, in cases where the law recognizes claim for money against the Territory, but ne appropriation shall have been made by law to pay the same, the Auditor shall audit and adjust the account. if presented to him, and give the claim ant a certificate of the amount thereof. under his official seal, If demanded. and shall report hls action to the leg islative assembly. If the Auditor shall issue any warrant upon the | treasury, not authorized by law, he shall be guilty of a mlsdemeanor, and upon conviction thereof shall be fined ln sum equal to five times the amount of such warrant, and impris- oned fer any time not exceeding two years.
 The Treasurer is required to keep separate accounts of the different i funds, the balance of cash on hand in the Treasury to the credit of each fund, as set apart by law.
 When the title of the incumbent of any office Tn this Territory is contcs- ted by proceedings instituted in any court for that purpose, no warrant shall be drawn or paid for any part of his salary or compensation except in ioanfaetad oloot;or ooco. o c4a. , 5oo-oo