Show T THE HE mae dal ial OPINION OF ASSOCIATE JUSTICE P IL ea EMERSON erson URSON delivered in the first J judicial dagi district rica court at pr provo 0 o april oth 1874 two persons present themselves 4 to court each asking P to be recognized as the territorial marshal one presents a commission from froin the governor of this territory p pointing him hlin to that office to fill a claimed vacancy and beiring bearing date march 3rd ard 1874 some da days y s after the final adjournment of the territorial legislature the other presents a certificate of election duly certifying that on wll the 20 th day of february A 1 D 1874 by a joint vote of the legislative assembly ho he was elected to the office of territorial marshal marshai I 1 chis action of the Legislature Legisla tur e i wa sunder the provisions of a te territorial rit ornal onial act approved february ath 1832 1953 creating the office and providing the manner in which it should be filled both parties claim to have taken the oath of office and filed the necessary bonds it is not only important p octant that the court shou should id arrive a at ta a correct conclusion if that is possible in this matter but that whatever the conclusion may be it if should do so at onee once once onee that the business of the court may proceed without unnecessary delay and that there may be at heastan officer do de facto recognized by the court to serve process aad execute its orders A au n officer derives denive his right to an 0 meo mee from his election or appointment and his is simply evidence of his title when hohas lichas ho ilo has been men fairly and legally elected his right at oneo once becomes beear es absolute the right of tho the person claiming under the appointment of governor alone depends upon whether there was a vacancy or not and it if a vacancy such a one ag as could be filled by executive appointment the legislature Legisla tureby by a joint vote having elected another person than the one appointed by the governor to the omeo omee of territorial marshal and that penson person having compiled complied with the requirements of the act as its to acceptance and qualification there can be no ilo vacancy inthe in the office if that portion of tho the act authorizing such a proceed proceeding irig on 4 the part ot of the legislative assembly I 1 is valid it must be clairedon clai elal medon the bart part of the person basing ills his right T to the office upon ills his appointment and commission by the governor that the act referred to is valid except so far as it points rut but cut dut the manner of filing filling tho office and as to that that it is unconstitutional or opposed to the provisions pio visions of FCc sec fec section section tion even of the thle organic act and not nov within v th the power given to the tho leg illative assembly e by section six of that A act t mid and therefore voad raf id that the 11 act t provides in ill its very first section and starts out with chiw thih declaration that a marshat marshal shall shail be elected by a joint vote or of both houses of thele the tho legislative assembly y whose term teim of boffl office ice etc and then gives him certain power powers sand and defines his duties f tiie the manner of selecting the in cumbe nf is elins inseparably con with the creation of the office and if that is void tile tho whole act is void and there is no s such ile ilc 11 office or officer as territorial marshal marshai there is not a provision or intimation anywhere e in the act itself that thit if the legislative assembly bayha have enot not the power to select the iti incumbent in the tile manner provided it should exist anywhere ele eie 7 the rhe legislative in intent tent in the rn manner mauner uner of filling fil ung the office is plain yand and cannot be severed from that in the creation or of the office from the wording of the act I 1 must conclude that they would not have passed it with a provision pha aha he office thus created should be filled in any aily other oiher other manner maulter than that taht which is prescribed in healt I 1 itself ts el f rt it is jib true thac that ibah a statute may sometimes som eUmes b held r void in part and valid as to fo t R the tho rema remainder inde r but this ban can ean never be ba done dane wi without t the most manifest usurpation of legislative authority except where the court pu anan au inspection of the whole statute ean carl satisfy itself that it I 1 is enforcing a degl legislative dative intention in so it hannever can never go so hold without ut most manifest impropriety when ills luls jolain abat to dp do so would defeat he legislative intent r no court is at cibort liberty to to split legislation into inta fragments and arbi atso if wha the law ought to to one fragment to the re rejection of the rest the farthest a court carr cari go is ig this if when a vold void h statute is stricken out olit that which remains is complete in itself and capable of being executed in accordance cor dance with the legislative in I 1 tc tent tent nt wholly independent of that which f was rejected then it may be sustained d applying this rule to the present ples pies sent cent case 3 if tho tile of the act providing g foi fol tho the thoman manner of filling this olace is boldi void vold then the whole bolea act et la is vold void for tho the balance cannot be executed accords c to the legislative Is this portion of tee act vold hotd The tha til lame same ame rule rulo rul nul bLuA must be applied in construing aco act of nie ithe territorial legislature as in id construing acts of 0 any other lawmaking law ma making lug luw body bod jt it a is ase a settled cl doctrine trine that no of thil le legislature can ean bo p declared void unless it with ith sone ex press provis provision loll ot the constitution aud and cind the court roust beabe ea 1 to point I 1 out the file provi siou slop slon sion an act at 0 of the tile legh Legg legislature lature canerot e d eelar eclar cd v old oid unless it is plainly un unconstitutional ri the rower power or pt tho the gi L erlb ekls burg is 0 omnipotent t within cons constitutional titu gon von i AIll limits mW and its its acts dro are to bp be regarded carded as hahka eie elc cle d U 1 t onal I 1 the queston isono of ui I 1 egr etiva power aid awil ald pdt dot not of ho the wis wisdom doni doul or even 0 of lle tle justice of tle tio tie manner la in whick that power if it exist has been beed bee D eje excised while th ohp court wil vil declaim tha t le legislative gisla tive tivo power can only apex bo ex erased cruised within the limits prescribed by the fundamental liw it is s equally equall V bound to leep keep within jle jie alle alie sphere allowed to it ly tha same to td do other 1 would world bo be to arito arrogate me til tho the rowe powe 6 af r makiji making the tho fundamental a 15 fayr AV ahat the coll coli court it may a iljin ij ought tu to b be irstead instead of assion silon 9 aliat I 1 is with thrive feid feed fundamental ell 4 udo arinea dogu to guide gulde ido ll 11 us c can cau jve I 1 VP c say y that this statute Uati ite is s in n conict collar mith with M th the the fhe organic act I 1 but whatever may bethe bothe be the opinion opinio n I 1 bouty bouny may ina lna iliana havo upon the subject tam lam bound d decision ot of thenna the rational supreme ourt burt ilu liu ery cryl 1 act has been bedri before didd has been boen declared valid I 1 lerer rener to lol the case of snow V united eiel at recent recen spase case reported X was 8 elee clee elected ted to the office af attorney general by a joint vote of the territorial assembly under unde r section 4 of this act and the deci slon sion of the united states supreme court established his light to the office i in rendering that decision the tile court says that the power given griven to the Legis legislature lattire is extremely broad jt it extends to all rightful subjects of legislation consistent with the constitution and the tho organic act belr beir L elf eif clr and there beems seems to be netting 21 faini taini in eneith aiels cleas r ot 0 f chese j these ac I 1 f in n I 1 tt nis which directs wab wah tap tao territorial vi law jf if there ts is rny tny inconsistency at id titis litis in that part 0 of che the organic chich ehica Provi provider dejur defur jop fur the appointment b that thap president of an attorney fur tius liw territory so with the tho portion i of the tile act now under consideration if there is ia any inconsistency at all ali ailt it itt js in that part of the organic Org inie inic act which provides for the appointment by th the e P president sidn sidd t of a MaKs marshal marshai lial ilal for the tha terri territory 0 ir Y it is not intimated that there is Is any inconsistency in the jho manner in which the tho incumbent is selected ted by the territorial jaw the supreme court say further but is that necessarily ah an inconsistency sis sib tency the proper business of that attorney may bo be regarded as relating to cases in which the government ern ment of the united states is e concerned 0 1 I 1 pl d tho the a 4 caso cas of t the h 0 va marshal and the tile separation of the bus business iness of the couns courts as to government and territorial case cases seem 0 0 o give sone sonie counte countenance nance nanco to tb this is idea at ag alt eue euc events 2 Ls it aas aad sufficient support ort oft to P tao tac ahat ahai there is no aar wry conflict between the organic und territorial I 1 fins the argania organic act ji susceptible of a c construction that will aio aeo dvaid id and that construction is is supported b by lo 10 long iong ilg rig usage in hi this tin s and other terri territories torie p 11 under hese thase circumstances it j ia abe the duty af the court to adopt at ami to declare eci are ta the c territorial valid times |