| Show MANDAMUS THE wener WEBER COUNTY PROBATE julge amp OF COUNSEL FOR THE INCUMBENT the case of james N kimball v vs s franklin D richard richardi decided by judge emerson in favor of the former Is now pending in the supreme court of the territory mr kimball was the governors governor appointee judge richards ric Bic hards is the occupant of the office of probate judge forve for weber county following is the brief of richards richardb Bic rie hards williams which we consider a conclusive arg areu argument ment ulment and worthy of cf general perusal we cannot publish it in full fuli in one iesue issue of the NEWS but will issue it by in tal stal ments rn in the supreme court of 0 utah territory T e r jamey james jam 03 za N kimball 1 appellee v vs va man mandamus d amus vr franklin frankiln F anklin D richarde charde Bi I 1 appel appellant an t I 1 I 1 this case Is disrobed dis robed of any question as to polygamy or bigamy because there is no charge of such made la in the plaintiffs plaintiff complaint not a single fact is stated or charged from which the court can determine that such buch often e wab was xer exer P committed by the ar appellant the only allusion or charge Is in the following language and found on page record that on said bald dirst dinst monday in august 1882 and at all times hereinafter stated as plaintiff Is inform and believes and upon such anfor mation and belief so charges the tho fact to be said baid defendant was waa a polygamist and not entitled to hold said office of probate judge but for the apparent overlooking this thib important defect by the able judge who tried the case below no further remarks would be made on such a patent defect but clr cir circumstances curn stances atances 3 seem to demand more attention to it than counsel first thought necessary to charge a man with being a polygamist Is the statement of a conclusion of law and not the charging of the essential to show the offense onne onie nse if this had bad been an indictment instead of a eom complaint plaint in mandamus would any court hesitate to say that no onn cal lense ense was charged or that not a single fact faett from which the coun coure could determine that an adof of fence fenee had bad been committed was stated greenleaf Greenl greeni eaf caf in vol 8 3 on evidence see bec saye bays this offense consists in having a plurality cf wives at the same time 11 and inthe lathe in uhe the next nest section he says bays 8 9 9 the indictment states the first a and nd second marriages a id A alleges that at the time of the at aund cond marriage the former husband or wife alfo was alive j in beavnier law law dictionary it atia in defined thus 1 I polygamy Poly garn gain y the act or state of a person chos who knowing that he has hag two or more wives or 01 that she hag two or more husbands marries another and he defines bigamy bigamy Bl gamy the wilfully contracting a second marriage when the contracting party knows that the first is still 91 ss gg Butas said by writers and courts these terms have now by common usage become convertible conver convert table tabie in law therefore no man la 14 a bigamist or polygamist unless he contracts can tracts a second marriage whilst a former one ons is subsisting and the fact of this former marriage and that it still subsists must be shown in the pleadings philologically a man need have no wife to be a polygamist for if he believes in and justifies it he comes within the definition webster in his academic dictionary tio nary defines polygamist one who practices or justifies polygamy can any court determine whether t the he pleader in this instance used the term in its legal or philological sense and if the latter iatter whether he bo meant that defendant practiced rather than justified it II 11 but under of con gress greas known as the act of 1862 1662 and the edmunds edmunds statute approved march 1882 iss other essential facts must appear previous tw to the enactment of july lot 1692 1602 the stat beatea had no law against bigamy in an a ant territory or place over which it ha exclusive jurisdiction and as a ma mat ter of course under tho the unit knitel states constitution forbidding t thi enactment of any ex post facto iva lva a this statute of 1862 was made pro pros ti and not retrospective in I 1 11 operation its language applies it t t only future marriages it could no constitutionally have upon past patt marriages its language langing Is ie every person poon having a abua hu 3 band or wife living who maytie maytid another whether married or sing single I 1 in a a territory or other placa place ove ovel which the united states have ex t elusive j jurisdiction la Is guilty of big bie I 1 f am amy y 31 11 II under this statute there are three threes essential facts all of which musi muhl have occurred to make the chenee lat the accused must have a aare pre i alnus legal wife the marriage complained olt olf must have occurred since J joiy lots 1882 1 ad it must have occurred in i i territory or place over which thi united states have exclusive lurla juria diction I 1 neither of these facts much lees leeh all of them are set out in the plain tafta pleading i the edmunds statute which 1 an amendment to the act of july f 1862 la Is still more specific its lan ian an gua guage geis gels is every person who hag has husband or wife living who in t i territory or other place over which the united states have exclusive I 1 jurisdiction hereafter marries an L other etc is its guilty of polygamy ii thus explicitly making it pro prosper spec tive uve R as to tuis tula crime I 1 and with this express prospect prospective iv 0 operation oration provided pro y idea ta in the first reel seo beo zon mon tl oDthe the eighth section bays says thai thal that thai no polygamist biga bigamist mist or any person cohabiting with more than ou on woman in any ter teri f or other place over which thet tho united states rotates have exclusive jurisdiction sha faa shall he be entitled to vote tote at any may election held in any territory or other place or be etli elli gible for eleo eico rion lion or appointment to or be ba entitled to hold any office or place of public trust etc this section applies to all the territories etc and in hayr hair harmony nony noni with the first section uses terms denoting a prospective operation and not a retrospective one for as it ad ded new af pf penalties disabilities etc it could only escape the constitutional denunciation against export facto laws by a prospective operation the disabilities attach to per I 1 bons sons cohabiting with more than one woman not that has cohabited therefore before any disabilities could attach under this amendment to the statute of 1862 it is essential that either a forbidden marriage or of the forbidden cohabitation should have occurred since its approval march 1882 even had this clear indication of the tho intention of the enacting powe power been wanting or not found in the statute still courts always give a statute only a prospective operation unless a retroactive operation clearly appears 3 even when there is no constitutional barrier as there is here wade on retroactive laws see 34 says one egone of the cardinal rules ruiea by which courts are governed in interpreting statutes is iii that they must be construed as prospective in every instance except where the legislative intent that they shall act retroactively is expressed in clear and unambiguous terms or such ina lna in tent is necessarily implied from the language of the statute which would be inoperative otherwise than retrospectively and a very long list of concurring authorities are referred to thia whid edmunds statute manifest by language a clear legislative intent that it should have a prospective operation but were it other othen otherwise were those prospective words elim still neither expressly nor necessarily impliedly would it appear that a retroactive operation was intended and if it did it would clearly render the statute unconstitutional tut ional as export facto bee see wade on retroactive laws beo bec this direct point as to office came up in the appellate court of jot new now vork tork york 68 N Y people ex cz rd reis vs green the relator being a deputy clerk of the court of special sessions and who was subsequently elected to the general assembly after which the city charter was amended making the offices incompatible pati bies bley and the question being whether said amendment vacated his hla office of deputy clerk cleric chief justice folger volger for the court says the point made by the appellant app ellent that section of the last charter oftie city of new york operate operates tto vacate the of deputy clerk I 1 hield by the tho relator is ia not tenable the language of the section is prospective pec tive A law may not operate mon non existing rights and liabilities without it in terms ex expresses prenes buch ruch I 1 intention 2 hill 1 johnson vs va barsell dardo darde ll though there ii ia no valid night to an office which may inot snot be disturbed by legislation yet the lin tin has in a senses bense sense a right if that right is taken isy tsy by statute the terms be clear in which the purpose Is ia dilated 11 but bat again howit is to be ascertained whether a party has committed the off eff enbe ense denounced by those statutes Is it to be by due process of law or without such Is a citizen to be put under disabilities and de barred of civil rights and aad degrading penalties attached to him without without a roaring bearing without a trial by bv his hib compeer compeeren compe ens ene 4 without indictment or information without a verdict of his countrymen and without a judgment of a competent court on legal proc proceedings the these se grave questions demaud demand serious atten attention tion III ili there was no DO vacancy to fill none that the governor could appoint to therefore his attempt to eil ell sk a vacancy was a mere beutum brutum un enand enaud and aud his comin tavion a wholly worthless document by bythe the territorial statute of feb 20 01 compiled law laws p i see sec it is provided that that on nn the braar for aday in angut auguts ts t 1874 1871 and every two years thereafter r there shail le be elected by the quil quis lift d voters of the several count counties lei of u utah territory one probate judee r each county whose term ol 01 0 oin hali hail be for two jears years and s is duy elected avd and pied pled 91 by this statute the term la is not only for two years but until nis his suc sue cekor is duly elected and hence the preter the election could not of itself work a 5 va canoy caney because the term did not ex pere at the biennial election nor non until a successor wa was s duty duy elected wd omd qualified BO flo that a duly elected and add qualified successor was essential to ter tei terminate minate the term and this provision in the statute so far ai counsel is la formed informed has anally been held in the american states ss as tinga vacancy until hueh sueh successor was duly elected or appointed and qualified and the reasons given vivon are of the most potent char ebar character acter being based on PL pul pui c policy and private rights without stating the many phases under which the question que atlon has been presented and the many reasons gir glrst 0 a for such a rule the ful fol following lowing authorities are referred to as among the prominent ones by tha supreme court of the united states and of the states 6 NV ailace allace united states vs addison Addi bon BOD 23 ohio ollio stat stata stava vs how 37 california Calif orria orala people vs tilton 6 penn va 08 hanly IV if the preter an ele elo elest fon ion could not work a vacancy did the hoar amendment to the civil service bill adopted just at the close of the session of congress in july 1982 1882 I 1 live have that efrece its language is ill the governor of the territory of utah is hereby beeby authorized to appoint officers off leers in said sald territory to 10 fill which may be caused by a falcuto to elect cleat on the first monday in august augusi eighteen hun dred and eighty two in consequence of the provisions of an act ea entitled titled an am act to amend section fifty three hundred and fifty two of the revised statutes of the united states in reference to bigamy and fo rother purposes approved march hold their offices until their successors are elected and qualified under the provisions of said act provided that the term of office of any of said baid of fiers E shall hall noi loi exceed ej eight months what is the governor authorized to do by the term terms sor of this thia act to appoint officers to fill vacancies which may nav be caused by a failure to eks monday in August augurt 1882 1682 it did not profess to declare vacancies clesi nor did it authorize the governor nor lor the courts to declare vacancies can cleb cles but such vacancies as night ts under the territorial statutes occur cr cur cun because of tho the failure to hold eald eaid election were authorized to be filled by the governor and if the governor has found any such vacancies he no doubt had the right to fill them the power to fill vacancies was however confined to mach maeh as a occurred for the one cause WY to wit because of the non holding of buch such election it did not authorize him to fill vacancies which might have or should occur for any but tho the one causo cause and this holdover clause is found in the territorial statute there was no vacancy because of the non holding of the tho election the tho statute provi daa what whai the term terra should be and it was not for two yeara simply eim bim ply pis but for two years and and until a successor should be elected and qualified congress could have shortened this term perhaps s by an explicit repeal of cf the statute and conferring on the governor the appointing power it did not however eee proper to do that but only to provide for the elling filling of such offices as should become vacant by the failure to hold such election the object of congress wag was to prevent and not produce anarchy as would manifestly occur should the tho statute be construed as contended for by the appellee appell ce and his hi s counsel ast 1st if the vacancy occurred by reabon reason of the esth section of the edmunds bill it took place march 22 1882 1582 1 on the approval of said bill an and d did not occur by reagon reason of the non holding of the august election the vacancy exited existed on first monda monday in august 1882 and wag waa not filled by the election but as that did not make the vacancy the governor had no right to fill it under the hoar amendment am aud sud if the vacancy existed on the approval of the edmunds bill all tha the acts a eta of cf the incumbent were were null and vold void from that date unless by the holding of tile the office under claim of tah rih right t he became an officer de facto in which case there wa war 3 no vacancy for so long as there Is an incumbent who has egal authority to dla discharge charge ne ae duties as so well weli baid said by the supreme court of 1 such a thing as a vacancy is a legal lega 1 impossibility sibl bibi lity sao sno if there be vacancies be causo cause of the not said election those vacancies occurred immediately med lately after the forat monday in august 1883 1882 and should have been at once filled by the governor so that his hia appointments would expire eight months thereafter or in may 1853 leaving a hiatus or va vacancies cancle in all such sueh offices from may to august p legal power in anyone to fill such vacancies and thug ihm m most 03 t signally producing the very mischief mischief congress Con gress greEs was trying to avert and this mischief is sufficient of itself to condemn this attempted construction and to relieve the Con congress grosa of the united uni ted states and the president irom from the implied censure of producing anarchy |
