Show THE DECISION IN THE OFFICE CASES IT IS ADVERSE ta TO POPULAR CHOICE following is the full text of the territorial rit orial supreme court decision delivered saturday june 19 th 1888 1886 which declares that the people have not the right to fill the territorial offices but that it is the governors prerogative the case on which the matter was tested was that of the auditor of public accounts nephi W clayton and affects the office of tre treasurer asu and others after reviewing the complaint and answer in the case the court says it will be seen that the defendant founds his right to hold the office upon the fact that at the regular election held on august he was elected to the position t ton by the people of utah and afterwards commissioned by the governor that no one has since been elected to fill the office he does no not allege that he ever qualified as required ire by law but insists that by vi virtue e of f said election and the said com commission I 1 slon of said governor and not otherwise he is acting as auditor of public accounts by the liro provisions visions of an act of this Terri territory lory eD entitled titled an act to provide for the appointment of a territorial treasurer and auditor of public accounts it is provided in section 1 that a treasurer and auditor of public accounts shall be elected by the joint vote of both hou houses sea of tile the legis dative assembly whose term of office shall be four years and until their s successors u c are elected and qualified u unless n sooner superseded by legislative action comp laws 2876 1876 IT p 90 in 1878 the legislative assembly passed an act which was duly approved providing that the cerrilo rial treasurer and auditor of public accounts shall be hereafter elected dy by the qualified voters at the general election in august 1878 and blen nally thereafter and the present incumbents shall hold their respective offices and perform the duties of the same until the next general election and until their successors shall be elected and qualified laws 1878 p 27 see sec 4 it is contended by the plaintiff and respondent that the laws providing tor for the election of a treasurer and auditor of public accounts are in conflict with section 7 of the organic act of utah and with section 1857 of the revised statues of the united states and that therefore the defendant is not legally entitled to the office held byham by him section 7 of the organic act of the territory provides that all township district and county officers not herein otherwise provided pr ovidea for shall be appointed or elected as tile the case may be in such manner as shall be provided by the governor and legislative isla tive assembly of the territory of utah the governor shall nominate and by and with the advice and consent of the legislative council appoint all officers not herein otherwise provided for and in the first instance the governor alone may appoint all said officers who shall hold their offices until the end of the first session of the legislative assembly comp lazos laws 1876 p 30 section ioa ot of statutes of the united states is as follows tol lows all ail township district and county officers except justices ot of the peace and gen eral officers of the militia shall be appointed or elected in such atch a manner as may be provided by the governor and legislative assembly of every terr territory atory and all other officers not herein provided for the governor shall nominate and by and with the advice and consent of the legislative council of each territory shall sal appoint congress having tile the paramount right to legislate for the territories it must be conceded that if the act of the legislature under consideration is open to the objection urged against the same cannot be upheld or 8 sustainer estai ned neu taylor v stevenson 9 pac sep rep in the case just cited the court had under consideration section 1857 of the revised laws of the united states in connection with an act passed by the legislature of idaho providing for the appointment of two commiss commissioners loners who in conjunction with one other resident of the Territory to be selected and appointed by the two named should perform tile the functions of the office created for the term specified by the law the court in that case says this delegation of authority on the part of the governor and legislative council to the two commissioners to select and appoint another must be regarded with some degree of misgiving and doubt all the powers in trusted to government in the territories as well as in the states are arc divided into three departments the executive the legislative and judicial it is wisely provided that th the functions appropriate to each of these branches of the government snail shall be vested in a separate body of public servants ams and it is apparent that the perfection of the system requires that tile the lines which separate and divide these departments shall be clearly defined and closely followed it is also true as a general proposition that the powers confided by the fundamental law to one of these departments cannot be exercised by another and where as in this case the organic law provides that the governor by and with the consent of the legislative counsel shall appoint the territorial officers we do not think that the authority can be delegated to another body and the governor thus divested of nis ills prerogative if this can be done and sanctioned in one instance it may be in others and hv tafu method or in the exercise of the two thirds legislative rule over the governors veto the executive may be deprived of the appointing power which congress has wisely confided to the executive branch of the territorial government we are clearly of the opinion that the act in question is in conflict with the organic law and therefore void and an that the defendant has no title to the office of auditor of public accounts of this territory it seems to us that no argument is needed to sustain this conclusion the Org organic atlie act hu has confided to the governor the duty of appoint appointing anuth the person to ill fill the office by ana with tile the advice and consent of the legislative council if the legislature can take from him this power and provide for the selection of the officer by any other mode it can take from him every prerogative he possesses congress having pointed out the way by which the office in question should be filled the legislature has no power to provide another and different mode duncan vs meal mcallister alaster Al hster 2 utah 81 the case just cited fully answers the argument of counsel for appellant that the ease case of clinton vs Enget engelbrecht brecht 13 wall and that of show isnow vs U S 18 wall hold that another ael act passed under precisely the same conditions as the one in controversy was valid see duncan vs mcallister 1 utah 88 85 but it is argued if tile the act prescribing the mode of filling the office in question is void by reason of its being bein 9 in conflict with the organic act then the offices do not exist this court bourt held to lo the contrary years ago in duncah vs mcallister I 1 utah 87 and we see no reason tor for holding otherwise at this time the act creating the office in question is entitled an ae t tt provide lor for the appointment of a territorial rit orial treasurer and auditor of pub lie he accounts 11 the act creates the th office and it provides the mode ol 01 election it is therefore twofold two fold the first partis part is valid the latter patis partis invalid the act bastoe must oe made to read in accord with the organic law which vests the power of appointment in the governor and council Jo uncil the legislature of the territory has taken the same view that we leow now take of the question for in 1878 it changed the law so far as the manner of electing the office is concerned by the act of 1852 the auditor was elected by the legislature by the act of 1878 he is elected by the people in changing the manner of election the legislature had bad ro BO idea that it was legislating the office out of existence by its action it determined that the office remained no matter how the officer should ae be chosen moreover if the whole act should be held void it would not help the defendant he would be just as clearly a usurper he has no more interest than any other citizen in the question whether arthur pratt the governors appointee has any title to tile the office and we think the court below properly denied the defendants claim to litigate pratts title he is not interested in the question as to pratts right but only in the determination of his own right to the office people v abbott 16 cat cal people v miles 2 slick mich but it is insisted that while this may all be true the act of tile the legislature Legisla tuie tui e which we hold to be invalid ihas bas been ratified by long acquiescence acquiesce ned by congress and opie of this territory as well as by tile the action of the territorial legislature if the legislature had not the power to pass the act in the first instance it had bad no authority to ratify it A legislative body may ratify an act subsequently when it had the power to do the act in the first instance it cannot by ratification make a void act valid congress did not pass the act in question and the territory can only exercise such congress powers as are given it expressly by congress or which are necessary in the exercise of the powers expressly granted it is said that it is the duty of the territorial secretary to report the laws lawa passed by our legislature to congress but the approval of congress is not essential to the validity of the law nor does its invalidity depend upon the disapproval of congress it 11 the law is contrary to the constitution of the united states or to the organic act or to any law 0 of congress it is invalid without any disapproval of congress neither can the acquiescence of the people of the territory breathe the breath of life into an invalid law the law in question was dead from the beginning we quite agree with counsel for the respondent respondent that an officers right to hol bold over until a successor is duly elected electea or othor otherwise wise chosen and qualified only follows where he has been legally in the exercise of the office and in such cases caseb he be holds over as an officer er de jure but on the contrary if the incumbent incur cent has never been legally invested wita the office he is s nothing more than an officer do de facto fa ato I 1 there is in legal contemplation in such sucha a case a vacancy lin the office people v stratton 28 cal state ustate v howe 25 ohio st 18 aan rep people v tilton 37 cal people v wells cal there being a vacancy in the office we think there can be no doubt but what the governor was authorized to fill the same by appointment and that the court below was waa correct in adjudge ing that arab ur pratt by virtue of t the e governors appointment and his qualification it under that appointment is the auditor of public accounts for the territory of utah it is provided by section 8 of the act of 1852 that vacancies may be filled by bv executive appointment in the forego ing or any office when the mode of supplying vacancies is not prescribed by law nothing can be plainer than the foregoing and the act of the governor in making the appointment was clearly within his power and strictly within his bis duties if he had bad omitted to make the appointment he would nave failed to have done his duty me he simply did that which the law required him to do we hold that arthur pratt is the auditor of public accounts for the territory and that he is entitled to be put i in Ps possession 0 session of said office to getner etner with the books safe and all all and singular the insignia thereunto belonging lon ging it t is a also urged that the demurrer should have been sustained because the complaint does doe not set forth the facts as required by our code the complaint is brought under chapter 6 5 of the laws of 1884 see laws 1884 section of that act is as follows an action may be brought in the name of the people of this territory against any person who usurps intrudes into holds or exercises any office or franchise real or pretended within the Territory without authority of law the complaint alk that the defendant did usurp and intrude into the office of auditor of public accounts la in and for the territory of uenh and ever since that time he has and does still hold and exercise the functions of said saia office without authority of law jaw in a criminal case it is usually sufficient to describe a status tory offense in terms of the statute it is insisted that this statement is a conclusion of law that it does not conform to the code and bato the filets facts constituting the cause of action the complaint allet es ea taut mai the me respondent respond eui holds and exer exercises cibes the bunc functions 61 s of the office without authority 0 of at law it would have been more precise to have stated without ap that being the only way ay in ivcich bilich the del dei am aal could lawfully law lully enter into the office the object of the code is to make pleadings plain and simple it does not require ot of the pleader more than was required at the common law it usually requires less of them if then this complaint had been sufficient in its allegations as tested by the rules ot of the common law it is su sufficient clent under the code while our statute has changed the form of pleading with respect re to rights and wrongs of which quo warranto carranto war was formerly the remedy the change is simp simply lyas as forman to form and not as to substance the position of the parties the rules of evidence and the presumptions of the law remain the same as before As we shall see the burden is upon the defendant to show his right to the office when it is challenged by the people it is not necessary to show or point out ont with great particularity the acts which constitute the wrongful usurpation or wrongful holding of the office if the defendant had an appointment he had bad it in his possession and it is not necca sary to allege it with the nicety required in other actions it is sufficient lo 10 challenge the defendants right aud and he must disclaim or justify the ancient writ of quo warranto carranto war was a writ of right for the sing aing against one who usurps any office franchise or liberty to inquire by what authority he supports his claim in order to determine the right 3 ba gom com 2 62 in theory the king was the fountain of hanor of office aud of privilege and whenever a subject undertook to exercise a public office or oil franchise he was when called upon by the crown through the writ of quo warranto carranto war compelled to show hi and if hel ailed to do so judgment passed against him the fountain of the rule may cave been that as all offices and franchises are the gift of the king they were deemie to be possessed by him and until his grant was shown there could be no presumption that he had parted with them or invested a subject with the right to exercise by delegation any part ot of the royal prorogate pre pro debut ie but whatever may have been the origin of the rule it was wad well established and was applied also in cases where proceedings probe edings edinga by information in the nature of a quo beor teor were resorted to as a substitute for the aril 1 rex bea v leigh 4 burr 2143 in this territory a remedy by action is given in the place of the writ of quo warranto carranto war and an information in the nature of a quo warranto carranto war the people are arc in this country the ultimate source of the right to hold office and now under the code as at common law jaw where the right of a person erson exercising an office is challenge challenged ina in a direct pro ceede by the district attorney the defendant must establish his title or |