A MONSTROUS ATTEMPTED judge zones zanes decision to remove from office those whom the people elected ithe revolutionary move to place all territorial Off officers leers in the hands of the rulle rule or ionin clique following is the full text of judge zanes ruling delivered in the third district court co art this morning declaring the acts of the legislature making elective territorial officers invalid and orde or derine the present incumbents nephi neph W clayton auditor of public accounts and james jack territorial treasurer to vacate their offices this case of tile the people of the territory of utah on the relation of wm win H dickson united states district attorney for said territory plaintiff vs ne nephi W clayton defendant this his is a proceeding under chapter 5 page of the statutes of 1884 the first section of the statute describes the causes or the wrongs for which this chapter furnishes the remedy section is as follows an action may be brought in the name of the people of this territory against again stany any person who usurps intrudes into holds or exercises an any y office or franchise real or pretended within this territory without authority of law such action shall be brought by the prosecuting attorney of the proper county when the office or franchise relates to a county precinct or city and when such office or f franchise ran relates to the territory by the united states district attorn attorney ei ind and it shall be the duty of the proper officer upon proper showing to bring such action whenever he has reason to believe that any such office or franchise has been usurped intruded into held or exercised without authority ot of law this statute has changed the form of pleading with respect to rights and wrongs for or which a writ of quo war was formerly the remedy but the chan change geis is held by weight of authority as s simply 1 PI y as to the form not as to the an substance 1 ta ce the position of the parties and the rules of evidence and the presumption of law remain the same as before this statute went into force or into effect the statute here in this territory is the same substantially as ai those in new york california and other states in the case of the people on the of judson thatcher in the 55 new york page the court says after discussing the remedy the forms of procedure have been changed but the position of the defendant fen dant and the rules of evidence and the presumptions of law and fact are the same as in the proceeding by writ or information for which the remedy by ac action tion was substituted the people are here the ultimate source of the right to hold a public office and now as heretofore when the rig right t of a person exercising 11 an office is challenged in a direct proceeding by the attorney general the defendant must establish his title or jud judgment ment will be rendered against him it it results from these considerations that the defendant defenda n t in order to have judgment in his favor was required to prove that he was elected to the office of mayor at the election held in april 1872 the possession of the office was not in this action evidence of his right so that the position of the parties and the rules of evidence and the presumptions of law remain the same as they were when the writ of quo war was enforced or where it is now enforced section of hiah high on extraordinary legal remedied is as follows As regards the question of intrusion into or usurpation of the office to test which an information is filed it is regarded as sufficient to allege generally that the respondent is in possession of the office without lawful authority tho rity and in case the pleadings are defective in this respect the defect is one which should be taken advant advantage ag e of by special demurrer SE SECTION atron 1 when the proceedings are instituted for the purpose of testing the title to an office the proper course for a respondent is either to disclaim or to justify if he disclaims all right to the office the people are at once entitled to judgment as of course if upon the other hand the respondent seeks to justify he must set out his title specially and distinctly and it will not suffice that he alleges generally that he was duly elected or appointed appoint ea to the office but he must state he was appointed and it if appointed to nil fill vacancy caused by removal of the former incumbent the particulars ot of the dismissal as well as of the appointment must appear the people are not bound to snow show anything and the respondent must show on the face of his plea that he has a 4 valid and sufficient title and if he falls fails to exhibit sufficient authority for ex er elsing the functions of the office the people are entitled to judgment of 0 ouster aster unless therefore the re spon dent disclaims all right to the office and denies that he has assumed to exercise its functions he should allege such facts as if true invest him f ully fully with the legal title otherwise he is considered as a mere usurper 1 from this authority and it is a statement of the weight of authority it appears that the burden of proof and of allegation as well is upon the defendant in a proceeding of this character to show that he has a legal right to the office to show his title the respondent in this case has demurred to the complain tand the question is I 1 Is this complaint sufficient as against him in view of the statute referred to and of the rules of pleading and of proof as stated in the authorities referred to I 1 I 1 the allegation is so far as it relates to the respondents right the people of the territory of utah by william H dickson united states district attorney for said territory complains of the said defendant complains and a alleges leges that heretofore to wit in the year ye arAD AD 1879 the said defendant fen dant nephi W clayton did usurp and intrude into the office of auditor of public accounts in and for the said territory of utah and ever since that time he be has and does still hold and exercise the functions of said office without authority of law I 1 I 1 this complaint so far as it relates to the defendant is substantially in the terms of the statute it sets forth that in the year 1879 the defendant usurped and intruded into the office of auditor of public accounts of the territory of utah and lurther further it states that since that time he has and does still hold and exercise the functions of said baia office without authority of law in many crini criminal hial proceedings it is held that the offense is sufficiently described if with the addition of dates and names and venue the indictment follows as in the terms of the statute where it is 18 a statutory offense and the 4 offense is described in the statute i it is insisted that this is a statement j of conclusions and not of facts and the principal objection is to the concluding I 1 portion of the to sets up the wrong complained of the complaint is hold and exercise the f functions of said office without authority of law it would atwould have been more morea specific if the party had stated without appointment assuming the P plaintiff faint in v view lew of the law to be correct et or wit without hout due appointment but B t there I 1 is only ol 01 y one way according to the view of the law which the plaintiff takes if he is correct in it by which the party could have lawfully come into the office and that would be by nomination and confirmation by the territorial rit orial council as the party tame came in according to the allegation here in the year 1879 and it is alleged anaed that that was wrongful and anat he wrongfully continues to hold still in the office by virtue ot that usurpation in complaints of this character when the burden is upon the defendant both i of allegation and of proof to show his right where his right to the office is challenged by br the people it is not necessary to 0 show to point out 1 with great particularity the acts which j constitute the wrongful usurpation or 1 the wrongful holding of the office this in the light of the california calif ornia de 1 cl ci without referring to them I 1 am disposed to hold as sufficient tent and I 1 j am disposed to hold that it is sufficient on principle in a edse case of this character 4 if respondent the holds the app appoint 0 int i 1 ment it is something that he has in his pbs possession session and it is not therefore necessary to state with any degree of particularity and describe that ap because it being in hi his possession it is sufficient to deny his legal right and to challenge his i light in 1 that way and then it is his duty to justify and show his authority there are other allegations in this complaint but they relate to the plaintiff pratt these under the authorities I 1 am dis Dosed to hold are not now in question oti the question therefore arises Is the respondent justified do the facts stated in his answer show that he has a legal title to his office his statements are as follows further answering the complaint cAmpI aint of said plaintiff and for a separate answer i thereto defendant alleges that on the 1 day of august 1880 he wa was 8 a c citizen it izen of the united states over the age of 21 J years and he was then and there and k at all times since has been and now is eligible under the laws to hold office in i utah territory f that an election by the people of oft i utah territory was held on the seconds monday in august 1880 that at saida said time said defendant was the incumbent in said office having been elected to t said office theretofore that on said last named date defendant was again elected by the people of said territory terri doiy to be auditor of public accounts for the territory of utah and alleges further that afterwards in september 1880 the governor of the territory under his hand and seal issued to the defendant a commission as said auditor which was also signed by the secretary of sald territory those these are the thi allegations so far as it is necessary to statue them MB his right 1 therefore ej de depends upon the election which he alleges occurred on the alst 1st lay day of august 1880 so far as there is any issue maa made in the the objection and it if that election was valid then the commission was valid if the election was invalid then the commission was without authority the election was held under the provisions of chap 11 of the statutes of 1878 commencing on page 27 the latter clause of section 4 of that chapter provides the territorial treasurer and auditor of public accounts shall be hereafter eleeter by the qualified voters at the general election in august A 1878 and biennially thereafter a and the present incumbents shall hold their respective spec tive offices and perform the duties of the same until the next general election and until their successors shall be elected and qualified this law was approved february 22 1878 two years I 1 believe before the election oc occurred currea at which the respondent spon 0 dent claims to have been elected this fh ls chapter should also probably be considered with chapter 1 of the statutes of the compiled laws of utah 1876 the first section of that statute provides that a treasurer and auditor of public accounts shall be elected by the joint vote of both houses of the legislative isla tive assembly whose term of office shall be four years and until their successors are elected and qualified unless sooner superseded by legislative election it seems that this provides for the election by the joint vote of both of the houses of tile the legislative assembly in this chapter there area are a number of sections and provisions which it is not necessary to tead read relating to this office and the office is described by mentioning the functions f that pertain to it by mentioning the authority which the officer may exercise and his qualification section 1 2 provides for the 9 giving iving of bonds and taking the oath of office section 6 5 for the giving of bonds and taking the oath of office again section 6 refers to the duty of the auditor and section 8 relates to the filling of vacancies and there are a number of other provisions which relate to this office it is insisted that if this law is invalid then there are no such offices as the offices ot of auditor and treasurer that it is impossible to hold that the portion of the statute which relates to the officer and establishes the office can exist without the provisions relating to his election this statute had in view two purposes one was the establishment of the office or offices mentioned and the other was the mode of selecting the ol ollices olf icer licer and the description of the functions aud and duties of the officer the rule role is where a provision of a statute consists of several provisions essential to the purpose and andone one of these provisions Is invalid au all of the provisions fail because it is to be presumed that the legislature intended all to 10 stand together and it would be impossible to carry into effect ithe statutes purpose without the benefit ot all the provisions relating to that purpose the office of auditor is one thing and the officer is another the office offic e in the legal sense and as I 1 believe it if was once stated by chief justice marshal is immortal that is to say it dont depend upon the life of any individual it continues while the off officers leers come and go 0 o and the office is ono thing and the officer another the office may be established 9 for the mode of filling it the office may be created and it may be filled by election by the legislative assembly or by the people of the territory or by appointment of the governor if the law so provides or by appointment of the governor by and with the advice and consent of the council or assembly I 1 am disposed to hold that these provisions these purposes are so separate and ais distinct that the law may be held invalid so far as it relates to the mode of filling the office and the selection of the of officer fleer and remain valid so far as it establishes tile the office the legislature ture unquestionably so understood it because they refer to these respective offices in the statutes of 1878 and they change the mode of filling the office instead of the office being filled as it was before they provide that the treasurer and auditor shall be elected by qualified voters at the general beneral election of august 1878 and biennially ienni ally thereafter the question therefore comes at last and it is the question in this case as to whether this law of 1878 and the statutes of 1852 are valid these statutes are valid if they were within the legislative power of the territorial legislature the warrant for the exercise of the powers of ithe athe territorial legislature is found in the organic act of the territory or in the acts of congress relating to the terri tory which constitute the organic act section 6 on page 30 of the statutes of 1876 provides and be it further enacted that the legislative power of said territory shall extend to all rightful subjects of legislation consistent with the constitution of the united states and the provisions of this act that was the power of the territorial legislature of course as it was then conferred according accord ing to tile the interpretation terp of congress and of the supreme court of the united states it must not only be consistent with the constitution of of the united states and the provisions of this act but also consistent with such other acts acis as congress may adopt the question is therefore whether the statute pro providing providen g for the election by the people of the auditor is consistent with the organic act section 7 provides and be it further enacted that all township district and county officers not herein otherwise provided for foi shall be appointed or elected as the case may be in such manner as shall be provided by the governor and