22 P. 8 | Idaho | 1889
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
Upon this petition the court granted an alternative writ of mandate, returnable on the fourteenth day of February, 1889, to which the defendant demurred, and assigned for cause the following grounds: “1. That the court has no jurisdiction of the person of the defendant or the subject of this proceeding; 2. That the plaintiff has no legal capacity to sue, in this: that the said writ does not show that he has any beneficial interest therein; that if he be the officer alleged in said writ at the time of the commencement of this action, the proceedings should have been brought upon the relation of the proper prosecuting officer; 3. That it does not state facts sufficient to constitute a cause of action or proceeding of this kind; 4. That the same is ambiguous and uncertain in this: that the same does not clearly state what act or acts the defendant is required to perform, what matters are sought to be inserted in said journals and minutes, and what to be stricken out.”
This proceeding is based on sections 3815 and 3816 of the Kevised Statutes of this territory. Section 3815 declares that the jurisdiction of this court is of two kinds, original and appellate. Section 3816 provides that “its original jurisdiction extends to the issuance of writs of mandate, review, prohibition, habeas corpus, and all writs necessary to the exercise of its appellate jurisdiction.”
We do not deem it necessary to notice the various grounds set out in this demurrer, but will confine our attention to the third cause assigned, which is as follows: “That it does not state facts sufficient to constitute a cause of action or proceeding of this kind.” The decision of the court upon this ground disposes of'the case according to our view, and renders unnecessary a discussion of the other grounds. The consideration and decision of the question raised by this ground of demurrer
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. (United States v. County of Clark, 95 U. S. 769.) The court there say: “A mandamus does not confer power upon those to whom it is directed. It only enforces the exercise of power already existing, when its exercise is a duty.” In the case of Supervisors v. United States, 18 Wall. 77, Mr. Justice Strong, in delivering the opinion of the court, says: “It is very plain that a mandamus will not be awarded to compel county officers of a state to do any act which they are not authorized to do by the law* of the state from which they derive their powers. Such officers
For these reasons, and also for those stated in. the ease of Burkhart v. Reed, ante, p. 503, 22 Pac. 1 (decided at this