OCR Text |
Show PAGE FIVE THE DAILY RECORD power, as di.'it iiiiiiLhlu-laws. but i;.j t to ruin' i uihoril y In n.iil charged with thr duly of mirli nloi tunc lions, . . , l,i (jisl.it The powers of the. government, of the State of Ltali iliall he divided into three, distinct departments, the Legislative, the Executive, i vi- ix ui ive. power, is the ll.rm or appoint the agents fhe latirr are executive rum I l ' t i- and the Judicial, and no person charged with the exercis of power a properly belonging to one of these, departments, shall exercise any functions appertaining to either of the others, except in the cases JANUARY 22, 1970 THUH.-DA- In re Opinion of the Justices, 14 N. II. M H')7 (Mass, 1939), dealt wjih a quest inn of Die valldily of a proposed statute which provided that a power of appoint me ur was vnii-'- in flu president of the hi natc and the sneaker oi the house of representative!,, J'lu: court held an follows: herein expressly directed or permitted. J We read in Black's Constitutional Law at page 78: "The legislature cannot lawfully usurp any of the functions confided by the constitution to the executive department, such as the power to make appointments to office. 11 Wt arc oi tin opinion, however, flint the power ol appointing such members cannot be ronfernd by hiw upon flic President ol the Senate and the Speaker ol the IIdum of Kepi r ntalives , whether or not such members are riquin to la cIiom a Irmii among the members of the the power to appoint and the power to Senate and oi the ll.msi . remove oilicer are in tin ir natuic executive powers." Citations omitted. J The Foundnc.' t, ui this v.i neial principle is not impaired by the fact that the. Constitution isplubly nrpowrrs t hr General ail civil officers within the Court in name and si tile annually 1, I. art 2, c. said t orniijonwe.jlt h. ,ni. 4, ,ml provides that iht. "senate, shall hr. a court with mil authority to hear and determine i all impeachments marie by tin house preventative, against any . . . ot the. alih. t nr uinmouwi officer officer In Re Opinion of the. Justices, 14N.E, 2d 465 (Mass. 1938). 8A.L.K, 166, 169, the statute provided that the majority of the justices of the Supreme Judicial Court could, ii their judgment so required, remove from office clerks of court; and since these officers were involved in the administration of justice--judici- al busine al part of the statute was held constitutional. However, another part of the statute provided for removal of mayors of cities; and in holding that the legislature could uoi confer on the courts this power to remove, the court said: 1 1 1 ss-th- 4 provides that The proposed add.tinn to the existing the Justices "may, upon a petition brought by the attorney general, if in their judgment the puhl.t good so requires, remove a mayor of any city or a chief of police of any city or town. " These officers arc largely municipal or local in their fie.ld of operation. In the main, they perform executive duties. They have, no intimate connection with the courts or the administration of justice. The removal of such officers cannot rightly be said to be incidental to the judicial tunc lion. The. reasons which upheld the statute as to the. removal of at'orneys and other county officers are entirely want ing ir, tlir proposed bill as to the removal of bee-lio- d:-lri- mayors. . . ct . The power o remote officers is executive in its nature. Citations omitted Court haw no inherent power to remove elected or exec ut it e oJlivtr. . . . The members of the judiciary cannot be required 1o appoint such officers. Citation omitted Removal stand- - in general on the same footing. . . . the case of Slate rel. Collett v. Corby, 23 N. E. 678 (Ind. 1890), the office of director of the depart me.nl of geology and natural resources was created, and the. general assembly (legislature) of Indiana by election of its own members those, the. defendant Gorby to fill the office. The plaintiff Colli-.t- t was appointed by the governor. The question entitled to hold the office. The before the court was which party court held: In . ... the case of Slate ex rel. Jameson v. Denny, 118 21 N. Ind. 382, E. Rep. 252, it was held that the general t or appoint the members of a assembly had no powi.r to board of public works ami otiairs fm the rifles named in the act of March 9 1889. That decision rests upon the that so much of grounds, as therein expressly stated--Firs- t, the act as attempted to orm r on the general assembly the duty o rlecth'g or appoint .:m :!. individual members of that board to or .nhru.iivcrat it e furiCiiOtis uti sought tin c was torbidden to exercise; the onvtltui under it which, ion, In the case of City oi Evansville v. State, 118 Ind. 426, 21 N. E. Rep. 267, and in the case of State ex rel. Holt v. Denny, 1 IS Ind. 441 21 N. L. lep. 274, it was held that the general assembly does not possess the power to elector appoint the individual members of a metropolitan board of police and fire department provided for by an act of the general assembly of the 7th of March, 1889. . . . In ... v ... t ! j There is sonic authority holding tint il r legislature may reserve unto However, wc th.nk belter reasoning avoids such itself the power to appoint. a holding. In addition to the constitutional ground, there are common-sens- e reasons which are obvious. It the legislative bony may create, olfices and appoint thereto, then it could change the administrative set-u- p of a state gove r nine nt at will; vdille if the appointin'- til to any new oft ices was not permitted to the legislature, the teinli ncy to cli.inge and shuttle the administrative agencies would be lessened and wool cl only be c Heeled when there was a public need for it. The defendants point to a number of Utah statutes which create offices and provide for appointment:) other than bv the. governor. The practical construction placed on constitutional provisions, when long acquiesced in, is of aid to the. courts in determining the meaning m the language of a constitutional provision, but it cannot be controlling so as to amend the Constitution by means of a series ot mutual mistakes, and especially is this true where the language is otherwise clear. T. Lockwood v. Jordan, 231 1. 2d 423 fAri. IiSl), In re Terrell, 86 P. 266 (Mont. 1906), dicta holding legislature rould impose the. duly ot appointing upon district judges. Some ol th i.vti-.- ritrrrtfi t to n, or to the oii.it rs fli.roi it.c rgl. to in.is Such a -- urn n to that i srnply th--: otn before blu.. nrojgh contii ut.onaliy. ti- Under a pure democ re art perm rterl to vow up. for the power of tlir. pcopl. . , t:u. or lea Hc-e.- all of the propl j c arii1 : r.cl t .. n u- - rial t t f chosen rcpte.'.r.a.- c. to ..m retain other power s unto the rr.'C I. r by all the. people ot each the. - In all cm po . to its the p opl. aticctcd by lor a constitution, tt c ,r:J t!n,t, . nation i.o r.i . population p,rr ,'piii , it., r F., a all : ariy - O r.n c t unto the legislature The antwer appo.ritmr.nt.v. r ot appo n. mr.r ha never i,u: tor mu - law town mert.r.gs of the erviil r a l,w wh, h is enacted. In the n Stall.tlir. nmf. thing was more .r. nasrd, :t w r.ot possible for 't. pi . z'. th. . p- -, o ip , 'r. powi t vy mr-a- v crtg. ot lrtws. It therefore, nnt ml ove r - ui.t, tntm and to r ot . conrtitutions adopted I lie stair ar.o t. the irdr ral y.--t pi veil, thote delegated . h.r-rhave d'.' .ncd ,'r;to thti'.c. cii.piriinr.i.t . oi gov powerthe executive, the lr.giMiivc., .ir.d th b.a.clal; ana to 'r.'ure the .liability . urr. unto and of this lorm of goveinmr-.r.- t .r.u to themselves v - . enduring liberty and irrraom from Tyranny, rhr people wjxeiy wvote into their constitutions prov I'.igi n similar to our own Article V, Section 1, which absolutc-lprevent ai-- pi r?or. chargrd with powers properly to one belonging any ot the. functions apperdepartment from . the -eithc-to wher-of xc the r war other: pr taining pcexpressly so granted in the Constitution i. ir.lt. This I. nor to that the power to appoint is not left in the court a ana thr. IcgivUtuit. insofar as it relates to agents, clerks, and nv.r.iatr r r'l.gageci in the workpertaining to such branch of government, lor to allow the e.xrcut.vc to appoint the officers necessary to the carry. ng out of the function-- of an independent branch or division of government would prevent that from being independent. y the (.xpri sc terms of the constitution the general assembly is prohibited irorn exercising executive or administrative function, excepl in case s expressly provided for by that instrument. I By . . . Nevada statute gave judges the power to grant certificates of authority to ordained minister tu perform marriages. In Galloway v. Truesdale, 422 P. 2d 237 (Ntv. 19.7i the Nevada court held that the legislature could not confer the power upon the courts and that any attempt to do so would be-- violation of rhe separation of the powers of the three divisions of government. A a - r s-i- The holding ir. thr . ise ol State 244, 247 (Ird. 1889; i .n point; The case of Springer v. Philippine Islands, 277 U. S. 189, 72 L. Erl. 845, 48 S. Ct. 480 '1928', involved the power of the legislature to vest the voting power of govc rr.ment-owne- d corporate stock in a committee consisting of the go ernor-g- c neral, the president of the senate, and the speaker of the houAi' ol n prr m.ntatives. The Supreme Court of the United States in holding the art to hr in violation of the Organic ul. ( Ifovtv v. Noble. E. 21 N. .A dr pa rtmr-ji- t witiiout thr. power to select those to whom It mil intruu part ot it:. autica cannot be not l.t. it :t n:u-- t ac.p- - ai m.ni; ic.r r, drd assistants, " indep, , as Lord Bacor. call jnrvoni s.lecuu for rhem i h r di par tin r d p r.ucnt on thr department tin r it wh:ih mak thr. .r l.ct:or.. Tn h,. Indeperdert the power of thr jud.CTar", mu-- ii: and txlurlve It cannot he lu :f the Ug:sliturr may r. 't oi tin- rlul-.- tt choose those enpri whom ,t ,'r.all i.j'nr or .is : orf Iri, r.ccir. If one - tin. r en' ' i d i.o nr.oihr.r ministers k.r.gdom ar.d a . s t a n s , to vh.irc w:th tin. go- er. 'ng its functions Ilir. l,tti.r kiigrtom Is ,r. no and dut Ir.dr pendent. . th-in- by-aro- i . Act said: t., t . t Thus the Organ, i Act, following the. rule established by the American const .tu ums both state and Federal, divides the legislative, government into lhrt-.r- separate departments--th- e executive, and judnial. home ot our state constitutions expressly provide, in on lorm nr iiulher that the legislative, executive and judicial powers ot the government shall be lorevcr separate and distinct from each other. Other constitutions, including that of the United States, do not contain such an express provision. But it is implicit in all, as a conclusion logically following from the separation of the. several departments. See Kilhourn v. Thompson, 103 U. S. 168, 190, 191, 2i L. rd. 377, 3Rl. 387. And this separation and the consequent exclusive character of the powers conferred upon each of merely a matter of the three departments is basic and vital--n- ot the principle is implicit in the governmental mechanism. That Philippine Organic Act does not admit of doubt. Citation omitted. It may be stated then, as a general rule inherent in the American constitutional system, that, unless otherwise expressly provided or incidental to the powers conferred, the legislature cannot exercise either executive or judicial power; the judiciary cannot exercise either executive or legislative power. The existence in the various constitutions of occasional provisions expressly giving to one of the departments powers which by their nature otherwise would fall within the general scope of the authority of another department emphasir.es, rather than casts doubt upon, the generally inviolate character of this basic rule. if w-t- po-..,- vr - po-vr-.- So mu h ha r ... fald ard wr'ttrr. anout thr. powers belonging to rr.mr n tha1 it would rc trite to attempt to restate them, it w.ll in r routll to ,a tlmt the legislative branch should masc thr law, the juci.c.al hould 'ortinrd to interpreting it, ar.d all other power mun m r.i.n vj. f, li. in thr. "xccutive branch, which i hrg d w.th th- ri lii.' i'im i, ot thr. law jhr. protection of the state1 propi,rt. ar.o it. !..( .rg ti r tin in .,1:1: wrifarr arid peace of the propb. In order to p norm tin mui rxiciitive. functions, the ch:ei ex. ut; ill i.r , d trir. ,is aistar.-i--. ot rnary agents, officers, the thn.r tn-c- uts ol nov :rrh and mlnir-t- -- :- ). One of the functions ot tlir. fvr.ai.u paritm.nt is the promulgation of education of the pcopl under lav"; pavsnlby the legislative department. Utah Co'dt Annotated 19.u, Sicti..nr. 2. 63-26- -2, .'7-4-- 3, 63-5-- 2, 63-7-- 4, 73-10- -2. By Chapter 138, Laws of Utah 1969, the constitutionality of which in now is part questioned, the State Board of Higher Education is charged with the executive responsibility of carrying out fie l.tw as enacted. The legislature has performed .ill of its function in providing the law and the furd by which the will of the people through the various legislators and senator! . i I t |