The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1882-10-12

vision IN the old statute which de-
clared that the auditor and
the treasurer shall hold Office
until thelr successors were
elected and qualified. Moreover, it
is IN the interest of the people that
every Office should have an incumb-
ent until some other person is quail
fed to take the office. The Legisla-
ture had made a special provision
that certain officers should not only
hold over until the next general
election, but until their successors
are elected for and qualified. Sup
posing. there was no such law as
that Of 1875, which makes the pro-
vision that officers shall hold over
until their successors are elected
and qualified, they would still hold
oyer de51tre in order that the public
lnteresEmay not suffer. Here num-
.herS OF authorities were read in
support Of this position and on this
basis he argped that as a rule the
Legislature Of this territory had
expressly provided that such hold
over should be IN force; to gay that
as to those offices fer Whichno such
provision had been made,
the Legislature meant the offices
should7 be vacant on a certain day.
would be attributing the height of
to the legislature. This
has been upon the sta
tute book for thirty years, and it
had never been questioned nor in
validated by any authority having
Jurisdiction. The court in pro-
ceeding for a mandamus cannot call
into question the validity of an act.
We have here in office, as appears
in the papers in this case, persons
who hold Office under a law the con-
stitutionality of which has never
been questioned; and every pre-
and reason is in favor Of
the validity of these acts, and the
theory is supported by able and
learned authority. Here the author
ties were ready l cite these author
tiles notas questioning the author
ity Of this court, but to inquire
whether under the usual rulings, it
is proper to declare q law unc0nSti-
tUtional, and to Gust an officer act
ing under it for the purpose. of MAX
ing a vacancy TO place another in
the position? The Office IS a creature
OF the legislature, which provides
the duties and exercise Of authority
and the authority.
In harmony with the policy of
congress, I maintain that the powers
of the Governor of a Territory to
make appointments, is always care
fully guarded and very limited,
where can they show any other ten
dency on the part Of congress? [
have read the letter Of the Judges of
this Territory to the Congress and I
find that it says nothing urging Con-
gress to give the Governor unlimi-
ted power. 1t merely suggests that
where cases of vacancy arise, the
Governor be given power. Congress
could have provided for election,
but for lack Of time, or for other
reasons, did not do so, but gave the
Governor power to fill all, vacancies
that occurred in certain ways. The
suggestions of your honors was that
provisions be made to have the va
cancies filled in the ordinary man
ner. Mr., Bayard, who assisted in
getting the provision up,
said the amendment was
intended to keep the Territory from
almost anarchy. 1t was also said
that most of the office-holders were
polygamists and that they went out
of Office under the Edmunds bill.
There was no intention to create an
archy. but only to prevent anarchy.
In the House, it was said that the
provision was not intended to take
office from any person who held one.
l refer to these things to show the
intention which thelDody hadpaSsing
the act in question mad. Mr.. Raw
Inns said:
At this juncture, [ cannot leave
this branch of the subject without
calling your honorS attention to a
celebrated article of recent publica-
ton. 1t will be unnecessary for me
to mention the authorship of that
to which | refer it will be necessary
only to name the title of this article,
which has occaSioned so much COM
menU, and the force of which has
already manifested itself. | refer
to the article entitled 1.-THE Main
Question The parent Of il is the
member of q distinguished legal
firm in this town. This elaborate
and able production, in respect to
the Interpretation OF this provision
(the Hoar amendmenU, may be said
10 abound, not only in syllogisms,
but IN EXPLANATIONS. Among the
syllogismS which [ found is
one in respect to the govern
ment reserving to itself the
power to make all the prin-
cipal appointments of officers in
the Territory. This government,
like Parliament-to further elabor-
ate this syllogism-possesses trans
|cendant, uncontrolled power in a
territory; or as Marshall has eX-
pressed it, do not mean the parent
Iof this production, but another
Marshall, no more learned or dis
tinguished, perhaps, than the gentle
man engaged in this case in refer
ing to the powers of the federal gov
eminent, has RETAINED to itself
the power to give a functionary
known as the Governor of Utah,
this great and transcendent author