| Show tue THE GOVERNORS APPOINT nus I 1 ZANE SAYS VALID AND THAT jjr SHOULD liae liar neen BEEN BEE BATE AN AX outrageous DECISION UPHOLDING gubernatorial GUBER ONE MAN uan I 1 POWER IN VI arrah ail all the suit of U J wenner against IE ellas eilas liaa S in ith for or salary as probate I 1 ludge judge of salt lake county counts under an appointment from fromm governor murray was concluded in the third district court yesterday afternoon and a decision was rendered by judge jud se zane this morning the suit was as originally planted for 1 1000 and a jury amit impaneled meled to 10 try this question yesterday afternoon however an agreement was parties as to the amount and all the remaining issues being questions of law there was wag na rick aces n ices sity its ity for the jury which was discharged wenner an india of before in the community was one of those appointed to office by the governor in september 1882 ile he wab wab was sies ties designated lesigna bated ted as probate approbate judge of salt lak lake county the appointment having been made under the tile following provision in the law of con congress 1 ress P passed assed in august 1882 2 to prevent what was alleged would be a state of anarchy clah utah the governor of the terfa Teria territory ory of 0 utah is hereby authorized to appoint officers in sald laid baid said territory to fin lin vacancies which may be caused by bv a failure to clec elec en the first monday in august 1 la 2 in consequence of ot the provisions ot of an tin act entitled an act to mend section mod 2 of 0 the revised ft statutes atutes ot or the united tates in reference to beguin biff imy Y and for other purposes approved ed march 2 ad jea JS to hold their offices until their suc 4 are elected and qualified under the provisions of said paid act provided provider that the term of office ot of any of the said officers shall shail not exceed eight months judge ellas elias smith was then acting as as probate proba ic adge judge having been elected to the office by the people the governors appointee demanded a surrender of the position which was refused the judge maintaining that helas he was en ea titled to the office under the provisions of the tile local statute which declares declare in reference to probate judges and others of the county officers that they shall hold office for the term of two years a rl and until their successors are M duly ly elected and quail qualified fled wenner was therefore never given possession posses slon sion nor were any others of of a ion ions list designated by the governor hut but subsequently sued for the emoluments attached to the office the case was argued by judge sprague for the plaintiff and judge Il arkless for the defense and this morning the court rendered a decini decision on in favor of thel plaintiff in substance as follows Z the action Is brought by the plaintiff to rec recover fees received by defendant as probate audze of salt lake county the defendant had been elected on the first monday in august isso 1880 to hold office until his successor was elected und ind qualified on a law was passed by congress providing tor for live commissioners for the tho territory of Uta hand vacating all election offices in the territory the commission to conduct the election no election could be held unless in accordance with that act in august 1882 the attention of congress was called to the tho fact that the commissioners had not been appointed in time for the election on the first monday in august angust which could not therefore be held field under these circumstances congress passed the provision authorizing the governor to till tilt vaca vacancies neles caused by a failure to elect in consequence of the act in reference to bigamy etc under this law the go governor vernor appointed wenner and the question is had the governor the power to do so under this law the plaintiff claims that he had while the defendant insists be he had only power vacancies cies and there was no vacancy the of authorities would seem to be on the general provision that the rio fio governor vernor could only appoint when a vacancy actually occurred this language of con congress 11 ress is coupled with other words with which it must be construed and also with reference to the act of march 22 22 1832 the language authorized the governor to fill till vacancies which may arise by failure to elect in consequence of the act of 1882 it did not give authority to fill all vacancies but only those res resulting hulting irom from a failure to elect cleef in case an au election was prevented in consequence of the act ot march 22 some light may be thrown on this act by the ahe general intent of thelah the law to prevent polygamy the main object of the e law was a blow at polygamy this was evident as it prevented polygamists from sitting injuries on luries juries or even bellev believers ersin in polygamy trials or from front being eligible tor for elec election tiow or holding any office ot of public trust under the united states slates the intention was to deprive them theta of the right to hold office to prevent thern them from holding ollice office it was reasonable to suppose that the la lawmaking W power understood that su such ch persons persona were in office in utah or the act would be aimless all the 0 officers elective in august issa held under the same provision provi alon aion congress must be presumed to know the lawas law as this was required of common people arid and they had passed it the president had approved ol 01 it and if the def defendants end ants claim were correct it would be for no purpose whatever in view of the tile language intent of the act and the fact that congress was attempting to pro videl aids a remedy for lailure failure to hold an election a result ot of their own action they had defeated the election and knew it iland ind tor lor that failure they sought a remedy by giving the governor power to appoint they regarded the failure to elect as constituting a vacancy senator brown objected to the legislation and called their attention to the holding over provision but they paid no attention and passed the law the object ot of which was to provide a substitute for the election to provide for appointment in case an election was not held in view of the language the intent of the law and the cire circumstances uin stances under which it was passed a ed the object being to prevent ly amista from holding this provision was intended to provide for the failure to elect the court was not disposed to hold whether a judicial ascertainment shall determine whether or not a man Is eligible to office from the fact that the defendant in this case was conceded to be a polygamist nor would it inquire whether the governor made an investigation or not the governor had considered that he had a right to make the appointment and his judgment was conclusive as to any finding of fact the territorial supreme court had ruled on this and it Is not the province of the district court to overrule that decision in the light ot of the decisions and the lari iari language guage of the act the court holds that the governor had the power to appoint the question had been raised that there were two issues in the me case but out as all an were questions of law they could be tried to together I 1 ether the defendant had set up his services as an offset against the fees received in this case the plaintiff on september I 1 yli 22 1882 had received his commission and demanded the office which was refused this refusal was in good faith bud but the defendant had bad assumed to say what the law was and if he mistook the law lav hd he must take the consequences the plaintiff could not be deprived of the right fight to assume the duties of the office ile he could recover for but eight months as that was the period during which the appointment continued and would be entitled to fees amounting to 1 1400 and interest and costs an appeal to the Su supreme court will be taken from judge jude zanes de decision islon |
