Harwood v. Wentworth

This is a contest as to the right to exercise the functions of the office of county recorder of Cochise county, territory of Arizona.

The defendant in error filed in the district court of the First judicial district of that territory, holden in Cochise county, a petition alleging that at a general election held in Arizona on the 6th day of November, 1894, he was duly elected to the office of county recorder of Cochise county, and thereafter, having first duly qualified, entered upon the discharge of his duties as such officer; that that county, at the time of such election, was what is denominated as a 'first-class' county of the territory; that, at a regular meeting of the board of supervisors of the county, he was duly elected and appointed to the office of clerk of that board, and, having qualified, entered upon the duties of the office; that thereafter, on or about March 21, 1895, the legislative assembly of Arizona, for the purpose of classifying the counties of the territory, and fixing the compensation of county officers, passed an act entitled 'An act classifying the counties of the territory, and fixing the compensation of the officers therein,' which was approved March 21, 1895, by the governor of the territory, and went into effect 30 days after its passage, namely, on the 21st day of April, 1895; and that, according to the provisions of the act, Cochise county became and is a county of the third class, and its recorder clerk ex officio of the board of supervisors.

The plaintiff averred in his petition that as recorder he was, and had been since April 21, 1895, ex officio clerk of the board of supervisors, and as such entitled to the possession of the books, papers, records, seals, and documents pertaining to that office, but the same were in the hands of the defendant, Harwood, who, upon demand duly made, refused to deliver them to the plaintiff.

The prayer of the petition was that a writ of mandamus be issued, commanding the defendant to forthwith deliver all of said books, papers, records, seal, and other documents to the plaintiff, as recorder of Cochise county and ex officio clerk of said board of supervisors; that plaintiff be adjudged to be such recorder and clerk; and that the defendant be enjoined and restrained from exercising or performing any of the duties of that office.

The petition having been supported by the plaintiff's affidavit, an alternative mandamus was directed to be issued, commanding the defendant o deliver to the plaintiff all the books, papers, etc., pertaining to the office of clerk of the board of supervisors of Cochise county, or to show cause, by a day named, why the writ should not be made final and peremptory in the premises.

The defendant, Harwood, averred that the act referred to in the plaintiff's petition, referred to in the record as 'House Bill No. 9,' was not a law; that the same did not pass the legislative assembly as alleged; that that act, 'as the same passed both houses of said legislative assembly,' contained a clause that it should not take effect and be in force before January 1, 1897; that that clause or section was stricken out, omitted, and taken from the act after the same had passed both houses of the assembly, but is a part of the act; that there was also a clause that 'all acts or parts of acts in conflict with this act are hereby repealed,' and that that clause was also omitted and stricken out in the same way; and that 'the said alleged act was not duly passed by the legislative assembly, or by either house thereof, and that the same is not a law.'

By consent of the parties the case was tried by the court upon a stipulation as to the facts, and without a jury.

It was agreed by the parties that the act of March 21, 1895, as it appears in the printed laws of Arizona for 1895, is filed with, and is in the custody of, the secretary of the territory, and is signed as it appears in those laws to be signed, namely, by the governor, the speaker of the house, and the president of the council.

The affidavits of A. J. Doran and J. H. Carpenter, and also the affidavits of Charles D. Reppy and Charles F. Hoff, with the exhibits attached thereto, were read in evidence, and were treated as containing a true statement of the journals and proceedings of both houses, and of the facts stated in them, subject to the objection by the plaintiff that the enrolled bill, signed by the governor, and lodged with the secretary of the territory, could not be attacked by any evidence.

The witness Doran stated that he was president of the council of the legislative assembly of the territory; that the session terminated March 21st; that it was his custom, as president, to sign bills when presented to him by the chairman of the enrolling and engrossing committee of either house; that it had been the practice to so sign bills when presented, whether the council was in session or not, though ordinarily it would be done when the council was in session; that, if signed when the council was in session, there was no formality gone through with; that the attention of the council was not called to the fact that the president was about to sign the bill, nor was its business interrupted for the purpose of signing the bill, nor was a member who was speaking interrupted; and that it was simply handed up to the president, and he would sign his name and hand it back.

The witness Carpenter, who was speaker of the house of representatives of the legislative assembly of the territory, testified: 'That the session terminated on March 21st. It was the universal custom for him, as such speaker, to sign bills when presented to affiant by the chairman of the enrolling and engrossing committee of either house. That affiant so signed them without reading them, or without comparing them in any manner, and that, as a matter of fact, he did not compare any one bill signed by him, before he signed it. It was his custom, and it has been the practice, to sign bills when presented, whether the house was in session or not. If signed when the house was in session, there was no formality gone through with. The attention of the house was not called to the fact that the speaker was about to sign a bill, nor was the business of the house interrupted for the purpose of signing bills, nor was a member who was speaking interrupted. The facts are that a bill was simply handed up to the speaker, and he would simply sign his name and hand it back.' He also stated that 'he is certain that house bill No. 9, when it p ssed the house, contained a clause that it should go into effect January 1, 1897.'

Hoff and Reppy were chief clerks, respectively, of the council and house of representatives of the territorial legislative assembly, by which the said act of March 21, 1895, purported to have been passed. Referring to the original bill, and to the numerous indorsements or minutes thereon made by them respectively, each witness stated that the bill, as it passed the body of which he was an officer, and therefore as it passed both houses, contained the clause, 'This act shall take effect and be in force from and after January 1st, 1897.' Consequently, according to their evidence, the omission of that clause from the bill occurred after it passed both houses, and while it was in the hands of the committee on enrollment.

Upon these facts the court found the issues for the plaintiff, and its judgment was affirmed in the supreme court of the territory.

The statutes of the United States, as well as the statutes of the territory of Arizona, which bear more or less upon the present controversy, are, for convenience, given in the margin.

Wm. H. Barnes, for appellant.

A. Wentworth,

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.