| Show DISTRICT ard arr ATTORNEY r 0 RN NRY OPINION ark are E territorial OFFICERS ELECTIVE SHOULD BALLOTS WITH surplus AGE BK BE COUNTED to the utah nah commission on the dinst your honorably honorable body submitted for my opinion the tw following questions first are the ollices offices of riat treasurer auditor of public Account accounts so superintendent of district schools add adf commissioners to locate sitt sitf lands to be filled by election by thi tbt people ur should the governor nomi nate and by and with the advice q the legislative council appoint ther thero to second if not elective should t th ballot of any elector cast at the agn gener e ae election for county and precinct ollic office be rejected and held invalid in fil toto tota bw bes cause it contains besides the naine of candidates borsuch for such county and pre prel offices names of persons to 19 eeli said territorial offices the answer to the first question turns upon the proper interpretation of the organic act the language of which is to my mind so plain as to leave no room lor construction thit that act provides for the election by the people of the members of the legislative assembly and an igent for the appointment by the Pres president of a governor secretary chief justice and associate justices district attorney and L t S marshal it also provides that all township district and county officers not therein otherwise provided for shall be appointed or elected as the cas caseday case may emay be in such mauner manner as may maybe be provided by the governor and legislative assembly of the territory and further that the governor shall nominate and by and with the advice of the legislative council appoint all officers not herein otherwise provided pi ovideA for the office of territorial auditor for instance Is not provided for in the organic act neither is it a brict or county office under wrider the plain letter of the act then it is to be filled by appointment of the governor by budwith and aud with the advice and consent ol 01 of the legislative 11 council it is often urged that Inas inasmuch muchas as the territorial legislature provided so long ago as 1832 1852 that certain of these offices should be filled py by joint vote of the legislative assembly and subsequently that they should be filled by bv election by the people and lna Ina inasmuch as these provisions alons of jot the territorial statutes have nave always been acted upon as valid without any protest on the part of congress they have received rece iwed ired the approval al of congress by implies ti tin tia n the cases of clinton vs enel knel engel brecht IS 13 wall walland wailand and snow vs states 18 wall are relied upon a as usta this position ion lon in neither of these cases was the quest ionas to the mode of tilling filling territorial which was not provided foien for iu the organic act involved nor was it in either elther case passed upon by theroun the coun court inthe lathe in the first case Iti it is true the point was made by bv counsel but not being properly before the court it was wag not considered and is disposed of in these words non nordo nor do we think the other objection sound viz that the required participation of ulle ulie terri tor at al marshal in summoning jurors invalidated llis liis acts because he was elected by the legislature and not appointed by the governor ile he acted as territorial marshal under color of authority tho rity and if he was not legally such his acts cannot be questioned indirectly I 1 tito tio doctrine of approval by s of territorial legislation by tacit 1 recognition cannot be carried further than this to wit enactments of a territorial legislature which are not in conflict witha with a con statute are to be taken as approved proved by 01 congress unless affirmatively disapproved hence as to such enactments uhe the silence of the national legislature upon the subject for a reasonable time warrants us in assuming the approval of congress Con gres the case is different however when the local legislature le exceeds the authority given acing congress ress is the source of its power created by the federal statute it has no authority except that granted when a prohibition exists its acts in contravention thereof are usurpations and there is no necessity for further action by the supreme authority in such case con gross gress has spoken and disapproved in advance would it be contended that the failure of congress to affirmatively disapprove of an act of the utah legislature relative to church ancor po rations and the acquirement of of real property there thereby by passed in open defiance afan of an existing federal statute is to be taken as approved by congress simply because con congress ress falls fails to affirmatively disapprove it certainly not net congress having stated its disapproval by marking the limitations of power nothing remains but for the courts to enforce the cont controlling rollin the supreme law in case the territorial law Is vold void ab inirio initio ana the silence of congress cannot revivify where there never was an existence in such case nothing short of an express approval by congress can give effect to the territorial statute see ferris vs lii iii higley gley giey 20 wall As to the second question I 1 I 1 am of opinion that the ballot should not be rejected in toto roto but that it should be co counted tinted for the persons named therein for counts and precinct offices ana ani the voting for candidates for the territorial territorial offices should be treated as surplus age the elector in casting such ballot has expressed his choice of persons to fill the county and precinct offices which are elective in clear and un mista keable terms effect is to be given to his voice thus expressed unless such ballot was cast in plain contravention traven tion of some law the putting u upon on his ballot the name of a person to IT nil nii an ail office not elective or not then vacant is at most an irregularity often the result of an honest hll hil mistake never indicative of a fraudulent intent indeed nothing fraudulent could be accomplished complis hed by it nor could anyone be injured by it such suich irregularities should not be held to silence the ee voice of the elector in reference to matters respecting which he has a right to express andaas and has clearly expressed his purpose in the method pointed out by the statute Respect respectfully full fuli submitted W 17 H DICKSON july iwa |
