Clough v. Curtis

• Decision Date: 11 March 1889
• Citation: 2 Idaho 523,22 P. 8
• Parties: CLOUGH, PRESIDENT OF COUNCIL, v. CURTIS, SECRETARY OF TERRITORY
• Court: Idaho Supreme Court

22 P. 8

2 Idaho 523

CLOUGH, PRESIDENT OF COUNCIL, v. CURTIS, SECRETARY OF TERRITORY

Supreme Court of Idaho

March 11, 1889

APPLICATION FOR WRIT OF MANDATE.-The secretary of the territory must receive from the clerks of both branches of the legislature at the close of each session, all bills and papers belonging to the archives of the respective Houses, and all books of both Houses, and certify to the reception of the same. He is not required nor permitted to receive any documents from any other source. It is not within the scope of mandamus to confer power upon those to whom it is directed. It only enforces the exercise of powers already existing, when its exercise is a duty.

Demurrer sustained, and the application for a writ of peremptory mandamus denied, with costs.

Arthur Brown, Lyttleton Price, Texas Angel, and S. B Kingsbury, for the Petitioner.

James H. Hawley and John S. Gray, for Respondent.

WEIR C. J. Berry, J., dissents.

OPINION

WEIR, C. J.

This is an application by the plaintiff for a writ of mandate to be directed to the defendant above named. The grounds upon which the writ is asked are fully set out in the petition of the plaintiff, which reads as follows: "Your applicant respectfully shows to your honorable court that he is the president of the council of the fifteenth session of the legislature of Idaho territory. That he was duly elected qualified, and acted as, and is the acting, president of that body. That the defendant, Edward J. Curtis, is the secretary of the territory of Idaho. That, on the sixtieth day of the said session of the legislature, February 7, 1889, the following proceedings were had in the council: That the said council continued in session during the whole of the said sixtieth day till 12 o'clock, midnight, of that day, and thereafter till about 1 o'clock of the next succeeding morning. That at that time a communication was received by the said council from the chief clerk of the House of Representatives of the said fifteenth session, announcing that the said House of Representatives had then and there elected one George P. Wheeler a Speaker pro tem. of the said House of Representatives. That this communication was received long after the sixtieth day had expired, to wit about 1 o'clock of the 8th day of February, 1889. That your applicant, the president of the council, then and there declined to receive the said message as a message from the House, for the reason that the said House of Representatives had no authority to elect a Speaker after the sixty days prescribed by the limitation of the act of Congress had expired. That thereupon this applicant, as president of said council, did then and there announce to the council and declare that, because the hour of 12 o'clock and after had arrived, and the time had elapsed in which the said legislature was permitted to transact business, therefore the said council was adjourned without day,' and your applicant alleges that the said fifteenth session of the council of the legislature of Idaho territory was then and there adjourned and terminated. That your applicant then inquired of the chief clerk, Edward L. Curtis, if the said adjournment was recorded in the minutes of the proceedings of the said session, and received the reply from him that it was. Your applicant further shows that the said council then dispersed, and he himself, and other members of the council, left the room, and your applicant is informed, and alleges on information and belief, that, after the said president of the council and other members of the council had left the room, other members assumed and pretended to reorganize the said council, and assumed and pretended to elect one S. F. Taylor president pro tem. of said council, and to elect other officers of the council, and assumed and pretended to transact legislative business thereafter, and assumed and pretended to pass enactments which the said persons, pretending to be a legislature, did then and there assert and claim were acts of the legislature of the fifteenth session of Idaho territory. That, as your applicant is informed, and on his information and belief charges, there are some seventeen of said pretended acts of the legislature thus assumed and pretended to be passed by the said persons after the time had expired for holding said session of the legislature. Your applicant further alleges that, in making up and preparing a record of the said sixtieth day of the said session of the legislature, the clerk did not show thereafter the same to this applicant, and your applicant has never seen, till after the said chief clerk had filed with the secretary of the territory, the defendant herein, certain papers which he claimed and pretended were the proceedings of the said sixtieth day of the said session of the council, but which, in truth and in fact, were a false and fictitious account of the proceedings of that day, signed by S. F. Taylor, and not signed by J. P. Clough, president of the council, as required by the rules and practice of the council. That your applicant has now seen the said pretended proceedings in the office of the secretary of the territory, and finds that a part of the said pretended minutes or records has been cut out. That there are three stubs of leaves which have been part of the former proceedings of the records or minutes of the said fifteenth session. That that part of the minutes which recites that the said president of the council had declared the said session adjourned, and his reasons therefor, has been cut out, and was omitted from the minutes as filed with said secretary of the territory. That this applicant, the president of the said council, did, on the fourteenth day of February, 1889, call the attention of the said secretary of the territory to the said cut leaves, and stated to him the proceedings which should have appeared therein, and handed to him a report of the proceedings as they actually occurred, and demanded that the same should be incorporated with the proceedings of the said legislature, and be recorded as a part of the proceedings of the council of said legislature. That the said Edward J, Curtis. secretary of the territory of Idaho, did then and there decline to record the said adjournment and proceedings, and each and every part thereof, as part of the proceedings of the said legislature. And your applicant did then and there also demand that the said report, as furnished by this applicant, should be certified to Congress as a part and a portion of the proceedings of the legislature of Idaho for the fifteenth session. That the said Edward J. Curtis did then and there refuse to report the said adjournment as a part of the said proceedings, or any part of the report, as furnished by this applicant; and your applicant, after having stated and certified to said Edward J. Curtis, secretary of the territory of Idaho, that all of the alleged proceedings wherein it was pretended and claimed that said S. F. Taylor was president pro tem. were had after the hour of 12 o'clock, and after the adjournment of the said council by the president thereof, demanded that the said subsequent pretended proceedings and pretended ...