Show correspondence GREAT SALT LAKE CITY october 15 11 SIR having heard a portion 0 of f your decision from tiie the bench in relation to the legislature of the teni tory and believe believing it would be read with interest by many I 1 respectfully res beenu lly solicit a copy for the press gost most respectfully your W RICHARDS hon Z SNOW associate justice utah GREAT GRE SALT LAKE CITY oct 20 1851 S DEAR SIR your letter of the dinst requesting for the press a copy of my legal opinion delivered on my taking my seat as a justice of the united states court for this territory relating to thi the legal legality ty of the proceedings of his excellency governor yo young ung in in getting etting up and calling together the legislative assembly ey of utah came duly to hand band in sending you the cy copy I 1 deem it a duty dut y I 1 owe tp myself to remind you I 1 that at a the act of them the assembly re me to hold a court the first monday of this month was approved on the ath this allowed rue me but a few days to examine the facts fact and law of the matter these facts would not have been examined by me nor any opinion n given given had not prior to that time the other othe two Justices i e and the secretary of the territory left for the states throwing out hints and opinions quite different from my own this b eing being the cos case 1 I felt it a duty to examine the facts and express the the opinion doing so it became public property which authorizes you 70 to use ube it as you think best very respectfully your obedient servant Z SNOW hon WILLARD RICHARDS G S L city utah two justices of the supreme court of the united states within and for the territory of utah and the secretary of the territory having left for ae the states it becomes become me to examine carefully the acts and doings in s of the governor in relation to the getti getting u up of tl the ie real pr supposed legislative assembly agich which passed the act approved oct 4 1851 requiring me to hold a court on the first monday of oct 1851 before I 1 attempt to discharge the duties required by that act courts ex officio take notice of all public laws and public documents issued by the chief mag magistrates gi strates pursuant to law jt it is therefore my my duty V to te take notice of so many of the acts and doings of the governor as relate to getting up and calling to together mether the legislative assembly if these proceedings are arc authorized authorize dby by law then they are not void but legal if they are not authorized by law then they are not legal le galbut but void and the acts passed by the legislative assembly are also void if these proceedings are erroneous merely then the acts passed by that body axe are legal and the errors if any must be corrected by tw that branch of the government whose right it is to corrot them if they are not erroneous then my duty is ci clear to come to a correct conclusion on this subject it will be convenient if not necessary to refer to some parts of the history of the territory on the of july 1847 when this entire basin was mexican domain subject to the military rule of the united states which had hady by conquest been established a few american citizens came here and established tAli shed a settlement how far this military rule effected this settlement I 1 have not seen fit to inquire but it is presumed it did not seriously as the american army was stationed some several hundred miles distant this settlement continued to prosper until february ad 1848 when this military rule such as it was w was as terminated by the treaty of guadalope hidalgo oi in which the entire basin was ceded to the united states it is a rule of international law that when one government cedes territory to another the laws in force in the ceded country continue to be in force until changed by the new government by this rule if there were any laws of the mexican states in force here on the ad of feb 1848 they would continue in force until changed were there any laws of the mexican states in force here this q question ies ti on is is more easi easily 1 y as asked k e d than answered I 1 am ignorant gnor lorant ant of any when we consider that th this is vast country lying alyin aej between een the missouri river and the east eastern enri boundary boudry 0 of california and oregon extending north and south indefinitely has until quite recently been thought to be a vast desert unfit to sustain civilized man and when we consider that this settlement is is dow near or quite eight hundred miles from any civilized settle settlement amzi and that this whole region bufil quite recently has been inhabited by savages with here and there a trader and trapper it may not be far from the truth to conclude that there was no law of a mexican state in force here at the signing of the treaty alty of guadalope hidalgo by this treaty the mexican government 7 yielded fielded to the united unite d states whatever supervisor supervisory rv right it had over the indians and country and the united states obtained the right of soil subject to the indian title also the right to exercise its supervisory control over the india indians and other inhabitants and the right to make all needful rules and regulations respecting this part of its domain but by it the constitution and laws of the united states were not extended over this Terri territory toty the right lit to extend or make a law is one thing and t the he e extending or making the law is another the conclusion to which I 1 have arrived is that during r in the period between feb ad 1848 and perhaps b before 1 I 0 re that time and sept 9 1850 there was no chiv civil law in force here except such as had been enacted by the inhabitants of this mis valley and such limited supervisory rules of congress as ii if had made in regard to the c census mius and protecting its officers every act of man is lawful which is not against public policy nor against any existing law nor against individual rights all just civil powers emanate fron the people every aggregate body of men dwelli dwelling PF where there is no civil civilian civi liaw law in force may make such such laws as in their opinion will secure to them their lives liberty and happiness having a right to form a civil IV government subject to the right of congress to make all needful rules and regulations respecting this part of its public domain and to its national control an and a being desirous of establishing a law suited to their own wants the people of this valley in 1849 formed a constitution as the basis of their civil institutions providing for an executive a legislative and ju judiciary i ciary this being done they sent a de delegate legale to congress 0 ess asking admission as a state into the union pu pursuant u to this constitution the I 1 legislature e 1 i slature convened and passed sundry laws among w which gh ich was one rel relating 9 to the judiciary ind and another regulating elections bo both of these acts were in force here on the ath da day 0 of S september ep 1850 the day the act of congress to took 0 e effect ff act establishing a territorial government for utah bythe by the section of the act of congress the constitution and laws of the U states were extended over this basin which superceded superseded super ceded the provisional laws so far as their provisions were inconsistent with the constitution ution and laws of the united states the pr provisional avs i lonal constitution and laws gave place to this act and the constitution and laws of the united states this act also provided for an executive legislative andja and judiciary di in the alth section it is provided that the president shall appoint ac certain of its officers among which are the governor the justices the secretary marshall and district attorney it also named the officers before whom the governor and other officers appointed by the president mi might take the oath of office among whom we e f ind find the district judge or some justice of the peace in ohp limits of said territory duly authorized to administer oaths and affirmations by the laws then september 9 in force therein this to a limited extent recognized the legal force of the provisional laws to organize under this act two things were necessary first the ap appointment ointment of the officers by the president second ire the oath of office to be taken by the appointees september etem er 28 1850 the officers were appointed by the president any Anyo one neof of whom in might lit the next day had he b been e en in a condition so to do aln have e taken the oath of office and entered on his du duties ies feb ad 1851 the governor took his oath of office at a any time u after this whether the other officers were in the line irie of duty or not he could do any act required ir i of him which did not require the operation cooperation co of the other officers the governor for many good reasons w was as charged with the duty of getting up and call calling together the legislative assembly the ath and sections show what his duties were in this matter they were first to take the census or enumeration me ratio ration of the inhabitants of the Territory previous to the first election second to make an apportionment of the council and representatives among the several A counties or districts lag as nearly equal as practicable giving to each section representation in the ratio of its population as nearly equal as may be third to declare the number of councillors and representatives each district or county was entitled to send fourth to fix the time of election fifth to fix the places of election sixth to declare the manner of conducting the election seventh to determine who had been elected eighth to fix the time of the first meeting mg of the legisla legislative tive assembly ninth to fix the place of its first in meeting under certain contingencies which have not in this case happened he had other duties to per Toto but as they have not occurred these duties are not mentioned I 1 will here remark t that hat though in all tle cases he was to perform the du duties ties yet et in in each pie one he had a discretionary power given ven him im officer of the government 0 1 ern ment wheater whether he be a high V or a low one has a ii discretionary power given him in the discharge of any duty no other officer or branch of ao government vern ment has power to ao control him in the exercise of that discretion i inasmuch as exceptions have been beem t 11 to the proceedings of the governor relating to th 11 census I 1 will here refer to the mariner manner in which th that al duty was dischar discharged ed I 1 bya by the 1st ast section of the act of Con Congre gresi sf J approved i I 1 may a 2 ad 11 1850 relating to taking taking the ceus of the lj united states it is provided that it if there e any district or territory of the united states in kiich ich there is no marshal of the united states the pre pr ident shall appoint some suitable person to discharge c the e duties assigned by this act to the marshals fhe e duties of the me marshals were in substance to take he e census by the eth section of the same act the secretary cretaro cre tary of the interior was charged with the duty of f eing that ar t the he several marshals dis discharged barged their d u t ie e E in fact he was the officer e er under th the e laeb P ident to see the act in all its p I defly execute executed ed tal am I 1 of course cours e to appoint I 1 1 person to t take e pie e census here as this wa section ec tion of country of 11 he e united states in wh i icye was no marshal this is act required erfa th the I 1 V arshalis to have their cities ties fully p performed rin a on dB deethe ethe 1st ast day of no now then next ne ensuing it we ver soon ascertain at the marshals could ot eyford their duties un er this law within the time therein ferem limited con congress r s therefore ere f ore by an ac act t approved august augu st ten e days s before there was any territory of utah e extended ee the time for taking the census therein it ft is to be remembered that these three acts were wen passed at one session of congress and therefore they are to be construed so as to carry into effect their objects without requiring a work of supererogation the object of the first two acts was to to take ahe census throughout the united states the object pf af taking the census as provided in the th utah birt bill was wai to inform the gov emor of the number of inhabitants 2 indians excepted in the several counties and tracts ts so as to enable him to fix the ratio of representation among the several counties ac civi giving na to ach jacb as nearly as may be equal representation in te legislative assembly seffi bly at its first session any official information of the umber number of inhabitants in each county or district answered the spirit of the act if he after taking the oath of office and before making the apkor apportionment 6 0 wn ent took the census in or caused it to be done he fulfilled the letter of the law he who does a thing causes it to be done and hewko he who causes a thing to be done may be said to do tile the thing now the dent by the secretary of the interior pursuant to the p provisions on s of the law approved may mai 1850 alro appointed point governor young a special agent to take the census of utah the duties of which he performed after he had taken the oath of office as governor and previous to making the apportionment oe 0 the council and representatives among the several counties aunes and districts on march 28 1851 governor young as such authorized zed thomas bullock to take the census pursuant to the bill creating the territory of utah which duties were also performed before the appointment was made as appears by the papers on file in the Gov governors ernoes 0 office ali ce so governor young did take the census ceniu both as Gover governor norand and asa as a special agent appointed pursuant to the law of Coi congress Wess I 1 conclude therefore that in this respect he be f fulfilled filled af both the spirit and letter of the act had he not taken the census as prescribed in the act nor in any other manner I 1 should not be prepared to hold hold the election void tor for that defect though he would not have discharged his duties in this particular la he was to tomake make an apportionment of the council and representatives among the several counties and districts district also to fix the time and places of election declare the number each county and district would be entitled to send and direct the manner of conducting the election A little reflection will soon convince us that in all these duties there was a large discretionary power given him As to the time rime of election he might name what day he pleased but he could only fix on one e day a for the election and that was to be the same throughout t ro the territory so the time was sub submitted mittO to his is discretion I 1 the D umber number of places for the election ab and d where these places should be was also submitted to his discretion I 1 c ti on the number of council and representatives for each county and district was also submitted to his discretion i the number of council and representative districts was likewise submitted to his discretion provided I 1 ded lie he did not make more than thirteen tor for brov council 0 cil noi no III twenty six for representatives t I 1 the same holds true in regard to the manner of conducting the election he might legally set et foth forth entire new rules for that purpose or he in ought i ht avail avail himself of such rules as were familiar to the inhabitants again he had the choice of means tle se might select any rule to accomplish these things 11 known owl to civilized life keep keeping lug i within their custom san sand usages I 1 will now see what means he did use and how he discharged these duties july 1 1851 he issued a proclamation |