| Show A convincing ARGUMENT stuls THE MAIN QUESTION QUESTON BY ME MARSHALL BOYLE REVIEWED from A LEGAL legai standpoint I 1 have read with pleasure the ingenious article of those able and experienced lawyers and felt at the beginning that if it there thera were soled grounds on which to place the p pow w er of the governor to appoint r successors to the territorial and ud county and district officers for such a might have had successors sors elected in august augush that they would palpably and success successfully fully fally show it but their article ha hay confirmed me that there are kossuch no sueh such grounds I 1 natee with them in the importance of the question and that it Is one rising transcendently above partisan poll pil ties religious creeds or local divisions of the people of the territory Terr tern itry ry and one that should be decided en on enduring ensuring principles tho the rule of construction derived by them from the slaughter hoube house cabes cases in wallace reports of the supreme court of the united states seems to be farfetched far fetched and inapplicable cable cabie as wili will be seen from a statement of the case the louisiana louisina na legislature granted a charter by which the incorporation had the exclusive elusive right for twenty yeara years to have slaughter housey houses landings for cattle and yards for lu closing inclosing cattle intended for sale or slaughter ter within the parishes of orleans Or Jeans jerrerson jefne Jeffis reon and st barnnrd barnard Barri ard and the controlling con cou trolling question was oid old old did this net act of the louisiann louisiana legislature conflict with tho tha 13 11 14 and 15 amendments to the united states constitution for it was conceded that it cona conf conflicted almed limed with no pro previous provision of th the a constitution the amendment simply abolishes slavery the amendment declared all per persons born or of naturalized in th tho the united states to be citizen citizens and the second clause provided that no state shall make or enforce any law which shall abridge the privilege nr or immunities muni ties 3 0 of citizens of the united states abad abd it was wag upon thi clause that the assailants of the tha louisiana statute denied its validity As it hal hai previously been de elded by this court that such act acts fell within the public powers of the states and not in conflict with the united states constitution tha the underlying question wag was whether the tho police powers of the states had bad been abridged by this amend mf men wab waa intend ed etl to enfranchise those who had bad been freed by the previous amendment hence on the page preceding the language quoted by M ar R mr justice miller milter said on the most moat casual examination of the ian lan language guage of or these there amendments no one can fail to be ber imbres impressed sed bed with the one pervading purpose found in them nil all lying as the foundation of each and without which none of them would have been even bugge suggett t ed we mean the freedom of the slave race etc now on the moat most casual examination of 0 the edmunds edmunda bil bli it will be te soen seen that the first eight erections apply to all the territories and nd other places over whlor the united states stales has exclusive j jurisdiction it 19 lathe the eighth L section which ui and bigamists biga mists frona from voting and holding office aldno and no more applies to otah utah utah than to tho the district of columbia oran or ady any other terr territory atory and this fact and idea mu must t be i kept ept in view if we would arrivo arrive at a clear lution solution eo of those thosa callona cc tlona llona applicable aiono alono to utah for it is evident that the edmunds edmunda bill did not intend to declare vacant all the hold by te in all the Terri Terr loriea orles ories of 0 the unite 1 states and other places over which it has bag exclusive but only to put them under future df dla a abilities and this feature 0 the edmunds statute seems to havo b been overlooked by the judges of the territorial supreme court by tuo the author of the hoar amendment and und by the congress of the united state states significant and almost conclusive as it is for neither the E edmunds 1 I nor thedoar the hoar boar amendment provides for filling any vacancies except in utah wade on retroactive laws on this subject sub get act of office shortening the term and regulating ting the compensation of statutory offices says nevertheless Nevert helesa the same rules rates of cons construe truc true ton will wll bo be applied to legislative acta acts fibla kind aa as to those to disturb veried vested rights thus thui where it was provided in an amendment to the tho charter ot of a municipal corporation that an officer of the tho city woo who accepted a seat in the general assembly ot of tho the state should ba deemed to have vacated hib his office in tto absence of express w ads rda rivin thera thena the tha statute tute a 8 retroactive operation it was construed as prospective and held not to apply to officers who had already become ra of the tha legislature se section 43 45 and so held by appellate court of new york 58 NY N the people vs vi green this universal rule recognized by this able law writer is exceedingly apropos to utah and its officers the edmunds bill declared the registration and election offices of utah vacant but did not declare any other office vacant and the hoar amendment did not even oven squint at declaring any office vacant but did provide for filling vacant offices in utah but nowhere else but M R bay say the supreme judges of bf the territory did ak akk a k congress cou Coo creba gresa to bake take bach each beai i arcs as will provide for legal igal sion slon to all the present incumbents of office choso whoso successors would have been chosen at the august election and thereby secure the continuance of good order and the regular and undisputed support of organized government and reasons because bemuse the I 1 judges adges so soaked asked that co con i t gross gran grau granted tea ted the request eat cat but on the contrary the congress fall faurl ld to authorize the governor do governor vernor to appoint successors for such officers had Con congress greB greh intended to declare such offices vacant and to authorize the governor vernor vernoi to nil fill them direct and emphatic language fang Jang bage would have been used as AV was a d done dons 0 D e in pwe the E edmunds d bill aa as to reg leg mud mid and election officers the amendment however how low ever aver caly oaly anthoy authorized the governor to nil nii such offices as became vacant by reason of the not holdin the august election eleo tion leaving the question tion an to what boffl ces ce if any did become vacant with the law and to be determined by its provi provisions sidne and no doubt the he governor can fi nill fill 11 all the offices which became vacant on the day the election should have been held but not such as did not then become vacant for in the lari language guage of the able su preme court of ohio it ia is a legal impossibility for a vacancy to occur whilst here hero is a legal incumbent in an office and in the guarded language of the hear amendment congress act ed most wisely aa as Is demonstrated by its own provisions the term to be filled by the governor can last but for eight months under any cir sum cum cum eum stances and ha he la ii only authorized to appoint successors for the offices becoming vacant in august and not their so should ho he fill such euch vacancies in august their terms donld expire aspire in apri april 1 1833 when llo zio election ot of their successors could occur until the following august and here would b a hiatus of several month months when no legal successors could be appointed by the governor and a state of anarchy would thus be produced to save eave all such trouble and difficulties c cul cui ties and that the continuance of good order and the regular and undisputed support of organized government maybe eo cured let aba law JAW as it is be adment administered iet jet the well adjudicated and galy F ally ialy recognized rules by the american people and their governments be applied to utah and let there be no attempt by naw daw and unrecognized rules of construe tion applied to oust the present legal incumbents and crid all will be well otherwise interminable confusion doubt danger and loss to capital an and d labor will ensue the construction attempted by toy mo and B R will have pro deuced great co confusion and ir dosu ai al ready I 1 or if they bo be right th there oye ore has been no incumbent in those offices since the first monday ii in 31 august and all that hs has been coneby buch sach pretended incumbents is nugatory and void told or if they shou should id bay eay these ar are defalto de facto jacco off meers officers and their acts sets abo bood d and valid 1 1 respond then let them remain de facto offie offic ers until their successors are duly elected and qualified for the appointees of the governor may not be lie oven even de facto officers the universally recognized rule ruie howe yer in the tho american states Is to t i that when the statute provides for the holding over until I 1 the successor Is duly elected and qualified that the term lasts until the election and qualification of the successor and such rule has been recognized by the united states supreme court in places over which the united states has excusive exclusive jurisdiction the reasons and philosophy of the rule are that by law the people re tain the right at given periods and disregarded ways to elector elect or appoint the ors but that if from any cause this reserved privilege vIley e of or election or appointment ament be not exercised ezero ged eed the term of the incumbent theio thelo continues until the su successor creasor be duly elected or appointed and quail qualified fled in the w wy ty and at the time provided by the law sa a that no confusion and injury may result to the public or individuals because of there being no such auch officer in the slaughterhouse slaughter house caseb cases the united states supreme court restricted the meaning of the general language of the amendment to the leg Jegl tima to purposes of ita its enactment and held that it was not hi intended tended to and did not abridge the police powers of the states but M B R give to the hoar amendment in a construction moat most unnatural I 1 in order to make it embrace objects foreign from its burp ee ae and such aswill as will produce oatice the very evil that it intended to remedy in other words instead of applying the restrictive rule of the US U B S supreme supreme court they have revero re vered ver ed it into a most expansive siva sive one and such as that able body of learned and experienced jurists can nuver never sanction for it ia is at war with all Arn amerlean american eilean ideas rules of construction and decisions decla decia lons ions of their courts Bless rs M B R indulge the very violent preg pret presumption emption thad thai mr hoar and the senate benato understood the laws and knew know what they were about amut had these theao gentlemen ent lemen turned to the debates in the senate 8 nate nata this presumption would have bave been dissipated at once for instance mr brown oba ac acted ted this thia hoar amendment an au thorl theorized zed aa as he understood it the governor to appoint ah all the ofil cera until their should be elected lond qualified that it might be years thee theelma lra ira arnis mission would bring on an c fla ration tion this brought mr hoar lo 10 to following e explanation X P suc anc sun t I 1 on these theeo so go on and m vida rez for a ft new election of the territorial tetti Terri tortal legislature forthwith that is their duty and than that territorial legislature L in its turn la is to provide ron tor elections for all thebo county ana aua other ether subordinate territorial office mr hoar evidently thought that tho eora cora commissioners mib could order an election and nse asE embling ng of the ter at their plo pio pleasure hure mure whereas they can order neither but tho the territorial statute provides that tho the members 0 ol 01 1 the legislative assembly shall ba be elected in august issa and the law requires them to ai assemble the fai fal following lowing january but again in that same debate mr bro wit ea d 91 9 1 I 1 will suggest that tha usual provI provision slon in states and I 1 suppose in territories where no a action 13 made madaio to fill aa an omee office Is that the tte incumbent remains in office until hta hla la is elected and qualified Is to them anything in tn utah in conflict with that thai mr hoar tle the tte difficulty with that la Is his this the present officers are very many aj ay themy aftem and the edmunds act provides that no shaa shau continue to hotd office aice fice therefore Ther eforo the present officers da do not mt hold there WWI the italics are mine now new did mr hoar mean to say that because th the eEdmunds edmunds bill put under disabilities in all the tho territories and places where the united had exclusive jurhs jurLs jurisdiction diction that therefore the terms bernis of mono monn ga officers office ars ers terminated in utah be came cale no lection was waa held in la august y T cannot BO so understand for that would be logic that would disgrace a bannack indian his meaning was that became because the E edmunds bill had vacated the offices held by poly ganiats that polygamist incur bents could not hoid hold over and therefore the governor should fili fill those vaca vacancies and even in this he mis apprehended both toe purport ur port and provisions of the edmunds bill but this statement of his puts beyond doubt that it was not hia hla intent nor the tho understanding of the tha senate by this amendment to the sundry civil appropriation bill to declare any va candes vacancies but only to provide for such as would become vacant under the provisions ot the edmunds statute became because of tho non holding of the election r and acid this la Is made doubly sure aure by what whai w hat mr blackburn one of the conference committee said in the house of representatives when it concurred in this amendment that Auck suen officers as na could hold over under tho hoe hoi territorial iw not em ern braced in or to be ousted by thI amendment and indeed there is not a word or syllable that authorizes the ousting of any officer whose term lasts until his hia successor is elected and qualified under the territorial rit orial statutes in this hoar amendment e en whether construed construe dl by its own terms which is to the legal rule ruie or by the debates thereon itis equally clear that the hoar amendment made no vacancies but only provided for the filling of such as the edmunda edmunds bill and he iho not holding of the august election pro deuced if those offices be all vacant which they are if M ar a cons construction lr notion of the edmunds edmunda act and ane hoar amendment be correct will they please tell how and before be foret foreL whom the governors appointees are to ex eluto the required bonds and have them approved and take the feces eary oath of office if the county treasurers treasur ers office be vacant how bow can the governor appointee of probate judge qualify if the theoffice office of probate judge be vacant bow caru can the governor governors appointee oi of county clerks execute bond ami ana qualify and nod so eo on ad GENTILE ogden utah |
