tory to record a report of such president as part of the proceedings of the session, or to expunge from the records of such proceedings part of a former report made by the clerk. BERRY, J., dissenting.

or all members remained in their places, is | legislature, to compel the secretary of the terriof no moment. The regular session was ended; and if, before the meeting of the next legislature, that body could reconvene, it must be in extra session, called pursuant to law. After that moment, whatever was done by certain members was not done by Application of J. P. Clough, president of a legislative body, and all its acts pretend- the council of the fifteenth session of the ing to be legislative acts are, in fact, abso-legislature of Idaho, for a writ of mandate lutely null and void. against Edward J. Curtis, secretary of the territory of Idaho.

Arthur Brown, Lyttleton Price, Texas Angel, and S. B. Kingsbury, for the petitioner. Jas. H. Hawley and John S. Gray. for respondent.

7. It follows from the facts that this socalled legislature was not a legislature, and those so-called records are not, in any sense, legislative records; that the arguments and authorities upon the power of the court to correct or supervise acts done by a real legislature, or the effect, for any WEIR, C. J. This is an application by the purpose, of real legislative records, or plaintiff for a writ of mandate to be diwhether such real records can or cannot be rected to the defendant above named. The impeached collaterally, and any and all grounds upon which the writ is asked are questions, and, I think, either in the majori- fully set out in the petition of the plaintiff, ty of opinions of this court, or otherwise, which reads as follows: "Your applicant based on a presumption founded on real respectfully shows to your honorable court records, are wholly irrelevant, and do not that he is the president of the council of bear on this case. These questions com- the fifteenth session of the legislature of prise most of the arguments of these de- Idaho territory. That he was duly elected, murrants, and have no bearing on the case qualified, and acted as, and is the acting, before this court. They are collateral mere-president of that body. That the defendant, ly. Those papers are not called in question Edward J. Curtis, is the secretary of the collaterally, but directly, by proceedings territory of Idaho. That on the 60th day provided by law to determine whether of the said session of the legislature, Febthey are, in fact, records of a legislative ruary 7, 1889, the following proceedings body or not; and, if not records, then to were had in the council: That the said have them, or such of them as are not rec-council continued in session during the ords, so declared, and to have the spurious whole of the said sixtieth day till 12 portions expunged, and the true records substituted. This is a plain and simple duty of the court, for which it was created and armed with plenary power.

8. These considerations apply as well to the case of Clough v. Curtis, infra, as to this case. The facts in the two cases are, in the main, the same, only that like proceedings took place in the council as in the house, and except that in that case a fact is also alleged and admitted by the demurrer: that the true record was mutilated; that three leaves of the genuine records, which had actually been written up and approved before adjournment, were removed from the records, and their places supplied with matter falsely purporting to be a record of proceedings by the legislature before it had expired. The high-handed character of those acts should be investigated, and should not be hidden. If those grave charges be not in fact true, let them be denied, and let both sides be admitted to their proof. The demurrer in both cases should be overruled.

(2 Idaho [Hasb.] 523)

CLOUGH, President of the Council, v. CURTIS,
Secretary of the Territory.

(Supreme Court of Idaho. March 11, 1889.)1 MANDAMUS-TO SECRETARY OF TERRITORY. Rev. St. Idaho, § 124, provides that the secretary of the territory must certify to the reception of all bills and papers belonging to both houses of the legislature delivered to him by the respective clerks. Section 1844 of the organic act provides that he "shall record and preserve all the laws and proceedings of the legislative assembly." Held, that mandamus would not lie, on the application of the president of the council of a session of the

o'clock, midnight, of that day, and there-
after till about one o'clock of the next suc-
ceeding 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 repre-
sentatives 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 one o'clock of the 8th day of Febru-
ary, 1889. That your applicant, the presi-
dent 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 60 days pre-
scribed by the limitation of the act of con-
gress 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
That
there adjourned and terminated.
your applicant then inquired of the chief
clerk, Edward L. Curtis, if the said ad-
journment was recorded in the minutes of
the proceedings of the said session, and re-
ceived the reply from him that it was.
Your applicant further shows that the
said council then dispersed, and he him-
self, and other members of the council, left

Delay in publication caused by failure to re-the room, and your applicant is informed, ceive copy earlier.

and alleges on information and belief, that,

tion should not. be recorded as a part of the proceedings of the legislature, and, if already recorded, that the same be expunged from the record of the proceedings of the fifteenth session of the said legislature,-all of which the said secretary of the territory declined to do, and still does decline to

acts signed by the said S.F. Taylor as president pro tem. as null and void, and threatens to report the said proceedings of the council of the said legislature, and threatens to certify the same to congress as a part of the said proceedings: Wherefore,

damus may issue from this honorable court, commanding the said Edward J. Curtis, secretary of Idaho territory, to record the said report of your petitioner as a part of the proceedings of the said fifteenth session of the council of the territory of Idaho, and commanding him to expunge from the recsaid session all the pretended proceedings assumed to be done by S. F. Taylor as president of the council, and to strike from the files and records of the laws of Idaho those pretended acts of the legislature which were passed while the said S. F. Taylor pretended to be president pro tem. of the council, and signed by him as such, and for such other relief as may be proper under the circumstances.

after the said president of the council and | tified to said Edward J. Curtis, secretary of other members of the council had left the the territory of Idaho, that all of the alleged room, other members assumed and pre-proceedings wherein it was pretended and tended to reorganize the said council, and claimed that said S. F. Taylor was presiassumed and pretended to elect one S. F. dent pro tem. were had after the hour of Taylor president pro tem. of said council, 12 o'clock, and after the adjournment of the and to elect other officers of the council, said council by the president thereof, deand assumed and pretended to transact leg-manded that the said subsequent preislative business thereafter, and assumed tended proceedings and pretended legisla and pretended to pass enactments which the said persons pretending to be a legislaturę 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 17 of said pretended acts of the legislature thus as-treat the said pretended proceedings and sumed 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 60th day of the said session of the legislature, the clerk did not show thereafter the same to this ap-your applicant prays that a writ of manplicant, 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 proceed-ords and minutes of the sixtieth day of ings 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 3 stubs of leaves which have been part of the former proceedings of the records or minutes of the said fifteenth Upon this petition the court granted an session. That that part of the minutes alternative writ of mandate, returnable on which recites that the said president of the the 14th day of February, 1889, to which council had declared the said session ad- the defendant demurred, and assigned for journed, and his reasons therefor, has been cause the following grounds: “(1) That cut cut, and was omitted from the min- the court has no jurisdiction of the person utes as filed with said secretary of the of the defendant or the subject of this pro-' territory. That this applicant, the presi-ceeding. (2) That the plaintiff has no ledent of the said council, did, on the 14th day gal capacity to sue, in this: that the said of February, 1889, call the attention of the writ does not show that he has any benesaid secretary of the territory to the said cut ficial interest therein; that if he be the ofleaves, and stated to him the proceedings ficer alleged in said writ at the time of the which should have appeared therein, and commencement of this action the proceedhanded to him a report of the proceedings ings should have been brought upon the as they actually occurred, and demanded relation of the proper prosecuting officer. that the same should be incorporated with (3) That it does not state facts sufficient the proceedings of the said legislature, and to constitute a cause of action or proceedbe recorded as a part of the proceedings of ing of this kind. (4) That the same is amthe council of said legislature. That the biguous and uncertain in this: that the said Edward J. Curtis, secretary of the ter- same does not clearly state what act or ritory of Idaho, did then and there decline to acts the defendant is required to perform, record the said adjournment and proceed- what matters are sought to be inserted in ings, and each and every part thereof, as said journals and minutes, and what to be part of the proceedings of the said legisla-stricken out." ture. And your applicant did then and This proceeding is based on sections 3815 there also demand that the said report, as and 3816 of the Revised Statutes of this terfurnished by this applicant, should be cer-ritory. Section 3815 declares that the juristified to congress as a part and a portion diction of this court is of two kinds, origof 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 cer

inal 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, congress. It is equally clear that it was but will confine our attention to the third not the duty of the secretary, upon the cause assigned, which is as follows: "That plaintiff's demand, to expunge from the it does not state facts sufficient to constitute journal and minutes of the sixtieth day of a cause of action or proceeding of this kind." said session the proceedings assumed to be The decision of the court upon this ground had before S. F. Taylor as president of the disposes of the case according to our view, council, or to strike from the files and recand renders unnecessary a discussion of the ords the alleged pretended acts of the legisother grounds. The consideration and de- lature, which were passed while the said cision of the question raised by this ground S. F. Taylor was acting as president pro of demurrer necessarily involves an inquiry tem. of the council. Not only was he not into the powers and duties of the defendant authorized to do what was demanded of secretary, conferred upon him by law. Sec- him, but, if he had done so, it would have tion 124 of the Revised Statutes of Idaho been a clear breach of his official duty. prescribes the duties of the chief clerk of the The law authorized him to receive such relegislative council, and the duties of the ports from one source only, and he could defendant, as secretary of the territory, in not receive them from any other. The presireference to the journals and rolls of that dent of the council had no more right to body, in these words: "The clerks, at the make this demand upon the secretary than close of each session of the legislature, must would any other member of the legislature; mark, label, and arrange all bills and pa- and certainly, upon the unsupported word pers belonging to the archives of their re- of one member of the legislature only, the spective houses, and deliver them, together secretary would not be authorized to with all the books of both houses, to the change, modify, or expunge from the joursecretary of the territory, who must certify nal, which he had received from the proper to the reception of the same." Section 1844 source, anything therein contained. Neithof the organic act imposes further duties er had he the right to assume judicial funcupon the secretary of the territory, and tions, and decide upon evidence what should prescribes and defines those duties as fol- constitute the proceedings of the legislature. lows: "The secretary shall record and pre- It is not within the scope of mandamus serve all the laws and proceedings of the to confer power upon those to whom it is legislative assembly, and all the acts and directed. It only enforces the exercise of proceedings of the governor in the executive powers already existing, when its exercise department. He shall transmit one copy is a duty. U. S. v. County of Clark, 95 U. S. of the laws and journals of the legislative 769. The court there say: "A mandamus assembly, within thirty days after the end does not confer power upon those to whom of each session thereof, to the president, it is directed. It only enforces the exercise and two copies of the laws, within like of power already existing, when its exertime, to the president of the senate and to cise is a duty." In the case of Supervisors the speaker of the house of representatives, v. U. S., 18 Wall. 77, Mr. Justice STRONG, in for the use of congress. He shall transmit delivering the opinion of the court, says: one copy of the executive proceedings and "It is very plain that a mandamus will not official correspondence semi-annually, on be awarded to compel county officers of a the first day of January and July in each state to do any act which they are not auyear, to the president. He shall prepare thorized to do by the laws of the state from the acts passed by the legislative assembly which they derive their powers. Such offifor publication, and furnish a copy thereof cers are the creatures of the statute law, to the public printer of the territory, with- brought into existence for public purposes, in ten days after the passage of each act." and having no authority beyond that conAnd afterwards, by act of congress of June ferred upon them by the author of their be20, 1874, further duties were imposed upon ing. And it may be observed that the of him, which are as follows: "And hereafter fice of a writ of mandamus is not to create it shall be the duty of the secretary of each duties, but to compel the discharge of those territory to furnish estimates in detail for already existing. A relator must always the lawful expenses thereof, to be presented have a clear right to the performance of a to the secretary of the treasury on or be- duty resting on the defendant before the fore the first day of October of every year." writ can be invoked." And again, in the The duties of the defendant secretary are case of U. S. v. County of Macon, 99 U. S. very clearly defined by these statutes. They 591, the court say: "We cannot create new constitute the chart of his authority. He rights or confer new powers. All we can is bound to perform the duties thus imposed do is to bring existing powers into operaupon him, but nothing more. He must re- tion." We might cite a multitude of auceive from the clerks of both branches of thorities which sustain this doctrine, but the legislature, at the close of each session, the principle is so well established that we all bills and papers belonging to the ar- deem it unnecessary. Certainly, considerchives of the respective houses, together ing this as the well-established law, we canwith all the books of both houses, and not create in the secretary of the territory must also certify to the reception of the a power to determine from evidence what same. He is not required, nor, in fact, per- are the correct minutes of the legislature. mitted, to receive and record any such doc- No such power is conferred upon him by uments from any other source. Clearly, it statute, nor is there any such duty imposed was not his duty to receive from the plain- upon him. As we have already stated, he tiff his alleged report of the proceedings, as is required to receive such journals as are he claimed them to be, or to incorporate handed to him by the clerks, and, after rethe same in the proceedings of the said leg-ceiving them, to perform certain duties in islature, or to record the same as a part of regard thereto such as we have stated. the proceedings, or to certify the same to There his power and his duty ends. To dis

pose of this case it is only necessary to re- | were then, and have since been, and now are, fer to the prayer of the petition, which entitled to the possession of, the following "prays that a writ of mandamus may is- described real estate, and property situated sue from this honorable court, commanding in Wyandotte county. Kansas, thus boundthe said Edward J. Curtis, secretary of ed, to-wit: Beginning at a point six hunIdaho territory, to record the said report dred and forty (640) feet two (2) inches of your petitioner as a part of the proceed-south, sixty-one (61) degrees and thirty ings of the said fifteenth session of the coun- minutes west, from another point thirtycil of the territory of Idaho, and command-four hundred and eighty-four and one-half ing him to expunge from the records and (3,484) feet north, twenty-eight (28) deminutes of the sixtieth day of said session grees and thirty (30) minutes west, from all the pretended proceedings assumed to be the south-east corner of section eleven, (11,) done by S. F. Taylor as president of the township eleven, (11,) range twenty-five, council, and to strike from the files and rec- (25,) in said Wyandotte county, and runord of the laws of Idaho those pretended ning thence from said beginning point south acts of the legislature which were passed sixty-one (61) degrees and thirty (30) minwhile the said S. F. Taylor pretended to be utes west, two hundred and eighty-nine president pro tem. of the council, and (289) feet; thence south, twenty-eight (28) signed by him as such, and for such other degrees and thirty (30) minutes east, one relief as may be proper under the circum- hundred and eighty (180) feet; thence north, stances." sixty-one (61) degrees and thirty (30) minutes east, two hundred and eighty-nine (289) feet; thence north, twenty-eight (28) degrees and thirty (30) minutes west, one hundred and eighty (180) feet, to the place of beginning; except a part thereof described as follows, to-wit: About twentyfive (25) feet by fifty-four (54) feet on the east side of Wood street, being all that is fenced in and occupied by Frank Rodie; and also, excepting that part of said premises described as follows, to-wit: A piece of land fifty (50) feet square in the south-westerly corner thereof, occupied by Anton Hoenf at the commencement of this action. That defendants, at the filing of the original petition and the commencement of this action, unlawfully kept, and are ever since keeping unlawfully, and still unlawfully keep, plaintiffs out of the possession of said premises and real property, in which plaintiffs had and still have a legal estate as aforesaid. Plaintiffs therefore pray judgment against said defendants for the recovery of said real property, and for costs of suit."

For these reasons, and also for those stated in the case of Burkhart v. Reed, ante, 1, (decided at this term of the court,) the demurrer is sustained, and the application for a writ of peremptory mandamus is denied, with costs.

BERRY, J., dissents.

(42 Kan. 176)

WILKINS et al. v. TOURTELLOTT et al. (Supreme Court of Kansas. July 5, 1889.)

ATTACHMENT-PRESUMPTIONS.

1. Wilkins v. Tourtellott, 28 Kan. 825, and Same v. Same, 29 Kan. 513, followed.

2. Collateral attacks upon judicial proceedings are never favored. Irregularities alone are not sufficient to destroy the validity of judicial proceedings, nor are mere omissions from the records sufficient to destroy such proceedings. It will generally be presumed, in the absence of anything to the contrary, that all that was necessary to be done with respect to any particular matter by the officer of a court was not only done, but rightly done. Head v. Daniels, 38 Kan. 1, 15 Pac. Rep. 911. 3. Where the return of an order of attachment shows that the officer attached certain real estate, and that when he attached the same he in fact took Fossession thereof, and left a true copy of the order of attachment, but does not state in so many words that he left a copy of the order with the occupant, or, if there were no occupant, in a conspicuous place on the real estate, it will be presumed that the officer did his duty when he attached the property, and therefore that the service of the order of attachment by him was properly and legally made. (Syllabus by the Court.)

Error from district court, Shawnee ty; JOHN GUTHRIE, Judge.

The defendants, excepting Annie Mason, filed the following answer: "Defendants, for answer, admit that they are in possession of the premises described in the plaintiffs' petition, and aver that they are lawi...y entitled to the possession thereof, and deny each and every other allegation in aid petition contained." And Annie Mason, for her separate answer, alleged: "(1) That she is not in possession of said premises mentioned in said plaintiffs' petition, under any claim in her own right, but only as a member of the family of the said defendant James M. Mason, and under his dicoun-rection and control, without any voluntary act of her own; that in her own right she sets up no right, claim, or title, or demand to the said premises save and except that which behooves her and is proper as the wife of the said James M. Mason, specially est therein. That whenever the court renders a decree against the said J. M. Mason, or a judgment herein for possession of said premises, and he departs therefrom, so she will do likewise. (2) That, except as above, said defendant Annie Mason says that she denies each and every allegation in suid petition contained. (3) Said defendant further says that she denies that she is a proper party to this suit. (4) Said de

This case was commenced by George W. Tourtellott and George P. Allcutt, October, 23, 1879, in the district court of Wyandotte county, against Charles Wilkins, Nicholas McAlpine, James M. Mason et al., to re-disclaiming any other right, title, or intercover a tract of land in Kansas City, in Wyandotte county, 259 feet long by 120 feet wide, excepting two small parcels thereof, specially mentioned in the petition.

The amended petition, upon which the cause was tried, was as follows: "That at the time of the filing of the original petition herein and the commencement of this action, plaintiffs had, and ever since had had and now have, a legal estate in, and

being waived. On January 11, 1887, that court rendered judgment in favor of the plaintiffs, and filed the following special findings of fact and of law:

“(1) That in 1860 David E. James was the owner of the undivided three-eighths interest in a portion of what is known as 'Armstrong's Reserve, No. 1,' and March 5, 1860, James executed to James Gladden a titlebond for an undivided ten acres of this land, and described the premises as the west half of the south-west quarter of section eleven, (11,) and the east half of the south-east quarter of section ten, (10,) in township eleven, (11,) and being in the fork of the Kansas and Missouri rivers in Wyandotte

"(2) That on the same day said James Gladden, in writing, assigned and transferred this bond for a deed to one Henry R. Seegar for the nominal consideration of $1,000, but in fact without any consideration; and which assignment made by the said Gladden to the said Seegar was duly executed, acknowledged, and proved by the said Gladden on March 6, 1860, and recorded in the proper register of deeds' office of Wyandotte county, October 1, 1860, a copy of which bond and assignment is as follows:

fendant denies that she is a necessary party | there tried in June, 1886, to the court, a jury thereto, and prays the court that the said action be dismissed as to her, and she recover her costs in this behalf expended of and from the said plaintiffs." On April 22, 1880, the defendants filed the following supplemental answer: "(1) That on the 11th day of March, 1880, the defendant N. McAlpine, under whom all the above defendants derive such title and possession as they have, and under whom all said other defendants claim, purchased all the right, title, and interest of Jennie M. James, Lewellen E. James, Solomon James, Virginia James, and Annie James, sole heirs and legal representatives of David E. James, deceased, in and to the property in controversy herein, which said purchase was wit-county. nessed by a deed of conveyance made by the said parties named James unto said N. McAlpine, on the date above named. That said deed of conveyance was made after this suit was commenced, and was duly recorded on the date above named in the office of the register of deeds in Wyandotte county, Kan. That by reason of the premises the said defendant N. McAlpine, and the defendants under him, according to their right, became vested with all the right, title, and interest of said parties named James, whatever the same may be. "Know all men by these presents that (2) Defendants say that on the 29th day of I, David E. James, of the county of Wyan、 July, 1879, they purchased of J. C. Douglas, dotte, and territory of Kansas, do hereby as attorney in fact for I. C. Richards, the bind myself, my heirs and assigns, to conholder and owner of a tax-title upon the vey unto James Gladden, his heirs and aslands in controversy herein, all the right, signs, by a good and valid deed, one undititle, and interest of said Richards and his vided ten acres of the west half of the southwife, H. S. Richards, in and to the lands in west quarter of section No. 11, and of the controversy herein, and obtained from said east half of the south-east quarter of No. Richards and his wife, H. S. Richards, a 10, in township No. 11, being in the forks of deed of conveyance for said lands, dated as the Kansas and Missouri rivers, in the aforesaid, which said conveyance contained county of Wyandotte, K. T., and all conthe name of said N. McAlpine as grantee, sisting of one undivided ten (10) acres. It and was duly executed, acknowledged, and is hereby covenanted and agreed that the delivered to said McAlpine; by reason aforesaid conveyance shall be made at any whereof all the right, title, and interest of time within one year from the date of this said Charles I. Richards in and to the lands instrument. It is also agreed and underin controversy herein passed to the defend-stood that said conveyance is to be made ant N. McAlpine and the other defendants subject to and in accordance with the terms herein according to their rights. And de- and conditions of a certain mortgage given fendants hereby give notice on the record | upon said real estate by said James to one that said conveyance will be used in evi- Silas Armstrong, and which is recorded in dence on the trial of this case, and the de- the proper office of the county of Wyanfendants will urge the titles acquired there- dotte, K. T. under in defense of this suit." Subsequently the plaintiffs filed the following reply: For reply to the further and supplemental answer of defendants, filed herein April 22, 1880, said plaintiffs deny each and every allegation thereof, and also deny that said Jennie M. James, Lewellen E. James, Solomon James, Virginia James, C. I. Richards and wife, have ever had, and also that any or either of them have ever had, any right, title, interest, or estate to or in the lands sued for. Plaintiffs therefore pray judgment as prayed for in their petition."

66

At the December term of the district court of Wyandotte county, of 1881, the case was tried to the court without a jury, and judgment rendered in favor of the plaintiff for a recovery of the land sued for. The case was taken upon error to the supreme court, and the judgment reversed. 28 Kan. 825 and 29 Kan. 513. Subsequently the cause was taken on change of venue to the district court of Shawnee county, and

"In witness whereof I have hereunto set my hand and seal, this 5th day of March, A. D. 1860. DAVID E. JAMES. [L. S.]

"Know all men by these presents that the within-named James Gladden, in consideration of one thousand dollars to me in hand paid by Henry R. Seegar, the receipt of which I do hereby acknowledge, have bargained, sold, assigned, and set over all my right, title, interest, claim, property, and demand whatsoever in and to the within bond unto the said Henry R. Seegar and his assigns forever.

"In witness whereof I have hereunto set my hand and seal, this 5th day of March, A. D. 1860.