The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1884-08-01
4 Lawyers OPINION.
What the District Attorney
Thinks of EIecting Terri
torial officers.
ga the Utah Commission:

tov;aI Treasurer, Auditor Of Public
Aceonnt4. Superintendent OF District
schools and Commissioners 70 locate
University Lande, to be filed oy
election by the people. or sbou q Tue
Governor nominate ard by enc
with the advice of the Legislative
Council, appoint thereto!
Gecond-If net elective, shoulu
the ballot Of any other eleetor cast
at tia general election for county
and nfecineU off ,es be rejected anu
held invalid in toto became It con-
tains. bestdes The names OF candI-
dates for such county and precincg
Offices, names of persons 10 ill sA!d
Territorial Offices?
The answer 10 the fist guostl2n
turns upon the proper iuterp retatIon
Of the Orgsn'c act, she language of
which is, to my mind, 80 plain as to
leave no room fer construction.
That act provides for the election by
the people Of the members Of the
Legislative Assembly, and for the
sppoin ment by the President OF a
Governor, ecretary, Chief Justice
and AssO .iate Justices, District
Attorney and United States Mar
shal; it alsO provides that all town.
ship, district and county officers not
therein otherwise provided for shall
be appointed or elected rs the case
may be, in such manner as may be
provided by the Governor and Leg
islative Assembly of The Territory,
and further that Hthe Governor
shall nominate,and by snd with the
advice of the Legislative Council,
all officers not herein otherwise pro-
vided for.
The Office of Territorial Auditor.
for instance, is provided for in
the Organic Act, neither is 1t a
township, district or county Office;
under the plain letter Of the act,
then. it is to be oiled by appoint
ment OF the Governor, by and with
the advice and 5nsent OF the Legis-
lstive Council.
II is often urged that inaomuch
as the Territorial L-gisls ;ure pro-
vided go long ago as 1862 that Ger
tain of these offices sd uld i 9 filed
by joint vote Of the Legislative As
sembly and subsequently that theg
should be filed by election by the
people ard inasmuch as these pro-
visions Of the Territorial atatUtes
have alwsys been scted NJ as
valid, Ttth9ut any protest on the
part OF @ Jngress, they have Iece. wed
tbs approval OF Congress by impli-
cation. The cases of Clinton vs..
Engelbrecht, Is Wsll., and snow VS..
United Statee, IS Wall, are relied
upJn IS sustaining this position.
In neither OF these cases was the
question, az to the mode Of filing
Territorial offices, which was not
provided fer in the Organic Act, in
V0lved, nor was it in Q Their case
passed upon by the court. In the
frst case it is true the point was
made by counsel, bat not being
properly before the court, it was
not considered, and is disposed OF IN
these words: Nor do we think
the other o lection sound, viz That
the required participation of the
Territorial Marshal in summoning
jurors inValidated his acts, because
he was elected by the Legislature,
and not appointed by tho Governor.
He acted as Territorial Marshal
uader color Of authority, and if he
was not legally such, his acts csn-
not be questioned indirectly. "The
doctrine Of approval by Congress Of
Territorial legislation, by tacit
recognition, cannot be carried fur-
Their than this, to wit: En-
setm9nts OF a Territorial L. gis-
iature which are not in
conflict with a positive CJngres-
sional statute, are to be taken az
approved by C0Dgre 3 unless affirm
atlvely dlsapIrOTed. Hence, as to
such enaetments, the silence of the
national legislature upon the subject
for reasonable time warrants US in
assuming the approval of Congress.
The case is different, however,
when the local legislature exceeds
the sutho ity ven. Congress is the
source of its lover. Created by The
federal statute, it has 10 authority
except that granted. When q pro-
hl0iton exists, its acts in contTa~
Yentlon thereof are usurpations, and
there is no necessity for further ac-
ton by the supreme authority. In
tuch case Congress has spoken aud
disapproved in advance. Would it
0e contended that the failure Of
Congress to affi!mstiYely disapprove
Oh an act of The Titan Legislature
reiatlye to church interpretations
and the requirement of real pros
serty thsrehy, passe in open de-
nance OF en- existing feLeral sta
Sote, y Go he taken as approved
oy Congress simply because
Congress fails to afirnat yejy dissp.
prove II? Certainly not. Congress
having Srale1 its disenproyai bv
n rklng the i'm tat ora of over.
nothing remains but fer tie courts
10 enforce thu controlling, tire su-
pFeme law. In such case the Terri
tofisi law IS void al i7aitio and the
silence Of Congress cannot reyiyify.
Were there never was an existence.
In such case nothing short OF an ex-
press approval by Congress can give
sheet 10 the Territorial statute.
o7e Ferris vs.. Higley, 20 Wall.
AS to the second question, an of
otinlon that the ballot should not be
rejected III toto. but that it sho,tld