, 1890-11-18

precinct officers who had previously been
elected under the laws of the territory
should continue to hold their Offices until
the expiration OF the term for which they
had been elected and that their bonds
shall continue in full force and effect until
the expiration of said term.
Section l9, which requires all officers to
hold their offices until their successors are
elected clearly show that the district court
has no jurisdiction of probate matters until
the expiration of the term for which the
probate judge has been elected. The
acts of the legislature of 1879 and 1886
showed the Offices OF the probate
judge and county treasurer were
one and the same. These were
referred to to show that a substantial
doubt was honestly entertained as to
whether it was the duty of the probate
judge to have turned over his records on
July 10 or wait until his term of Office ex-
pires. An honest doubt being shownthe
only method recognized by law OF determ-
lining whether he should turn over was by
mandamus and the question could not be
reached by proceedings in contempt.
Where one court has Jurisdiction, as the
probate court has had in these cases for
twenty wears, and the court to which has
been given over these same matters or
apart of them, cannot bring this court
by proceedings in contempt into court
which has entire or partial jurisdiction
over the same matters.
Was section II OF the constitution self
acting or not? 1t could be honestly con
tended that, reading it in connection with
other constitutional provisions, farther leg
%islation was necessary, and authorities of
great weight could be cited to sustain this
point.
Mr.. Stoll therefore held that to begin
proceedings complaint must have been
made to the court, supported by affidavit,
detailing the fact that the complaining
parties are 10 some way deprived of their
rights.
Judge Lacey and Mr.. Davidson con-
tended that the probate court was abol-
ished when the constitution went into eff.
feet July 10 last. and that the provisions
of the constitution as to the continuance
in office OF the officers and the running Of
their bonds was nugatory. That it was
not necessary the order should be formal.
or show the name OF the court, county or
state Any informal order was sufficient
as the constitution had abolished the of
fee of probate judge and required the
on July 10. Bergman, they commended,
now stood in exactly the same 20.
sition as though he was a thief
and had stolen the court records. There
was no distinction between a district
court clerk refusing to turn over his pa
pers on the order OF the court and a
probate judge In the same position or a
turnkey, sheriff or bailiff refusing to
obey a court mandate.
Mr.. Stoll contended that there was this
decided difference: That the probate
court was a court of competent jurisdfc-
ton.
Judge Scott, however, issued the fol-
lowing order:
The court finds that Isaac Bergman is
in contempt by refusing to obey the
order OF this court heretofore issued, and
1t is further ordered that a commitment
issue directed to the sheriff of this
county, directing him to take into custody
said Isaac Bergman and keep him con
fined in the county jail until such time as
tho said Bergman shall comply with said
order of this court.
Judge Bergman was a guest of the
sheriff last night.