Show GENERAL gacs nu important iu he garil to territorial offices it is generally understood by tho public of this territory says the sveue that has been for years past a conflict of opinion to whether certain territorial officers who have been for almost thirty years elected by the people properly elective or applins live governor murray has claimed that the ath section of the organic act authorized him to appoint them inasmuch it says he shall nominate and by and with the ad vices and consent of the legislative council appoint officers not herein otherwise provided for while others claimed that the territorial rit orial statutes providing for the election of these officers by the people were valid the utah commissioners who of course have no more authority in tho matter than so many private citizens also ruled in favor of tho governors views and they having control of the elections the people were prevented from electing these officers as they had formerly done the governor presumed to appoint men to fill these offices without however asking the advice or con jentof the legislative council but as the legislature failed to ratify his nominations and the parties filling these offices and who had been elected so to do until their successors in office elected and qualified refused to give them up to alio governors ethey rea main as they were it will be seen by what follows that three of the utah commissioners have made ap through the secretary of the interior for a ruling on this question from the department tf J ustice in and that attorney general garland has decided that the offices of alie territorial superintendent of district schools auditor of public accounts and territorial treasurer should be filled by nomination of the gober nor by and with the advice and consent of the legislative council Ce uncil as the organic act provides and that the territorial statutes providing the election of these officers by the people arc in conflict with it and therefore not valid it will he een whether the governor will nominate such men to fill these offices as the legislative council can should he fail to do so the present incumbents will certainly continue to hold over j i following ia the correspondence referred to LETTER filom TUB commission altice OF II 11 commission SALT LAKE 1 J sir for several years it las o 0 disputed question whether certain territorial officers in utah are to be appointed by the governor with the assent of the legislative council under alio organic act of september 9 1850 section 7 or to be chosen by thy people at their general elections under certain acts of tho legislative assembly the referred to are territorial superintendent of district school territorial auditor of public territorial treasurer and commissioner to locate university lands in preparing for the general election to be held in august of tills year it is important for us ivell as the election officers appointed by us under the edmunds act to have this question settled and we therefore address you this corn with the request eliat the question may be referred to the arable attorney generel of tho united states the governor for some years past has nominated these officers to abu legislative council arid they refus ing to power of appoint anent decline to give their assent alleged ground thai such ol ficera should bo elected by the poo pie at their general election ader tho territorial statutes our attention having boen called to this question wo concluded with considerable doubt and hesitation that the said are to bo appointed by tho governor in order to facilitate the examina tion by the attorney we refer to tho following statutes and authorities pro and con 1 11 favin OP ELECTION BY aliis compiled lawe of utah sec 44 page 90 chapter Cl apter 11 bec 4 session L L of butali 1878 page 27 compiled laws of utah sec payo chapter 1 9 sec 11 1 1 page 31 of session laws of utah A D 1880 alio oft liis 14 is identical with of sec supra act of congress of february 21 vol 10 U statutes at large compiled laws of utah sec page sec G of organic act compiled L L of utah pages 30 38 sec 1851 compiled 38 0 o a 7 iwa of utah page 30 sec 1857 compiled laws of utah i tho compiled lawa of utah A D 1870 and the season acts of atah are fri tb of theAtY orny general left 1 ago by afao ao of the territorial acts rely upon abbate ment made by the chief justice in 13 wallace which Is found on page second paragraph from alie top per bonira it is claimed other side that the presumption of approval by congress of a territorial act by reason of non action and lapse of time does not prevail in cae of a direct conflict between the act of con cress and alie act of alie territorial legislative assembly bo added thattie th atthe office of commissioner to locate the university lands appears to stand on a different footing from alie others by reason of alie fact that of con press referred to was approved in 1855 five years after the date of the organic act we have thus to state the question fully and impartially aart wo respectfully request an early opinion from the attorney general byry respectfully yours A B G L GoD niKY R G to the honorable the secretary of the interior washington D C LETTER attorney department OF JUSTICE washington june L secretary of te interior sir at the instance of the utah commission the honorable muldrow acting secretary of the interior in a letter dated the ultimo requested my opinion upon tho following question whether certain territorial officers in atah namely superintendent of district schools auditor of public accounts Treasure sand to locate universal lands should be appointed by the governor with alie assent of the legislative council or chosen by the people at their general elections for convenience so much of the question relates to the commissioners will be considered separately as the appointment or election of those officers appears to be controlled by a provision not to the others upon examination of the statutes enacted by the territorial legisla Le gisia ture it appears that the superintendent auditor and treasurer are thereby required to be elected biennially at tho general election by the quail tied voters of the territory sec laws of utah 1876 of feb 22 1878 chap 11 laws of session p 27 the organic law however see section 7 of the act of congress of sept chap 51 declares that shall nominate and by and with the advice and consent of the legislative council appoint all officers not herein otherwise provided for they as the three territorial officers last mentioned and not therein otherwise provided for a direct conflict manifestly exists between alie statutes of the territorial legislature above referred to and the organic law the organic law of a territory takes the place of a constitution as alie fundamental law of a local government ern ment jt is obligatory on and binds the territorial authorities nai bank vs county of yankton US any act of the territorial legislature inconsistent be held void fedis vs 20 wall may undoubtedly make void of the territorial legislature valid and valid act void US supra buffor the exercise of this power some legislative act on its part having that would be necessary certainly butir ing cin be favor of alie validity of a territorial statute which conflicts with an express provision of the organic law of tho territory from the mere fact that congress lias not disapproved it it follows that the statutes of utah in far as they of district schools auditor of public accounts and treasurer of the territory tobe being contrary to the provision of the organic law hereinbefore mentioned are a nullity and that offices should be appointed in conformity to eliat provision A similar conclusion was readied by the supreme court of eliat territory in to the territorial marshal who by an act of alie Le gislas ture of the territory was required to be elected by a joint vote of both houses thereof the court bield the act to be inconsistent with the provision of the organic law above adverted to and therefore void see ex parte dim can etc 1 utah rep 81 in regard to the cheso officers are by the territorial statutes to bo elected annual y by the qualified voters at the election corn laws of utah 1870 p by the sd section of the act of congress af feb 21 chap a certain quantity of land was reserved for the establishment of a university to bo selected under the direction of the legislature etc tho of the territory provided for the ses lection of chis land by creating a board of commissioners to consist of three men elected as above and do evolving upon such board the duty of selecting t lie land I 1 am of tha opinion that alie territorial legislature by virtue act was invested with full power over the selection of the land including the establishment of alio agency by which such selection was to be accomplished it was at liberty to devolve alie duty of select ing of already created or tho appointment of persons for that purpose by such officers or by alie governor or otherwise vido the instrumentality for carrying its will upon the subject into the commissioners in question are not therefore to be regarded as witti in lie operation of the above mentioned provision of the organic law and their election in the wanner prescribed by abo territorial statute proper ia m eirv ery respectfully A II 11 GARLAND attorney general |