Dissenting. — In this case I am constrained to dissent from the opinion of my associates, sustaining the demurrer in this proceeding, and I deem it necessary and proper that the grounds of such dissent be stated. The object of the proceeding is to secure the issuance of a writ of mandamus against certain public officers. I shall at first confine my attention to this case, and afterward refer to the similar case of Clough v. Curtis, post, p. 523, 22 Pac. 8. It is a familiar principle in law and practice that the allegations of a pleading demurred to shall, for the purposes of that proceeding, be taken as true. The allegations of this complaint are, therefore, to be taken as admitted. I copy the body of the complaint in *514this case, together with the demurrer, and make them a part of this dissenting opinion. The following is the complaint: “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 Charles H. Reed has in his possession, as such chief clerk, the minutes of proceedings of said House of Representatives for the last day of the fifteenth session; that the same have not been signed by plaintiff, H. Z. Burkhart, the Speaker, and the 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 a part of the said proceedings; that in truth, on the sixtieth day of said session, February 7, 1889, just before 12 o’clock P. M., the said Speaker inquired if there was any further business; that the clerk replied that there was none; said Speaker then requested the journal to be read, which was done by the clerk; that thereupon the proceedings, as recorded in said journal, were’ approved by the House of Representatives, and by said Speaker declared tó be approved; that thereupon, the hour of 12 o’clock, midnight, having arrived and passed, the Speaker did, after said hour, declare and announce that, the time having arrived when, by act of Congress, the session of the legislature must close, therefore he, as Speaker, 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 the said Speaker to declare the same adjourned, but all acquiesced therein; that after the Speaker and part of the members had retired from the room, a portion of the members pretended to elect a Speaker pro tern., to wit, one George P. Wheeler, and assumed, and pretended to proceed with the 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 re*515tired, 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 tern, was elected after the said adjournment, and the subsequent pretended legislation had and done was after such adjournment; that said chief clerk, Charles H. Beed, pretends and asserts that he has made up the journal of said last day’s proceedings, has secured the signature of said Wheeler as Speaker pro tern., and delivered the same to Edward J. Curtis, secretary of the territory; but the minutes of proceedings, as prepared by said Beed, omit the matter as hereinbefore alleged to be omitted, and are a false statement or record of 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 journal of the House of Bepresentatives, and is recording the same as such journal, and threatens to certify them to Congress as the journal of said House of Bep-resentatives; 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 ninth day 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 Bepresentatives; that the plaintiff did, on the eighth day of February, 1889, demand of the defendant, Charles H. Beed, 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 practice of said House of Bepresentatives require that the said defendant Beed present all the minutes of proceedings thereof to the plaintiff, as such Speaker, for his signature. WTherefore plaintiff prays that said Edward J. Curtis may produce in court the original minutes, record or proceedings delivered by said Beed to said Curtis, and that said defendant, *516Charles H. Eeed, 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 o’clock, midnight, of February 7, 1889, the Speaker declared said House adjourned sine die; that the House did not object to said adjournment, but acquiesced therein, and in 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 defendant show cause forthwith why said defendants should not do so.” This complaint was verified.
DEMURRER.
“Now comes the defendant, Charles H. Eeed, and demurs to the alternative writ of mandate herein filed, on the grounds that it appears on the. face thereof (1) that this honorable court has no jurisdiction of the subject of this proceeding; (2) that the court has no jurisdiction of the person of the defendant in this proceeding; (3) that said IT. Z. Burkhart has not legal capacity to sue in this proceeding; (4) that there is a misjoinder of parties defendant in that said alternative writ joins this defendant and Edward J. Curtis, the secretary of the territory and an officer of the Hnited States, as defendants; (5) that several causes of action have been improperly united, in that relief is demanded against this defendant, on the ground that this defendant has in his possession certain proceedings of- the House of Eepresentatives of the territory, and another alleged and distinct cause of action is stated against Edward J. Curtis, the secretary of the territory, on the ground that said Edward J. Curtis, as such secretary, has possession of said proceedings; (6) that the same does not state facts sufficient to constitute a cause of action, or to entitle said plaintiff to relief by writ of mandamus against this defendant; (7) that the same is ambiguous, unintelligible and uncertain in this: that it is first averred therein, as a ground of relief against this defendant, that this defendant has in his possession the minutes of the proceedings sought to be reached herein, as a ground of relief against the said de*517fendant, Edward J. Curtis, secretary of the territory; that this defendant has filed said minutes with said secretary, as this defendant is required by law to do; and that said secretary retains and preserves the same, as he is required by law to do.”
Not having had an opportunity until the present moment to see or know the tenor or effects of the points made in the opinion of my associates upon the bench, beyond the bare fact that the demurrer was to be sustained, the scope of my observations may be, perhaps, beyond the required .limits, made necessary by the opinion dissented from. But I will follow in some degree the order of the argument of the leading counsel in support of the demurrer.
1. There is, I think, no room for a serious question that this court has full and complete power to issue the writ as prayed; also, that it has jurisdiction of the subject matter of the complaint. The power to issue writs of mandamus must be vested somewhere, and the legislature, in plain and unequivocal terms has conferred it upon this court. It seems to me too plain to admit of any doubt. Section 1866 of the Revised Statutes of the United States says: “The jurisdiction, both appellate and original, of the courts provided for in sections 1907 and 1908 shall be as limited by law”; and in section 1907: “The judicial power in New Mexico, Utah, Washington, Colorado, Dakota, Idaho, Montana, and Wyoming shall be vested in a supreme court, district courts, and probate courts, and in justices of the peace.” Revised Statutes of Idaho, sections 3815, 3816, title 2, entitled “Of the Supreme Court,” are as follows, viz.: “The jurisdiction of this court is of two' kinds: 1. Original; and 2. Appellate.” 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. Section 3817 defines its appellate jurisdiction.
2. So of the jurisdiction of the court over the persons of both defendants. It makes no difference that one of them, the secretary of the territory, is appointed by the President of the United States. He is not, therefore, the executive branch of the United States government, nor even of the territory of Idaho. Congress has declared, in the organic act of the terri*518tory, that the executive power of the territorial government is vested in the governor alone. The secretary is no more above tho laws than the marshal, the TJnited States district attorney, or the deputies of either of these officers, or the most humble person in the land. (Kendall v. United States, 12 Pet. 608; United States v. Schurz, 102 U. S. 372.) The authorities are numerous and clear that even cabinet officers are equally subject to the mandate of courts with any other person; but it is not necessary to cite those authorities. The one principally relied on by the defendants is that of Marbury v. Madison, 1 Cranch, 137. But that ease was decided on other grounds than the official character of the party defendant. Congress supplied the defect found in the law in that case by conferring the needed power to issue the writ on the courts of the District of Columbia. Since then cabinet officers have constantly been held subject to the jurisdiction of courts with no more power than has this court. If the court can issue a writ at all — of which there is no doubt — no case can reasonably be supposed, unless it be the case of Clough v. Curtis, post, p. 523, 23 Pac. 8, now pending in this court, involving a part of this controversy, calling for the exercise of this power more emphatically than do the admitted facts in the case at bar. If cabinet officers are thus within the jurisdiction of the court, there is certainly no ground for an inferior officer of a territory to claim greater immunity, simply because he is appointed by the President. They, also, are appointed by the President, and stand nearer to him than any officer of the territory. The counsel for the secretary practically admits this by saying that a state court cannot issue a writ of mandamus to an officer commissioned by the United States, except as they are authorized by the United States. I think the counsel is mistaken in this, and that he will find that, while the rule as to state courts is not universal, it applies only where the officer’s duties are purely federal, as in the case of a United States land officer; but not in such a case as this, where the officer is not in the service of the United States, but only an inferior officer of the territory acting in and for the territory. But even if it were otherwise, this court has federal jurisdiction, as well as territorial. I suppose that fact will not be disputed. I can see nothing valid in the objec*519tion that a territorial officer is not amenable to the laws because he is commissioned by the President of the United States.
3. The plaintiff has an unquestionable power to sue. He was, and still is, the Speaker of the House, and as such, had, and still has, the exclusive right to the performance of the duties set forth in the complaint. The public requires it of him, even if no executive or administrative officer can be found willing to assist him to his own and the public right. If that right is invaded, as by the defendants’ demurrer it is admitted to be in this ease, he may invoke the aid of this tribunal to enable him to perform his sworn duties to the public. Any member of that legislative body may interpose to preserve the lawful records of its proceedings, and prevent the dearest rights of the community, the very foundation of its laws — the evidence upon which the interests ,of thousands depend — from being, in a wholesale manner, falsified and debauched. It was shown on the argument that in a matter vital to the public any citizen may institute proceedings by mandamus. (High on Extraordinary Remedies, secs. 431-433; Railroad Co. v. Hall, 91 U. S. 354; Hall v. Railroad Co., 3 Dill. 521, Fed. Cas. No. 5950.) In Railroad Co. v. Hall, supra, the supreme court of the United States held that mandamus was correctly brought by a citizen of Council Bluffs to compel the Union Pacific Railway Company to fulfill its contract with the United States to build a bridge across the Missouri river. This case meets the objection raised by the demurrer on this point, without at all referring to the official character and rights of this plaintiff. The contract with the United States on the part of the (Union Pacific Railway Company was one to enforce which the attorney general would have been a proper officer to sue out the writ, and might have done it; but, as he did not do it, the court held that any other citizen might do so.
4. It is also contended that there is a misjoinder of defendants. No; there is no misjoinder if the facts are as stated in the complaint, and the demurrer admits them. What papers the secretary has are admitted to be unsigned, mutilated, and fraudulent papers, and are not “archives of the legisla-: ture,” which alone the secretary has a right to receive, any more than would be the records of a baseball club, or any other *520unlegislative association or gathering. Of this he was, and is, duly apprised. If what is admitted to be true are real facts, the secretary is aiding and abetting the clerk in his attempt to foist upon the territory as records what are not records, to be used, if at all, as conclusive evidence to establish as facts what are not facts, and that legislative acts were done which it is admitted were never done by a legislature. The joining by these two officers in the perpetration of a grave wrong, one doing one part and the other completing it, makes them both particeps, and subject to the same process, if necessary, for its correction and prevention. In this case it is necessary. The secretary must produce the fraudulent papers, abstain from treating them as genuine, or, as he threatens to do, from recording them and sending them to Congress, and the several officers of the United States government, as genuine, or in any way to act upon them, until the clerk shall write them truthfully, and they shall have the necessary official sanction of the chief officer of the House, whose proceedings they profess to record, and until they thereby become real records and archives of the legislature. There is no misjoinder.
5. Proceeding in the order of the attorney for the secretary, we may here inquire whether the session of the legislature did, in fact, expire with the seventh day of February, 1889. The inquiry is not necessary, perhaps, for the fact is admitted. But let us look into the facts and the law. It met on the tenth day of December, 1888. That was its first legislative day, and so appears on its journals. The session began with the beginning of that day. The claim that it did not begin till noon of that day, and hence that the first day should end at noon of the next day, and so for each day through its session, to the sixty-first day, simply because the territorial legislature had enacted that the legislature should meet at noon of the day appointed for the meeting, cannot for a moment be maintained. If such a thing could be, there would be no meridian to the legislative day. It met at 12 o’clock M.: that day’s noon would be midnight. The law takes no notice of fractions of a day. Congress has said how long the session should continue, and it'was not competent for the territorial legislature to prolong the time. This act of Congress is in the following words, and *521has all the force of a constitutional provision: Bevised Statutes of the United States, section 1852, says: “The sessions of the legislative assemblies of the several territories shall be limited to sixty days’ duration.” The act of the legislature fixing the hour recognizes the second Monday of December as the first day of the session. The section (Idaho Eev. Stats.) is as follows : Section 122. “At the hour of 12 o’clock M., on the day appointed for the meeting of any regular session of the legislature, the presiding officer, or, in his absence, the chief clerk of each House of the last session, must call the same to order, and preside until a presiding officer is chosen, or, in case of the absence of both of said officers, the senior member present must perform said duties. All members-elect present, having certificates of election from the clerk of the board of county commissioners of their respective counties, and no other person, has the right to participate in the organization of the respective Houses. Neither House must organize or transact business, but must adjourn from day to day until a majority of all the members authorized by law to be elected are present.” It does not pretend to extend the time fixed by Congress, but merely fixes the hour of meeting, and declares it shall meet at noon of that day. There is nothing whatever in the statute, or either of them, or in the construction given them by either branch of the legislature in the numbering the days of the session, to justify this extraordinary claim. Both bodies counted in their journals the tenth day of December as one day of the session, and numbered from it. Even the bodies which met, as is alleged, on the eighth day of February, admit the hollowness of this pretense, by claiming its acts to have been done on the 7th of February instead of on the day on which it is admitted they were in fact done. They themselves seek to take shelter under a false date. Were there anything in this claim, no reason is apparent why acts done before noon of the 8th should be antedated a day to bring them within the law.
6. It was clearly the duty of the presiding officers of both Houses to obey the law; and, when the constitutional time had expired, to declare the session ended. Such action is abundantly sustained by both authority and precedent. In this ease the acts of both presiding officers were acceded to by both *522Houses. What occurred in the House also occurred in the council. When the minutes of the last day had been read, and formally approved in the House by the members in session, and the clerk had publicly announced that there was no more business before the House, and the Speaker, at 1 o’clock in the forenoon of the 8th of February, declared to the listening House that the hour fixed by Congress for adjournment had arrived and passed, and that, in view of such fact, he, as presiding officer, declared that session ended, and there was no objection or appeal from this decision, that session was ended. Three things concur to give force and effect to the solemnity of his act: 1. The expiration of the time fixed by Congress; 2. The official action of the presiding officer; and 3. The assent and concurrence of the entire body. Whether, under such conditions, the House broke up, as is conceded it did, or all members remained in their places, is of 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 a legislative body, and all its acts pretending to be legislative acts are, in fact, absolutely null and void.
7. It follows from the facts that this so-called 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 purpose, of real legislative records, or whether such real records can or cannot be impeached collaterally, and any»and all questions, and, I think, either in the majority of opinions of this court, or otherwise, based on a presumption founded on real records, are wholly irrelevant, and do not bear on this ease. These questions comprise most of the arguments of these demurrants, and have no bearing on the case before this court. They are collateral merely. Those papers are not called in question collaterally, but directly, by proceedings provided by law to determine whether they are, in fact, records of a legislative body or not; and, if not records, then to have them, or such of them as are not records, so declared, and to have the spurious por*523tions 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 ease of Clough v. Curtis, supra, as to this case. The facts in the two eases are, in the main, the same, only that like proceedings took place in the council as in the House, and except that in that ease 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.