Show RULING OF THE Y GENT GENERAL eran ERAL 0 ON N territorial OFFICES it is generally understood by the public of this territory that there has been for years past a conflict of opinion as to whether certain of the Terri toria torla officers who have been for almost thirty years elected by the people were properly elective or appointive governor murray has claimed that the ath section of the organic act authorized him to appoint them inasmuch as it says he shall nominate and by and with the advice and consent of the legislative council off omm leens officers not herein otherwise provided for op while others claimed that the territorial statutes providing for the election of these of officers fleeks by the people were valid the utah commissioners who of course have no more authority in the matter than so many private citizens also ruled in favor of the governors views and they havin having control cont lot the elections the people were prevented from electing these officers as they had formerly done the governor presumed to appoint men to fill these offices without however asking the advice or consent of the legislative council but as tile the legislature failed to ratify 0 his nominations and the parties arties artles filling tilling these offices and who V had kad been elected so to do until their successors successor 4 in office were elected and qualified refused to give them up to the governors appointees they remain as they were it will be seen by what follows that three of the utah commissioners have made application through the secretary of the interior for a ruling on this question from the department of justice in washington and that attorney general garland has decided that the offices of the territorial superintendent of district schools I 1 auditor of public accounts and territorial treasurer should be filled by nomination of the governor 1 by chy and with the advice and consent of the legislative council as the organic act provides and that the territorial statutes provi providing dim for the election of these officers bi by the people are in conflict with it and there fore not valid it will now be seen whether the governor will nominate such men to fill these offices as the legislative council can endorse for should he fall to do so the present incumbents will certainly continue to hold over following is the correspondence referred to LETTER erom THE commission OFFICE OF olp THE UTAH commission COMMISSIO IK I 1 SALT LAKE CITY may 14 1885 J f sir eor for several years it has beena been a disputed question whether certain territorial off omm meers officers in utah are to be appointed by the governor with the assent of the legislative council under the organic act of september 9 1850 section 7 or to be chosen by the people at their general elections under certain acts of the legislative assembly the officers referred to are territorial superintendent of Di district strict school territorial auditor of public accounts territorial treasurer and commissioner to locate university lands in pre vre preparing aring f for or the general election to be heid held held heid in august of this year it is important for us as well as the election off officers leers appointed by us under the ae edmunds act to have this question authoritatively settled and we therefore address you this communication with the request that the question may be referred to the honorable attorney general of the united states the governor for some years past has nominated these officers to the le legislative council and they refusing to recognize his power of appointment decline to give t their thein ir or assent upon the alle alie alleged ed ground round that such onnic officers rss should oui out be elected by the people at t their air general en election under the territorial statutes our attention having been more than once called to this question we con eluded with considerable doubt and hesitation that the said officers are to be appointed by the governor in order to facilitate the fhe examination by the attorney general we nye refer to the following statutes and authorities pro and co con n 1 IK IN FAVOR OF ELECTION BY THE PEOPLE compiled laws af utah sec 44 pa pae page e 90 chapter 11 sec see 4 session L L of utah 1878 page 2 27 compiled compile laws of Utah sec see pa page e 4 at chapter r 19 sec 14 page 3 31 1 of session laws of utah A D ja isso 1880 S 0 the ithe language of this section 14 is identical with that of act of con congress ress of f february 21 aw page age 1 lil lii gil voi voy vol voi 10 U S statutes at larze large a rge compiled laws of utah sec age ge n sc 6 of organic act compiled L L ulah lah pages 30 38 ee lie 1831 1851 compiled L L lof lol of utah 38 2 IX FAVOR of OP appointment BY THE GOVERNOR sec ec 7 of organic act laws of utah page so 30 sec see 1837 1857 compiled laws of utah page 39 ithe the compiled laws of utah A D 1870 1876 and the session acts of utah 1878 are in the office of the attorney general left there some months ago by secretary thomas those who maintain the validity of the territorial acts rely upon a statement made by the chief justice in the case of clinton vs englebrecht 13 wallace which is found on page s second paragraph from the top Y per e contra ontra it is claimed by the other side that the presumption of approval by C congress on gress of a territorial term orial act by reason of non action and lapse of time does not prevail in case of a direct conflict between the act of congress and the act of the territorial le legislative isla isia assembly it should be added that the office of commissioner to locate the university lands appears to stand on a different footing from the ot others hersby by reason of the fact that the act of congress referred to was approved in 1855 five years after the date of the organic act we have havre thus endeavored to state the question fully and impartially and we respectfully request an early opinion from the attorney general very respectfully yours A B CARLTON GL G L GODFREY K R J PETTIGREW W to the honorable the secretary of the interior washington 0 DC D C lefter LETTER LE iter FROM THE ATTORNEY GEN ERAL der dep department OF JUSTICE washington june 5 1885 1883 L Q C lamar secretary of the interior sir at the instance of the utah commission the Honora bleH L mildr muldrow ow acting secretary of the interior in a letter dated the ultimo requested I 1 my ny opinion upon the following question Whet whether lier iier certain territorial officers in utah namely superintendent of district schools auditor of public accounts treasurer and commissioners ners to lands should be appointed by the governor with the assent of the le legislative council or chosen by the people at their general elections for convenience so much of the question as relates to the commissioners will be considered separately as the appointment or election of those officers appears appeals to be controlled by a provision r sa s1 not applicable to the others upon p on examination of the statutes enacted by ane territorial legislature it appears that the superintendent auditor and treasurer are quiren to be elected biennially at the general election by the qualified voters of the territory see comp laws of utah 1876 p act of eeb feb 22 1878 chap 11 laws of 2 ad session p 27 affie the florganic hor lOr ganic law ganv however see section 7 of the act of congress of sept chap 51 declares that the governor shall nominate and by and with the advice and consent of the legislative council appoint all officers not herein otherwise provided for f or I 1 and as the three territorial officers last mentioned are not therein otherwise provided for a direct conflict manifestly exists between the statutes of the territorial legislature above referred to and the or organic anic law the organic law of a territory takes the place of a constitution as the fundamental law of the local government it is obligatory on and binds the territorial authorities nat bank vs county of yankton U S any act of tile the territorial legislature therewith must oe be held void vol ferris vs higley 20 wall i cone congress re s may undoubtedly make a void act 0 the territorial legislature valid and a valid act void loi ibi ibl U S supra but for the exercise of this power 0 we S some on its part parti t E having in t that at enn eff effect act would be necessary C certainly e anly nothing can be implied IE in fa favor tavor v rot not of t the e validity of a territorial S statute which conflicts with an express provision of the organic law of ot the territory f from rom the mere fact that thai congress has not disapproved it it follows that the statutes of utah iu in so as of district schools auditor of public accounts and treasurer of the territory to be elected being contrary to the provision of the organic law herein hereinbefore bei bel ore mentioned I 1 are a nullity and that those offices S hould should be ap primed in conf conformity to that provision A similar conclusion was reached by the supreme court of that territory in regard to the territorial marshal marsha rf who by an act of the legislature of of the territory was required to be elected by a joint vote of both houses thereof the court held the act to be inconsistent with the provision of the organic law lany above adverted to and therefore void vold see ex parte duncan etc I 1 utah rep 81 si in regard to the commissioners these officers are by the te territorial statutes required to be elected annually by the qualified voters at the general election com corn laws of utah 1846 1876 p by the ad section of the act of congress of february 21 chap a certain quantity of land was reserved for the establishment of a university to be selected under the direction of 01 the legislature etc the legislature of the territory provided for the selection of this land by creating a board of commissioners to consist of three men elected as above and devolving upon such board the duty of selecting the land I 1 am of the opinion that the territorial legislature by virtue of said act was invested with full over the selection of the land including in the tha establishment of the agency which such selection was to be accod hed etwas it was at liber ilber libertito liberty to devolve the duty of selecting on officers already created or authorize the appointment of persons for that purpose by such officers or by the governor or otherwise provide the instrumentality for carrying 0 its will upon the subject into effect the commissioners in question are not therefore to be regarded as within the operation of the above mentioned provision of the organic law and their election in the manner prescribed by the territorial statute Is proper I 1 am sir A 11 II GA oarland OAKLAND attorney general |