State v. Hansen (Nev.)... Page 753 Territory, Black v. (Wyo.)... 735 Thompson, Landsman v. (Mont.). 754 Tibbits, Ontario State Bank v. (Cal.)... 428 Tonielli, People v. (Cal.).. State Journal Co. v. Commonwealth Co. (Kan.). Steele v. Boley (Utah).. 326 Treahey v. Holliday (Kan.)... Treathart, Pond v. (Kan.)....... 982 Trousclair v. Pacific Coast Steam-Ship Co. 311 (Cal.).... ..1082 258 Steele v. Holladay (Or.).. Stock-Growers' Bank v. Newton (Colo.)... 444 Uncompahgre Canal Co., Williams v. (Colo.)... .1125 Union County, Ames v. (Or.).... 203 Union Pac. Ry. Co. v. City of Kansas City (Kan.) 806 118 633 598 United States v. Bredemeyer (Utah). 954 United States v. Douglas- Willan Sartoris Co. (Wyo.).. United States v King (Mont.).. 110 92 498 Strombaugh, Silver Bow County v. (Mont.) 453 Strother, Falk v. (Cal.)... 676 Usher, Leavenworth, N. & S. Ry. Co. v. (Kan.) 734 Stuefen v. Jefferis (Mont.). Sullivan, State v. (Mont.). 152 .1088 Utah Cent. Ry. Co., King v. (Utah).. 158 Tennison, State v. (Kan.).. Territory v. Bryson (Mont.). Territory v. Campbell (Mont.). Territory v. Daniels (Utah). Territory v. Guyot (Mont.). Territory v. Jaggers (Mont.).. Territory v. Johnson (Mont.). Territory v. Lannon (Mont.)... Territory v. Olsen (Utah). Territory v. Pendry (Mont.). Territory v. Roberts (Mont.).. Territory v. Stocker (Mont.). 695 Wadsworth v. Wadsworth (Cal.).. 67 Wadsworth, Showers v. (Cal.). 714 Wakeham v. Barker (Cal.).. 550 Walker, Wise v. (Cal.).. 193 Walkerly's Estate. In re (Cal.).. 550 Walkerly's Estate, In re (Cal.).. Walton v. First Nat. Bank (Colo.). Wade, Beaton v. (Colo.)... .1093 648 663 .1131 293 888 889 440 485 Ward v. Matthews (Cal.).. 257 Warner, Broquet v. (Kan.). 187 ..1004 557 Watkins, Chicago, K. & W. R. Co. v. .1082 (Kan.). 985 880 Watkins, Wooley v. (Idaho).. 102 429 Watson, State v. (Kan.).. 378 Wilkins v. Tourtellott (Kan.). 11 Woodward v. Oregon Ry. & Nav. Co. (Or.) 1076 102 Worthington, Fallon v. (Colo.).. 960 412 .1120 262 Willamette Val. R. Co., Moakler v. (Or.).. 948 Wilson, State v. (Kan.).. Wing, Coulson v. (Kan.).. 665 570 Younglove v. Steinman (Cal.). 189 501 Yerian v. Linkletter (Cal.)... Wright, Woodard v. (Cal.). ....1118 ..1136 THE Pacific Reporter. VOLUME XXII. (2 Idaho [Hasb.] 503) BURKHART, Speaker of the House, v. REED, | been signed by plaintiff, H. Z. Burkhart, the speaker, and said defendant Reed refuses to present the same to said speaker for his signature, but that said defendant Reed, in preparing a record of said minutes, omitted Rev. St. Idaho, § 124, provides that the clerk, at a part of the said proceedings; that in the close of each session of the legislature, must arrange all bills and papers, and deliver them to truth, on the sixtieth day of the said sesthe secretary of the territory, who must certify sion, February 7, 1889, just before 12 o'clock to their reception. Section 190 charges the secre- P. M., the said speaker inquired if there was tary of the territory with the custody of journals any further business; that the clerk replied of the legislature. Section 1844 of the organic act there was none; said speaker then requestprovides that the secretary shall record and pre-ed the journal to be read, which was done serve all the laws and proceedings of the legisla- by the clerk; that thereupon the proceedture. Held, that mandamus would not lie, on the application of the speaker of the house of repre- ings, as recorded in said journal, were apsentatives, to compel the secretary of the territory proved by the house of representatives, and to produce a document delivered to him by the clerk by said speaker declared to be approved; of the house, and purporting to be the journal that thereupon, the hour of 12 o'clock midhereof, signed by the speaker pro tem., in order night having arrived and passed, the speakthat petitioner might make corrections therein, er did, after said hour, declare and anand to receive the corrected journal as the journal nounce that the time having arrived when, of the house. BERRY, J., dissenting. by act of congress, the session of the legisApplication for mandamus by H. Z. Burk-lature must close, therefore he, as speaker, hart, speaker of the house of representatives of Idaho territory, against Chas. H. Reed, chief clerk of the house of representatives of Idaho territory, and Edward J. Curtis, secretary of said territory. thereby then and there declared said session closed and adjourned without day; that no objection was made by the house, or any member thereof, to the said adjournment, or to the authority of said speaker to declare the same adjourned, but all acquiesced therein; that after the speaker and a Arthur Brown, Lyttleton Price, Texas Angel, and S. B. Kingsbury, for petitioner. R. Z. Johnson and Albert Hagan, for re-part of the members had retired from the spondent Reed. Jas. H. Hawley and John S. Gray, for respondent Curtis. WEIR, C. J. This is an application by the plaintiff for a writ of mandate to be directed to the defendants above named. The grounds upon which the writ is asked are fully set out in the petition of the plaintiff, which is as follows: "The above-named plaintiff, H. Z. Burkhart, shows that he was the duly-elected speaker, and is now the actual and acting speaker, of the house of representatives of Idaho; that defendant Charles H. Reed is chief clerk of the house of representatives, and Edward J. Curtis is the secretary of the territory of Idaho; and for cause of action for mandamus alleges that the said defendant Chas. H. Reed has in his possession, as such chief clerk, the minutes of the proceedings of said house of representatives for the last day of the fifteenth session; that the same has not yet room a portion of the members pretended to elect a speaker pro tem., to-wit, one George P. Wheeler, and assumed and attempted to proceed with pretended legislation; that a large number of assumed and pretended bills were assumed to be passed by the said remaining members, and pretended to become the acts of the legislature; that all pretended proceedings on said last day after the speaker retired were after 12 o'clock midnight, and after said house had been adjourned; that in preparing the journal of said proceedings said clerk omitted to state, and did not state, that the minutes were read and approved by the house; that the speaker declared the house adjourned; that the house was adjourned by the acquiescence and assent of all the members, and that the speaker pro tem. was elected after the said adjournment, and the subsequent pretended legislation had and done after such adjournment; that said chief clerk, Chas. H. Reed, pretends and as 1 Delay in publication caused by failure to receiveserts that he has made up the journal of copy earlier. v.22p.no.1-1 said iast day's proceedings, has procured there is a misjoinder of parties defendant herein; that this defendant, as secretary of Idaho territory, is joined as co-defendant with Chas. H. Reed, clerk of the house of representatives of Idaho territory; that there is no community of interests or duties between said defendants, and no act, the performance of which this writ was issued to and the writ herein requires different and separate acts from each of said defendants; fifth, that several causes of action have been improperly joined herein in this: that the defendant Chas. H. Reed is required to do and perform certain acts, and this defendant required other and different acts, which acts have no relation to each other; sixth, that it does not state facts sufficient to constitute a cause of action; seventh, that the same is ambiguous and uncertain in this: it does not appear what is required of this defendant; it does not clearly appear who is to make the alterations in the records and journals; it does not appear who has the possession of the journals and records of the house of representatives, or who did have the possession at the time of the commencement of this action." the signature of said Wheeler as speaker | must have been brought upon the relation of pro tem., and delivered the same to Edward the proper prosecuting officer; fourth, that J. Curtis, secretary of the territory, but the minutes of proceedings as prepared by said Reed omit the matter as hereinbefore alleged to be omitted, and is a false statement or record of the said proceedings; that the said secretary, Edward J. Curtis, treats and wrongfully holds out the minutes so signed by said Wheeler and the chief clerk as the true minutes, record, and jour-enforce, could be jointly performed by them, nal of the house of representatives, and is recording the same as such journal, and threatens to certify them to congress as the journal of said house of representatives; that he knew that said proceedings of the last day were not signed by the speaker; that plaintiff, by his attorney Lyttleton Price, has filed, to-wit, on the 9th of February, 1889, and before the same were recorded with said secretary, Edward J. Curtis, a demand in writing that he do not record said proceedings, and a protest against the same on the ground that they were not the correct record of the proceedings of the house of representatives; that the plaintiff did, on the 8th day of February, 1889, demand of the defendant Chas. H. Reed that he present said minutes of proceedings to the plaintiff for signature; that he failed and refused, and still fails and refuses, to so produce the same; that the rules and prac-writ is derived from section 3816 of the Retice of said house of representatives require that the said defendant Reed present all the minutes of proceedings thereof to the plaintiff, as such speaker, for his signature. Wherefore, plaintiff prays that said Edward J. Curtis may produce in court the original minutes, record, or proceedings delivered by said Reed to said Curtis, and that said defendant Chas. H. Reed be required to prepare said journal according to the facts as hereinbefore set forth, and state that said minutes were read and approved; that after the hour of 12, midnight, of February 7, 1889, the speaker declared said house adjourned sine die; that the house did not object to such adjournment, but acquiesced therein, and all of the other proceedings hereinbefore stated; and that such journal be handed to the speaker to sign, and thereafter, when so amended and completed, to be delivered to said secretary of the territory as the minutes of the proceedings of said last day, or that said defendants show cause forth with why said defendants should not do so." The jurisdiction of this court to issue the vised Statutes, which is as follows: "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 of demurrer as hereinbefore set forth, but will confine our attention to the sixth ground: "That it does not state facts sufficient to constitute a cause of action." The disposition of the case upon this ground disposes of it according to our view, and renders it unnecessary for us to consider any further point. The petition for complaint alleges that the plaintiff was the duly-elected speaker, and is now the actual and acting speaker, of the house of representatives of Idaho; that the defendant Charles H. Reed is chief clerk of the house of representatives, and Edward J. Curtis is the secretary of the territory of Idaho; that Charles H. Reed has in his possession, as such chief clerk, the minutes of the proceedings of the said house of representatives for the last day of the fifteenth sesUpon this petition the court granted an sion; that he refuses to present the same to alternative writ of mandate, which was the plaintiff for his signature, and has premade returnable on the 14th day of Febru-pared a record of said minutes, omitting ary, 1889, to which the defendant Curtis de-a part of the said proceedings. The petimurred, and assigned for grounds of de- tion then proceeds to set forth certain facts murrer the following: "(1) That this court which it alleges took place in the house has no jurisdiction of the person of the de- of representatives, but that the defendfendant. (2) That this court has no juris-ant Reed has omitted such proceedings diction of the subject-matter of this action. from the minutes; and proceeds to allege (3) That the plaintiff has not legal capaci- that the said chief clerk has made up a jourty to sue, in this: First, that the plaintiff nal of said last day's proceedings, has prowas not at the time of the commencement of this action, and is not now, the speaker of the house of representatives of Idaho territory; second, that the plaintiff has no beneficial interest in the result of this action; third, that if the plaintiff is now, or was at the time of the commencement of this action, speaker of the house of representatives of Idaho territory, this action should and cured the signature of one Wheeler, as speaker pro tem., and has delivered the same to Edward J. Curtis, secretary of the territory; that the minutes of proceedings, as prepared by said Reed, omit the matters alleged in the said petition to have been omitted, and is a false statement or record of the proceedings; that the secretary, Edward J. Curtis, wrongfully holds |