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Show JUSTICE EjIERSON'B DECISION. I Is the decision uf Jndgo Emerson recognizing McAllister as tho law-1 fully elected Territorial Marshal ni accordance with law? Thai's the, question. I If the nets of Cungi'ess and nt Uiu TerritoriidLcgiblature are togovcrutho Judge, then no honest and accurate lawyer can gainsay his decision. But if Judge Emeraun wiw "out hero by tho Administration to decido according ac-cording to its wishes, irrespective of law, then no one can tell what tho decision should Int. Neither President Presi-dent Grant, nor the Senate, nor tho House, has ever yet dictated to the Sudgcs of Utah what their rulings on cases in their Courts must be although al-though tho " Ring" Atsail Judge Emerson Em-erson because ho was sent here by tho Administration, and this decision, Judge Emerson's decision is in rigid compliance with the laws of Congress and the Territorial Legislature, nnd tho repeated decisionsof the Supreme Court of tho United States, in cases precisely liko this; nay, this very identical case itself. Let us see. The solo question presented to tho Supremo Court of tho United States in the Englcbrccht case, was whether this same McAllister was qualified as Territorial Marshal, under an election precisely similar to this, to draw juries; and whether a jury so drawn was legal? 10 Wallace, U. Supremo Court, page tho court say: TIo (McAllister) acted s Tvrritorinl MiUrhul under c ilur uf aulliority, hikI if lie was not legally Mich, hi.- u'U einnot bo questioned indirectly. Subsequently to this, in the case of 1 Snow f'. Hempstead, that same Supremo Court, in December last, decided that Snow, the Attorney General, Gen-eral, elected at the same time, under the same statute, by the same Legisla- ture, was duly elected.and this decision ' covers the veiy ease beforo Emerson nay, nc merely ueraieu mc language 01 the Supreme Court of the UnitedSiate;, and it he had decided otherwise he -would have been subject to removal and ought to have been removed. No houcst Judge could have done otherwise other-wise unless lie trampled under foot tho clear, positive opinion of the Supreme Court of the United States. Tho decisions de-cisions also prove the falsity of tho assertion so often repeated by the "ring" officials, that juries cannot bej legally drawn by McAllister, for the j U. S. Supreme Court expressly dc-: cided what every lawyer well knew, j that the question of the legality of the 1 election of an officer can never be J enquired into in a collateral way. But we now add tho opinion of the J U. S. Attorney General, given in 1870, in reply tu a query of Gov. Shatter as to tho legality of the election of Probate Pro-bate Judges under that same statute. See what the law officer of the Administration Ad-ministration says: Dr.r.wiYMEST m- Jt snei:, Augu.l JO, IHTO. )" Sir.: t h:ivi rci'ived yoan of the I'Kh iniUint, nj.Jiif ling my opinion i-oil the i;c.-tiun- j.re.ni-nled tu 11, iSutu IVpnrt-mcnt IVpnrt-mcnt iy tin: (iovrrnor of L'Lih in hiicom-niuriiciilion hiicom-niuriiciilion of July If 70. The question is this: Whethir, imdfir the. Act organizing tlic Territory of L'tuli, ttio rilit to iirecib',' lliu modu oft lectin or nppuinliiKj judges of probate is vested in ih.j L.' slmivu Aenibly of Unit tVrri-Uirj tVrri-Uirj '! 'S !. Act provide.- Unit "ftll town- ! ,-bip, 'li-lrict, imd county ullieors, not herein here-in othrwis'; provided tui",h:iU bo appointed appoint-ed ordered, a. tlic ensi' may be, in fuuIi manner as fiinlt bo provided ry tho Gov-rruor Gov-rruor and J-t islulivu Assembly of tho Territory of I. tih." 1 understand a judge of probitc in L'tah to In a county nlliec-r, nnd llierefurt! he fulU within the terms of this pro vi-ion, (there heiDg no other provision pro-vision tuuehirnj hiieh oll'icors in the Oriin-icActj, Oriin-icActj, imd the manner of njipointnu-nt or election is in the hnndi of tin: Governor and Lr-yi-liiLivo A;,acnibly. And I see no inconsi'-lonry with the organic law in tho ,-Uitn'ory provi-ion that the probnte judges shrdl lie elte'.ed by the joint vole of thy L'-Kii:itivo A.-.embly. Whether . choice by th:iL mode i prouerly bh np-jioinlToent np-jioinlToent or an election is a more vorhul question, and whetlior it bu dbiionviiftt'-d bj otm or tli other of Uicn terms, the . L- gisbitnre liit.iowcr to prescribe it. Very re-pcctfutly, Your obedient servant, A. T. Akkhman. ro.v.J.C. U Davis, Vol- 1", Opinions of Attorneys General, ouye '111. Not only was Judge Emerson compelled com-pelled to decido that McAllister was legally elected Territorial Marshal, but ho ought further to havo decided that any appointment or commission com-mission from Governor Woods to nny other person as Territorial Marshal was utterly null and void. Territorial Governors, until the Act of ConnrciS of 3872, could not appoint any officer, even in canes of vacancies vacan-cies created by death, resignation, or by any other cause. Governors of Territories are the mcro creatures of the Organic and Territorial Acts, and can do nothing unless specially authorized autho-rized thereto by statutes of Congress or the Territories. The Act of Juno 8th, 1872, page -i-l'J of session laws of Congress, provides: Th it in nny of tin 'ferritorii-n where a vuenney slndl linppen from resignation or . deritli tlitriii'j the reran of Urn Legislative Legisla-tive C'ounei-I, in nny ollicn under llm Organic Or-ganic Act, ivhieh in to bo Idled by appointment appoint-ment of the Governor, by mid with the ad vim arid consent of Urn Council, then (he Governor shull fill up aieli vacancy I by gnitilirifr 11 cornniMsiuii, which Khali expire nt tho end of the next J,t:gis'ritive Council. Now, in order to justify Governor H'oods in making an appointment of Territorial Marshal, there must havo bfien a vacancy in that office, created by ile.ilh or rciiynatitni ihu iiuj Ik-: m-m uf' the L-yht tticc Cmifil. Any other of His appointments appoint-ments are utterly null ami void and without authority of 1 tw, Was there a vacancy in the office of Territorial Marshal caused by death or resignation res-ignation during the recess of tho Lcg-idnlivo Lcg-idnlivo Council 'when Governor Woods in violation of law, undertook lo commission a man in place of tlic legally elected McAllister? Dare Governor Wood say on his oath that there was any such vacancy when ho issued that cmn mission? II nut thou he ought to bo removed instantly fur violation of tho Act of 1872, The truth is that every lawyor, cvory Judge, and every intelligent man in Utah, knows thnt Justico Emerson's tlccisiuu i-i nothing but tho roit-cnitiou roit-cnitiou of tho decisions of the Supremo Court of tho United State, but since it ivlo show that for tho last three years juries might havo been legally drawn hero as in Idaho, Montana and Colorado, the "ring" and its organ sock to weaken and trample it under their feet. |