Show MURRAYS VICTORY hudso zano decides in favor the governors appointees i rn STATUTE DECLARED clayton and jack da appeal allowed 1 l 10 f rooming judge zane delivered his decision iu the con tetteh office cases the decision is as follows jlia istuk caso of the people of the territory of utah on thoro lation of win united states district attorney rde plaintiff vs nephi W cl iytol do i this is a proceeding under chap 5 page odthe statutes of 1884 the first section of describes tuo cassea 61 ahe wrongs for diio chapt furnishes the remedy is as follows an action may in the name of this Territory 1 against any person who usurps holds or exercises any office or franchise real or pro tended within this territory without authority of law such action hall be brought by alo prosecuting prose cutine attorney of the proper county alien the office or franchise relates to a county precinct or city and when or franchise relates to the territory by the united states district attorney and it shall bo lie duty of the proper officer upon proper li owin to bring euch action whenever he has reason to believe that such office or franchise has been usurped intruded into held or exercised authority of law this statute has changed the form respect to right and for which a writ of quo uw was formerly the remedy but the chance is held of au as simply as to the form not as to tle substance the position of tb and the rules of evidence and the presumption of law remain the samo ft into the statute liero in hie territory is the bamo as those in new york california or other states in iho rase of the people on the relation of judson that cier iti iho 55 ney york page 23 the j the forms chanced chan sed but the position of the defendant fen dant wild the rules of evidence and the presumptions of law and fact are the same as in llie proceeding bv writ or information for which the cremedy by action was substituted the people are hero the ultimate lourra of the right to holda public now a heretofore when a person exorcising an altice s challenged tin a direct pro ce edine by alia the defendant must establish his title or will bo rendered against him it results from cheso con ider actions that the defendant in order to have judgment in his favor liaa required to prove that he was d to loftice of mayor artlie election held in april 1872 tho office was not in this action of his right so that abo position of the parties and the rules of evidence and the presumptions of law remain tho hame aa they were when the writ of quo was enforced or oliero U la now enforced section of fligh on extraordinary legal remedies is as follows as regards the question of intrusion into or usurpation of tho ohice to test an information is filed it ja regarded us to allebe generally that tho respondent i in possession of tho without lawful authority and in case the pleadings ara defective in this respect the defeat is one which should bota keu ad va 11 tape of by special demurrer section where the proceeding aro instituted for ahe purpose of testing ahe title to an onica the proper aqui sc for f cither to or to justify if ho declaims all right to the office the people anre at once entitled to judgement Jud gement if upon alic other hand the respondent freeks to justify lie must act out title specially nd and it o that lie alleges ho ans duy elected or appointed to the lie ut ata tc how ho was a and if appointed to nil a vacancy caused by removal of tho former of as well affo thu ip nent must ilio people am hot bound ati anu face ot alg anni chent aut f tle frinc uie ollace the arc entitled to unless therefore nic respondent dia to the odice and dc bielia to ita lie such facca 43 inest him fully with the legal lie is considered as a mere usurper from this ad U a of ay iy clabe of authority it appears that the burden pj proof and of allegation as well Is upon the in a of athla to show that lie hiti to the ot otheto ceto show ills title the respondent in tah demurred to aib and alo iu etlou I 1 1 I ahli complaint chent as against bilm in af llie referred f d of til anca of aad or fifie od in lie tor tion IB so far a it relates to tho rea the of the of utah by william II 11 dackson unit cd district attorney fur said territory vom naina of tho SW do fen daut and blat 10 wit jn ho year A D llie ad de Jl ayton did usurp and intrude in trudo into the auice of auditor of public accounts in aud lor tho mid territory of utah j and v ti unreal ever since that lime he has and does baill hold and exercise tho functions of said emco omco without authority of law abla so far as it relates to the defendant is substantially in tho terms of alio statute it seta forth hat in the year 1879 the defendant and intruded into tho or Auditor bof public accounts of tho territory of utah and further it elates that since that time he lias and docs still hold and exercise the functions of eaul office without authority of law in many criminal proceedings it is held that tho is described if with tho addition of dates and names and venue the indictment follows as in tho of tho statute theio it r i slat iry offense and tho in tho statute it ia insisted leiai is a detate acut of 3 oad not of facts and the principal ion is to the concluding portion of the complaint which eta ieta i up the n n complained of the complaint 4 lloldi and exercise tho functions of said without authority of law there foi it would have been more specific if the patty had stated without appointment assuming the plaintiff m wv of alio law to bo correct or without due appointment but is only one way according to the view of the law which tho party could havo lawfully come into alio onica and that would be by nomina tion and confirmation by the ferrii I 1 council as the party came in iha allegation here in alfe year and it ia alleged that I 1 that was wrongful and that lie wrong fully continues to hold still in the by virtue of alia wrongful usurpation in complaints of this character when the burden Is upon alie defendant bogli of allegation and to show lih right his eglit to alio is challenged by alic people it H not necessary to show to point out with ecat particularity alie acts which constitute the wrongful usurpation or the wrongful hold ing of tho till iu alic light of the calif enla decisions without referring to then I 1 am disposed to ibold as aal I 1 am disposed to bold that it 1 t on principle in a ase of tills it alie respondent spon dent holds the appointment it is something that lie hi in liis possession anait s not therefore to state with any degree of particularly and eliat appointment because in liis it i to deny his legal right and to challenge liia right in thai way and then it is his duty to justify and show his there are allegations in complaint but aliey relate to alio plaintiff pratt these under the authorities I 1 ani disposed to hold are not now in question the therefore arisen Is alio mcp justified do alio facts stated in hit answer lias si legal title to this on his statements are as follows cring answering the complaint plain till and for a mcp pcp crate answer thereto defendant allege that on the first day of august lie was a citizen united states over the age of 21 years and lie was then and and at all tinier since hai been and now is eligible under the office in utah territory that an election by tho people of utah territory was held on tho second monday ha august ISSO that at s iid time said defendant was the incumbent in eaid office hachik been elected to said olace theretofore that on said last named date defendant was azain elected by the of said territory to be auditor of public accounts for alio territory of utah and that afterwards in september tho governor of tho territory under his hand and bealh aed to the defendant R coin ftc alaid auditor which was signed by the secretary of said territory Thi iscaro the allegations BO far 33 it is necessary to abato them hia right therefore depends upon tho election which lie alleges occurred on the let day of august BO for aa ia any issue made in tho tion and if thul objection waa valid then the was valid if tho election aa invalid then the commission was authority the election was held under alie provisions of chap H of tho statutes of ly commencing on page 27 the latter clause of BOCI ion 4 ter provides tho territorial treasurer and auditor of public accounts ahall bf hereafter elected by thanual cj voters nt tho general election in august 1878 and biennially thereafter and the shall hold respective offices and perform the ducios of ho same the next general clo atlon and until their successors shall be elected and qualified abia law ana approved february two years I 1 believe before tho election occurred at which alio re spon dent to havo been elected this idso p ty be considered with chapter 1 t antea of tho compiled la vi s of utah of that that 0 ap auditor of public A cco 11 nu shall ho elected by the joint voto of both of tho assembly tean or allice shall be your years and until arc elected arid nicil unless booner by it aaers thal provides for tho electron elect lon by voto of both of the houses of bo assembly in this chapter hero are 0 of fand it not necessary to read ro latizis to and tho ia by the frinc U hy iru tho and ills 2 for biml and taking tho oath e bertlon 5 fortso laking tho oath of onice bew tion 0 to ohp duty of tho aiau tor ami iligo of and there aro a number which relate to lits it Is that if this law 11 i invalid thru ru no bubli s oh cag of cpr yuu 4 tr f W 4 hint it is impossible to hold that tho portion of tho statute which relates to tho officer and establishes the act can exist without the provisions relating to his election rhia had in view two purposes one ani alio establishment of the office or offices mentioned and tho other was alie mode of selecting alio officer and the description af alic functions and duties of alio officer alio huleis ru leis where i provision of a statute COBS provisions essential to the purpose and one of these provisions win valvil all of the provisions fail because it is to be presumed that alio legislature intended all to stand together and it would bo impossible to into the statutes pur the pro visions relating to eliat purpose the of auditor is one thing and the officer is the office in the legal sense and as I 1 believe it was once stated by cleef justice marshal is immortal eliat if to say it dont upon iho life of any it whilo the come and go and the office is one thing and alie officer another the office may lie established without providing for alic mode 0 filling it the offitt may be created and it may be filled by election or by alic legislative assembly or by alie people of the territory or by appointment of the governor if the law so provides or by appointment of alio governor by and the advice and consent of alic council or assembly 1 am disposed to hold that these provisions purposes anre ao separate and distinct eliat alie law may be bield invalid so far as it related to lir hie office ind the selection of tho mill cr and remain valid PO far as it establishes alic office alic legislature unquestionably so understood it because they refer to these respective offices in he statutes of and they change tho mode of filling alie office instead of alie office being as it iv s before they provide that the treasurer and auditor shall bo elected by qualified voters at alie election of august 1878 and biennially thereafter the question therefore comes at last aal it is lie question in tills case as to whether this law of 1878 and lie of 1852 are valid these statutes are valid if aliey were within the legislative power of the territorial legislature the warrant for the of the powers of alin territorial legislature is found in alic organic act of the territory or tho acts of congress to the territory which constitute the organic act section C on page 30 of alic statutes provider anil bo it further enacted that ho legislative power of said territory extend to nil rightful subjects of legislation consistent with the constitution oatlie united states and the provisions of tah act that was alic power ial of course as it w u then conferred according to alie interpretation terp bof and of alio supreme court of the united states it must not only be consistent with alio constitution of alio united states and alic provisions of this act but also i consistent euch other acts as I 1 congress may adopt alic question j is whether the statute providing for the election by the people of tho auditor is consistent with the act section 7 provides and be it enacted that all township district and county ofa fibers not herein otherwise provided for shall bo appointed or elected as the case be in such manner as shall bo provided by tho governor and legislative assembly of the territory of utah that is the first blanso of tho sec tion and it relates to township disi tract and county the next clause js i the governor shall by and with tho advice and consent of the legislative council appoint all not herein otherwise provided or that clause seems to be clear and plain aa ahe former one is it is a statement ia plain language that the governor shall nominate and by and ilie advice and consent of the legislative council appoint all not otherwise provided fur the hrat clause does noti provide for the appointment or election of territorial and denoo by eliat provision they aro not provided far jt ia that the list clause ef the section renders ilia doubtful as to the inoda in which the be selected that clause is and in the airet instance the governor alone may appoint all eaid officers who shall hold their copcea until the end of the girat of tho ird abiah lay districts for roomi bers of the council fand house of rep ind all other officers that relates to the appointment in the first instance before the terri government through the legislature has provided the mode selection still hero plit bo some dini cultY in conceiving and there bouhl LQ room fur controversy as to he c audition ion to which this clause is applicable it certainly cabi not apply to the appointment or election of any stich except those who raj appointed in tho arst n stance and wh 0 would hold their cauca antl 10 lo end of HB alra I 1 nm tobey blat eliat ohp clauses of thia of doubtful on aa to choso two iusti I 1 fan bet no room for it ia i aneio matter of interpretation aud taking these two sect ions then together it would eceil that the action of the territorial in this law was without authority it did bot to this subject that ia the subject of appointing a auditor to tho Oo vornor by and the advice and consent of tho legislative council Cou acil it i that this statute baa been in by congimi I 1 it algo territorial legisla Le nisla turo and tn it and there fore had it if the territa ria biad not the authority to anso abo law in the tarot it had W to daucy fi abib A body may ratify an act chih they have dons without authority when they had the authority to do the net originally when i legislative body has authority to paa a law if in consequence of boine defect in their proceedings in their action the law is invalid they may afterwards ratify it cut in this caso lie territorial legislature biad not the authority originally this is not like the case precisely where a legislative body passes a law which they leavo a right to pass and in consequence of bome defect the law is invalid hero efio congress 0 the united states did dot pass this act providing for this election they granted to the territory certain powers specified powers it is true that the powers of the legislature arro described in general terms but the territory is a government of enumerated and delegated powers and can only exercise those which are given expressly or are necessary to alie exercise of such express powers it is said that it is the duty of the territorial legislature the secretary of the territory to report these laws to congress all act of the territorial legislature |