Phoenix weekly herald., 1896-07-02
DISTRICT COURT.
The Case Of WOIfey VS.. McCOrd De-
cided in Favor of the Plaintiff.
Treasurer Cole Must Vacate in Favor
of Thomas
Parish.

10 the case OF Wolf4y va. MoCord 70
possession Of the Office of citizsn men
Der of the Board OF Control, the decie
ion wee to the effaot that the Governo
had Che power TO remove the defsndan
and appoint the plaintiff to fill th
. vacancy.
The opinion was a long one and touch
cd all the points involved in the case.
During the delivery of the opinion
Judge Baker frequently referred SC
Brice On American Commonwealth
Marshals Life of Washington, showing
the study of political writer's SIS well as
the law books.
He also quoted from Ez-Presid en-,
Hsrrison's articles published ia the
Ladies Home Journal, entitled This
Country of Onrs"
The following is q synopsis of the
opinion:
"The defendant contends that the
Act of the Legislative Assent bly, of this
Territory, giving the Governor the
power to remove any Territorial officer,
is void, as being in conf cs with section
1857 and 1858 OF the Act of Congress
governing all Territories.
ought not 30 declare al Act Of the
Legislature void uniess it is clearly and
unequivocaIly SO. Laying the Act of
the Legislature along side she Act of
Congress, the inquiry is IS the purpose
OF the Statute one OF the purposes
mentioned or implied in the Act of Con-
gress, and if so, does the Statute in
pursuance of its purpose contain any
thing which conflicts with the Act of
Congress?' II SO, the Statute is void.
Section 1857 of the Act of Congress
deals with appointments to Office by the
Governor only; it is silent as to re-
movsls. The Act of the Legislature is
silent as to appointments and deals with
removal only Tie purpose, therefore,
of 6he Statute, as expressed, is not the
same as the purpose OF the Act of Con
gress, hence, I see no express conflict
between the Act OF Congress and the
Statute of this Territory.
As to an implied conf CT, / hold that
for more tnsu 100 years in this country |
under similar clause of the Constitu-
tion Of the United States as the ACT of
Congress 10 question here. it hes been
the judicial and Legislative construction,
that the President of the United States
has the power OF removal.
The better opinions have always dealt
with the clause 'by and with the advice
and consent as q confirming power
only. By analogy, I therefore reason
that the Governor of this Territory has
the power Of removal, except when re-
strained or oircumscribed by local Iegis-
lative enactments; and as We ses, the
of this Territory has ex-
preasly given the Governor the power of
removal.
Sectioo 1858. ia my opinion, was not
intended to govern in eli cases of
vacancy. The Governor having the
power to remove e Territorial officer,
thereby creating vacancy in such
office, I hold that it is an inevitable con-
sequence, that he has the power to fill
such vacancy by appointment during !
,hs recess of the Legislative Council.
The courts have nothing TO do with
5he policy OF the Legislature in passing !
a law. It is said that this power of re-
noval in tie Governor is an immense
and dangerous reach OF power, ard :
While 1 sgree with q great many ex- !;
1ressions used by the counsel for the
defendant along that line, I am con-
trained to say that they are arguments
or the Legislature only.
The Legislative Assembly of his Ter :
itory created the office of Citizen mem
,er OF the Board of Control, and it
GEMS to me, that the Legislative As
embly hassthe power to prescribs how =
uch officer should be removed.
The defendant in this case accepted
he of1ce created by the Legislative 7
assembly OF the Territory, the salary OF =
which is paid by the people of the Ter i.
itory, and I think but reasonable to ;,
conclude that he accepted it with the
that the Governor Of the
territory had the power to remove him
rom auch Office, under and by virtue of
be Act OF the Legislature iu question. !.
The Governor, under the law, must as
ume ell responsibility for the fitness OF :
lis appointee ard the exercise of the :
'ower conferred upon him." =
At O'Clock this afternoon Judge :
Baker called the case of Parish VS. Cole q
or possession of the office OF Territorial
treasurer. La answer to an inquiry
rom the Judge as to whether the at :
oFneya had anything further to offer, !
attorney General Wilson, for the plain d
#. stated that Mr.. Parish had fled a S
supplemental bond for $3l7, 900 which
sd been approved by the Governor.
Mr.. Deveregux, Assistant Secretary 2
I Stete, who was in the courtroom,
7as requested to present the bond to
be court. This was done and the
udge stated that he had hesitated on
ne question OF an Insufficient bond,
,ut that as a bond had been filed in q
efficient amount, aud had been approx
d by the Governor he was relieved.
ie stated that be had nothing whatever
0 do with the character of the bond,
whether it was good or bad. The Gov
rnor had approved it and with him
ested the responsibility.
He spoke eb some length on the law