Idaho semi-weekly world. [volume] (Idaho City, Idaho Territory) 1875-1908, 1890-03-04
SUPREME COURT DECIsIOx.

In the Supreme 9 urt OF Idaho Ter
riio =, January Term 1890.
In th' matter Of the application OF
Cary {. Hayird for writ of mandate
against the Board OF County Com.
mlssioners Of Boise County.
Huston 4 Gray for plaintiff
II. w. Dunton for the County Com
missioners.
George Ainslie for Intervenor.
The facts are stated in the opinion.
SWEET, J.
Cary 4. Havird was a candidate for
Sheriff at the regular election in Boise
county, held in November, 1856. He
was declared elected 10 said Office by
the canvassing board Of said county,
and in due time received certificate
accordingly. Within the time pre-.
scribed by law, John German, the OPP
posing candidate for Sheriff at said
election, commenced proceeding,
under an act Of the Territorial Leg
islstive Assembly, approved January
30, 1885, in which he contested the
right and title of said Havird to said
office. The cause was heard by the
District Judge in and for said coun.
ty, as by said act provided, and a
Judgment was rendered in favor of
the applicant herein. John German,
the interviewer in this action, moved
for new trial, which motion was by
said Judge overrulcd, and from the
order overriding said motion, said
German appealed to the Supreme
Court Of the Territory. The cause
came on for hearing before said
Court at It's January, 1889, term, and
on the lib day Of March, 1889, the
opinion OF the Court was rendered by
Mr.. Justice Berry; the Court by said
opinion declaring tho act under which
the trial before the Judge in said
Boise county was held to be uneon.
stitutional aud void; and by reason
thereof caused to be entered in the
records OF this court an order revers.
ing tho Judgment rendered by the
Judge of said district. On the 18th
day OF the same month 1.-THE next sue.
ceeding day OF the session OF the
Court tine judgment of the Court, al
rendered on the lth, was amended
on motion OF counsel for the respon.
dent, and by this amended judgment,
i. was ordered that the action DO dis.
missed, the substance OF said order
being that the word dismissed wa,
substituted for the word "reversed.
0n the following day an entry APP
pears ia the record setting forth tina
Chief Justice Weir and Justice f.o
gan, two OF the members OF sale
Count, having reoonsiderod the actor
OF the Court a. entered Of Marcel
18th, ordered that tho motion t.
amend the original entry OF Marcel
1lth be denied, and that the wor,
reversed should stand as the judg
ment of the Court in place of the
work dismissed"
The matter comes up at this tim,
on an application by Cary q. Havir,
for writ OF mandate, commanding
the County Commissioners Of sal,
Boise county to order the issuing o
warrants payable TO the order of sale
Havird, as compensation for service
rendered as aforesaid In tho form o
salary and for fees and expenses oil
lowed by law. The Commissioner
answer the order to show cause b,
stating that the title to the office i
involved IN an action now pending
in the District Court in and for tina
county. and that under Section 3st
OF the statute, the said Board is pro
hihited from ordering any warrant
drawn in payment of salary during
the pendsncy OF an action over tn,
title of the office. John German, tn,
iRtetvenor, AYERS that the action i
still pending in the Court below; an,
that while such action is pending, h,
is an interested party, and invoke
section $50 of the statute to SHOW
that this Court is without authortr
TO issue said writ. The allegation
contained in the pleadings cover
much wider range of investigation
Indeed, under the complaint and an
swer, 1t might be possible to try tn
entire case, as it is sverred on tn
one hand that one party was elected
and on the other hand, the election
of the first party is denied and tn
election of the second party averret
A greater portion Of these declare
tions pro and con are res adjudicatc
and will not be considered by thi
Court. The only question here pre-
scented is the status of the case afte
the decision rendered by the Suprem
Court at its last session.
What purports to be the record {
ihe Court, particularly the entry {