Show WENNER VS SMITH A A decision in divor of tho plaintiff is ELPS ACTION SUPPORTED judgment for fourteen hundred dollars appeal will bo taken yesterday in the third district court judge zane rendered a decision in the case of winner vs smith N J wenner an appointee of the governor sued edias smith a former probate judge for salt lake county to recover 1400 ake amount of fees received by the lattur during tho eight months the plaintiff claims ho should have been in office the whole of the points raised are decided in favor of the plaintiff and governor murray audgo zane opened by calling attention to alie edmunds law passed march 2 1882 providing for the appointment of the five united stairs commissioners and vacating all the election ollices in alio territory in august the attention of congress was called to the fact that the commissioners had not been appointed in time for the election on the first monday in which nut therefore be held under these congress passed i ho provision authorizing alie governor to fill vacancies caused by a failure to elect in consequence of the act in reference to bigamy etc under his law the governor appointed tenner and he question is han tho governor the power to do so under the plaintiff claims that tic hail while atio defendant insists he had only to fill vacancies ind there was no vacancy the eglit of authorities would seem to Q on the general provision that the governor could only appoint when u vacancy actually occurred this language of congress is coupled with other words with which it must be constructed and also with reference to alie act of march d 1882 the authorized alio governor to fill vacancies which may arise uy to elect in bonso conso of the act of 1882 it did nor rive authority to fill all vara cies but only those resulting roni a failure to elect in case an election was consequence of the act of march 22 some light may be thrown on this act by the general intent of the law to prevent polygamy poly eamy the main object of the law wag a ablow at eamy this was evident as it prevented p from eit lira on juries or aven believers in from being eligible elip ible for or holdup any ot puh under tho united sta es rilo intention was to ilu them from holding otele it waa reasonable to suppose that the law malting er understood that persons were in in utah or the act would be aimless aalthe officers elective in august 1882 held under the same provision congress must be to know alie 1 iw as this waa required of common people and they bad passed it the president dad approved of it and if the defendants correct it would bo for no purpose whatever in view of ilia of tho law the general intent cf the act and tho fact that congress was attempting to provide a remedy for failure io hold an elec ion and for that they boucht soucht a remedy by riving the governor power to appoint they regarded the failure to elect as constituting sti a vacancy senator brown objected to thu legislation and called their attention to the holding over provision but they had paid no attention and passed the law the object 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 under which it was passed alio object baini to prevent migas from holdine office this pro vision was intended to provide for tho failure to elect the court was not disposed to hold whether a judicial ascertainment shall determine er or not a man is eligible to office from the fact that the defendant in this case was conceded tn be a poleg aigist nor would it inquire whether the governor made an investigation or not alifi governor biad considered that he had a rii ht to make the appointment and hia was as joany andini of fact the territorial supreme court had ruled on this and it is not the pro vinco of alie district court to overrule that decision in the light of the decisions and tho language of the ac athe holds that alie governor had tho power ti appoint alie question had hern relied eliat there were two issues in tho care but as all were questions of law they could bo tried together the defendant biad set up his og an offart against the fees received in this caw the plaintiff on september 1882 had received hia coin mis nion and demanded the ollice which was this refusal was in faith but the defendant had an surnce to say what alie law waa and if lie mistook the law he must tako alie alit plaintiff conail not be of the imo the of the chico lie ro cover but for thiS waa the period which the appointment continued and would be entitled to feea therefore amounting to 1400 and costs and in terest it will be remembered that probably two or three offices iu most every coulty in the territory were filleul as the iu case bad filled hi but it is paid that unless duclion has been already taken in these other basea it ia now too late to recover an appeal to the supreme co urt of the territory will be taken |