Weekly Arizona journal-miner., 1908-05-20

'h couft or before board when the court or board acquires jurisdiction to act in the premises. Tne filing of complaint is the initiation of cause. After the filing of complaint there Is cause pending and the court acquires jurisdiction over the subject matter of mat ease. So, II seems to me clear that there is not vacancy pending. or rather the matter of filling vacan. cy cannot be before the board of super. visors from the time tender of the resignation is made by county officer to the chairman of the board of super visors. The District Attorney has well said, and the result of his research agrees with the view of the Court up. on that subject, that vacancy does not occur under our statutes by the mere tender of resignation. There must be an acceptance of the resigna. ton by the board in some formal way, either by resolution or the appointment of a successor, as stated by the United States Supreme Court in the Edwards case, cited yesterday. That is the law for this jurisdiction. So 1t seems to me clear under the facts charged in the indictment that on the 9th day of March the matter of filling the va. cancy was not then pending, and all this goes, in my judgment, 10 establish the proposition that section l6i does not, nor was it intended to apply to this class of cases. The argument of the District Aattorney has strengthen. cd that view because he pointed out, and well pointed out, that section l6l Is inadequate to cover this kind and class of cases, inasmuch as the rcsigna. ton might be rendered in one moment and accepted by the board of supcrvis ors in the next moment by the ap. poiDtment of a successor. And yet there might bc perfect understanding before that time ,ha, the appointment of particular individual should be made. Section l6l, as l said before, is a very broad statute ad applies to various boards and officials and is in tended to cover all kinds of matters in their. jurisdictions which might be pending before them. So am con vinccd from study of both sections, from the argument of counsel and by what thought 1 have been able to give to the subject. that section l6l does not apply, but that section so does ap
 ply to this class of eases. There can be no question in my judgment that fl
 section I6l were eliminated from the
 statute SO that section so would apply 10 this ease. As ihc District Attorney has well argued. i6l strictly construed
 as it mus, he, is inadequate. it must be presumed conclusivcly therefore that
 the legislature did not intend section l6l to apply, bu, did intend that see
 ton s0 should apply as il does n terms The latter statute, being spec
 ial, under the well settled rule of con NlINfli'hs HlNNl b' h'ih '' ''''''' '''' former, which is general in its term"
 These statutes are not cumulative. fol
 il tx not to be presumed that the l"g's laturc would make the same act Nio ' lation of two statutes. leaving II t' the discretion of the prosecuting Of frcrs under which the charge should b
 made. Specially if one statute make
 the offense a felony and th" other misdcmeanor, as in this instance. lt | V my settled opinion that tnc ohens '' sought to be charged here is viola ton of Section so, and not of Seciio
 l6l.
 "Now. construing this indictmen
 under section s0, find that the fact are sufficiently charged to bring th
 ease within the purvicw of that ne
 but we are confronted by the prop' ,. sition. that section s0 makes the q
 fonso misdcmcanor and not a felon, " and the statute of limitations, bcin
 two years under the law of loOi' tl V. Court has no jurisdiction over the O 'e fcnsc and the demurrer must be s'' I, taned on that ground, and that will
 the order of the Court.
 "a Al the conclusion of his remarks, M v Morrison asked that an order be entc ms cd rc.submit,ing the ease to anoth w grand jury,
 le The Court - How can that be done in prosccution is barred under section Sc by the statute of limitations'
 Morrison can draw an indic'Ine if under section lGl which will meet U SC, requirements of the ease
 ,r. The Court If this is thr same h, fense, il is certainly barred by the sta q ute of limitations, for l have alrea' he ruled that section l0l is inadequate al' fit this case.
 |. xs na..;oao then nfpucd that