| Show THE main XAIN QUESTION THE EDMUNDS BILL AND THE noab AMENDMENT AA adut has the governor of utah terri tory the right to fill the off omm icess offices which but for the edmunds bill would la in august have been fulea filled by bv election oi or the people under the utah statutes such grave and far reaching consequences may attend the answer to be given to this questions question that it beems seems to us that it behooves all good citizens of utah in the consideration thereof to lay aside all temporary or of personal considerations as contra distinguished from the ultimate and general good all passion and prejudice all differences of political opinion which do not necessarily enter into the question whichever way the question may be answered ar our conclusion should rest upon a just and fair far cons trec tion of the law jaw and should have some better foundation than our wishes on the one side or the other there need be no serious difference as to rules of construction these have been clearly and fairly stated in the slaughter hoube house cases in wallace 7 72 where mr jus JUB tico tice miller in speaking of the construction st of the amendment to the constitution uses the A following language bub but what we do bay says and what wo we wish to be understood IB ts that in any fair and just construction of any section or phrase of these those amendments it Is necessary to look to the purpose which wo we have said was the per spirit of them ailt allt all ali the too evil which they were designed to remedy and the process ot of continued additions to gha tha constitution until that purpose was supposed to bo accomplished as far as constitutional law oan can accomplish it aw bassing passing over that portion of the edmunds bill which defines certain crimes and provides for the punishment thereof and for athing of certain children what was the 91 purpose and pervading spirit of the residue of the law first prohibiting hi polygamists iata from teeing eligible for election or appointment to or holding any office or place of public trust honor or emolument in or under any buchter buch such Territory rl tory tony or place or under the united states and to prohibit any person holding office under or by reason of the votes of polygamists second to oust all the registration and election officers in this territory ot of utah and supply their place with an impartial commission who should thereafter and until other provision should be made by a legislative assembly to be elected in a certain manner manners perform each and every duty relating to the registration of voters the conduct of elections the receiving or rejection of votes the canvassing and returning of the same and the issuing of certificates or other evidence of elec elee tion under existing laws of the united states and said terri territory atory under this second heading beading it 16 may be properly said that congress took knowledge that under the eald laws of utah the election to certain offices would take place in August 1882 and intended that the action of sala baia said sald commissioners should apply to baid eaid elections in august and that the officers so ito be elected in augest were to supersede the then incumbents and to hold such offices under certificates or other evidence of election from such commissioners and not otherwise what nasr the evil which the laws lawain in regard to holding office was 91 designed to remedy to tarn tal all polygamists out of office and to debar them from voting or holding office in said territory 2nd and to prevent any person from irom being elected to or holdin holding goffice office through the vote of polygamists 3rd ard to provide as speedily as might be for a fair election the president delayed the appointment of the commissioners until it was wag too late for them to provide for the registration of 0 voters and in consequence thereof there was vas no election for the offices which should have been filled in august under these circumstances the tho hoan hoar amendment to the edmunds law was passed by Con congress gress gresz what prompted congress to pass pus this thia amendment what was the evil which this amendment was destined to remedy what was this thia process of a addition to the edmunds law designed to accomplish the tho proceedings in congress show shows that ghis thia additional legislation was prompted by and bab bas based ed upon the ietter letter read before the senate from the judges of ol the supreme court of the territory of utah in this thia letter of the judges the tho pyu tobe toabe remedied and the tho remedy for the evil are pointed out after reciting the reasons for the failure of the election in august the judges then speak of some of the evils to be remedied and bay eay that at such election there would have been chosen successors to all the present county officials and aleo alao to the territorial auditor and treasurer as directed by the territorial statute that those successors can not now be chosen for the reasons given that this failure to elect la liable to causo causa general disturbance and trouble especially in view of the well known fact that many of th the e present incumbents are understood to be bits Lits ts and so disqualified under the law referred to to hold office then the judges proposed a reme dy for these evils the italics are our own cewe we therefore esk asb ahat ahat congress shall ako take such measures as will provide for legal successors to ALL aiji the present incumbents in office whose successors would have been chosen at the august election elec lions and thereby secure the continuance of bood good order and the regular and undisputed Is buted support of organized government ern ment which otherwise other wite would be seriously jeopardized 11 we will not incorporate borate in this article the discussion in tho the senate which occurred when the amend ment was proposed but a reference to the same will show that senators hoar bayard lapham and brown all understood and were veto of the opinion fon foD that hai hat the amendment authorized zed the governor to appoint all officers who should have been voted for jn in august but aa as to whom an election by the tha people failed by reason of there having been no law jaw ful registration there would therefore seem to be no question as to what were the tho evila evils congress was seeking to remedy or as to what they intended and tried to do to remedy these evils did congress in the hoar hear amendment provide such a remedy as they clearly intended to provide if the thel amendment upon its face leaves a doubt aa as to its meaning or Is susceptible of two constructions then the rules of construction heretofore given should be applied and tested by those rules we find that the question propounded in the beginning of this article should bo be answered in the affirmative but we do not concede that any j different construction from the one we have indicated can f famy hirly be put upon the tho amendment the amendment is a as follows tho the governor catho territory cry of utah 13 hereby bomby authorized to appoint officers in jn sold cold territory to nil fill vacancies which may be caused by a failure to elect on iho tho elret fl t monday in august 1882 la in con consequence 16 bence of iho the PrOVI provisions SIMS ot 01 an ru act entitled an tact act to amend section of the statutes cf of the united states to in reference refe nete renco recco to blamy bigamy and for other purposes approved march sad W 1863 to bold their th air offices until th ir successors ama ara elected and qua qualified liBed under the provisions of said act provided that the term ot of office of any of said mid officers shall not exceed eight elgh t month montha we understand that great stress is laid upon the word vacancies in said amendment by those who diffen differ with us as to our construction of thib thia statute the very wording of the statute contemplates and poses a vital fact k that a failure to elect in august in in consequence of the provisions of the edmund edmunds law caused cawed a vacancy in certain offic offices esa and ag as far as the efrece effect of the jaw is concerned it matters not whether in the amendment congress ia la construing the legitimate operation of the edmunds jaw and determining that under the edmunds law and the failure of the election a vacancy occurred ors or whether it is by the very terms of tho the amendment de claring these vacancies the result reached is the bame same who tho vacancies spoken of in the amendment Is not intended to apply to t or operate upon what want might bilg t or might nod not be a vacancy under the statutory taws jaws of utah the reference in the amendment is not to supposed holdings and rights of officers or cameles ya in office under the tee statutes of utah but to vaca vaen vacancies neles occurring by reason of certain congressional gress greas lonal ional aeta acta if tho the amendment had read as follows As under an act to emend section of tha tho revised statutes eto etc etc no elect election ion lon can be held to fill the offices which should have bare been filled on tho iho first monday la in august AUff cst 1882 under ewt that law and as by reason ot of liuch such failure vacancies must wust occur in tho the offices which should have hilve boen been but were not filled under thag that law now therefore th the Gover governor of the territory of utah la hereby heneby authorized etc eto etc the wording warding would have hare been somewhat different but the tho mean loz los tho the same if tho the failure to hold an election in august under the edmunds law ortho or ithe hoar amendments created vacancies in office which should have been filled in august then the n the apon with which artl arti opens must of course be answered gens in the affirmative on the other hand if those who take an opposite view are arwright right and no such much vacancies did or could occur if notwithstanding the congressional enact ments the territorial statutes in regard to officers holding over until their successors are duly elected and qualified are still in force we have the strange and humiliating spectacle presented of congress a body embracing among its members bome some of the most distinguished lawyers in the united states in its closing hours pushing aside business of great national importance to enact a statute which was then and must forever remain utterly inoperative and a silly farce grave senators of all parties and sll shades ot of opinion unanimously consenting to lay aside momentous questions to engage in the childs play of authorising authorizing autho rising the governor of utah to do certain acts on the hap play of authorising authorizing autho rising of utah to do certain acts on the hap pening of an impossible impost ibie ible event which acts on the hypothesis that the boid bold until their are elected and qualified were prohibited by law however it may be in regard to the laws of the beveral several states of the union as far as the Terri territories are concern concerned edy edt congress is presumed to have knowledge of all their laws lawe we may assume then that con gross had full fuli knowledge of the of utah authorizing certain officers to hold the offices until their successors were duly elected and qualified yet with their knowledge they authorize the governor to fili fill certain vacancies did congress design to produce confusion worse confounded to have two men mea one holding over the other holding by appointment claiming the right to exer exercising cisin elsin g the duties of every such euch office or did congress design to repeal end put aside all acts and parts of acts inconsistent with or nept repugnant ignant to the laws they were then cn acting enacting if the two laws the one of the tha territory the other 0 th er of Cong are inconsistent or in conflict the law of congress must stand first because ca ua 2 it is the latest expression of the tho legislative will and second because it is the supreme legislative will before which no opposing territorial rit orial enactment can stand we may also further say that it is a well established principle of construction in courts of Ju justice atice that if the latest expression of the legislative will is fairly open to two constructions one ona of ot which will make malie the statute operative and ana make malie the statute operative and ana effectual and jhb other inoperative and worthies worthless that construction constructs 1031 will be adopted which will give it validity and effect effle ct of course it is hardly necessary to bay say that if the of whom we hate been speaking hold over oven under the territorial statute in de denance flance defiance of the congressional enactments the governor has no power of appointment and the hoar amendment is worlee woree than nonsense in pursuing our cur investigation in this ibis abis ahls matter wo we have not overlooked a line of decisions embracing such cases as rho tho people ppl appl r vs whitman 10 ca cal 1 SS 38 la in which caso Is ig a dissented dissent lD OP opinion by dy mr justice field the iho people ve v tilton sa cal inah ch there are also dissent rig tig opinions opi state vs lusk IS 18 ma mo in which Is a dis by scott and commonwealth mon wealth va Y hanley banley 9 pera perm state we might well advert to the fact that these were cases arising under the tile limitations of state bbate Cons titu eions and in the enforcement of state laws framed expressly to enlarge the elective power of the pec r ce p pie 10 0 and to curb and curtail the a appointing p power and might mig ht well weil W eli ell argue theory and practice of our gru Gre general government towards argue theory and practice of our gru Gre general government towards the territories was wai the reverse reversa of this our general government claiming and exercising the power to fili fill by appointment the highest and meat important ollices in evory evo ovo territory 1131 but bat wo we waive this for the present and hold bold that the tle cases cited above are inapplicable ins ina applicable to the question wo are now discussing because congress has full fall power to hot set aside the utah statutes sta which provided pr ovidea that certain officers should hold their offices until their successors lors mors elected and andr qualified e lifler and in the passage of the edmunds E law jaw I 1 aw and the amendment men dment ament thereto it iti hab has ba a exercised this power set seh aside the territorial rit orial statutes in that regard and provided for vacancies in certain offices by reason of matters beyond and independent of the territorial 11 statute As citizens citi elti zens of this territory Torri tory deeply interested in its prosperity and tile the happiness of its people wo we present these our alws 0 to o our fellow fe low citizens trusting that in some degree at least we may be able to aid in the proper and permanent lent nent settlement of some of the important quest questions ious which now vez ves the public mind thebe these considerations induce us to give an affirmative answer to the question with which this article opens aud to further say that in our opinion as eoon soon as governor murray shail under baid eald congressional enactments have made mado his appointments to said offices and said eaid appointees shall have quail qualified nned fled as provided by laithe law the further hold ing over by the former incumbents in said office will be wron wrongful grui grul and biegal illegal their thair acts void and they acting became in violation of law will bemine become came come subject to criminal and aud punishment MARSHALL ROYLE BOYLE |
