Salt Lake evening Democrat. [volume] (Salt Lake City, Utah) 1885-1887, 1885-10-29
WENNER WINS.
Judge Zane Decides That the Gov.
ernOr's Appointments Stand
Good;
That the H0ar Amendment Was Il
Exclude Polygamists from Office;
And That the Plaintiff Is Entitled to
Recover for Eight Months
Salary.

The decision in the case of U. ]. Wen
ner VS.. ex-Probate Judge Elias Smith was
listened to this morning in the Third Dis
trict Court.
Judge Zane stated that on the 22d Of
March, 1882, law of Congress was
passed providing for Commission The
Commission not being appointed in time
to appoint the officers for the election on
the first Monday in August, 1882, it could
not be held under the Edmunds law, and
under those circumstances Congress
passed the Hoar amendment, the latter
clause of which provides that the Gov
ernor of Utah shall appoint officers to fill
vacancies which were caused by reason
of the failure to elect on the first Monday
of August, 1882.
Under this law the Governor ap-
pointed the plaintiff, and the question is,
had the governor the power to do so
under this law. The plaintiffs counsel
insists that he had.
THIS LAW EMPOWERED THE GOVERNOR
With the right to appoint the officers if
the election was not held as provided,
while the counsel for the defense claim
that the Governor had only power to
appoint when there is vacancy, and
none existed in this case.
THE QUESTION EMBODIED
In the act of March 22d, 1882, is whether
the Intention was to give power to ap-
point in case the election was prevented
on that day.
The general intent as expressed and in
fact all others being secondary to it, was
to prevent polygamists from holding
office.
IT WAS A BLOW AT POLYGAMY.
No candid man could read the act with
out coming to that conclusion. The OBJ
ject of the law was to punish all persons
guilty of polygamy and unlawful cohabi-
tation, and to prevent all such from sit
ting on juries and holding offices of
public trust. 1t is reasonable to be-
lieve that Congress knew such per-
sons were in power and would
go in power, and if that were not SO, the
Act was an aimless one. Commonly,
people are presumed to know what the
law is Congress passed the Act of
March 22d, 1882, which was approved by
the President. In the forming of this
Act Congress was attempting to provide
a remedy for the failure to hold the cleo
ton which occurs the first Monday in Au-
gust. In view of the failure to appoint
the Commission in time to appoint cleo
ton officers, the government sought to
remedy the defect by authorizing the
Governor to fill all such offices declared
vacant on account of the people failing to
elect as provided.
As | conceive this case here,
THE INCUMBENT WAS A PoLYGANusT
Before and at the time of this act.
Another question exists as to whether
the title to this Office can be tried and is
collateral to the main question. 1t seems
that Congress presumed that after eight
months the legislators of the Territory
would provide for the election of officers.
The plaintiff will be entitled to but 81 400,
for which amount judgment is rendered,
with interest at 10 per cent. from the
time sof demand, to-wit, August 9th,
1884.
THE SALIENT POINTS OF THE DECISION
WERE:
First-That the Edmunds act and Hoar
amendment created vacancy which the
Governor was authorized and empowered
to fill. Second-That the title to the
office and right to the fees and emolu-
ments could be tried in the same action.
Third-That the unlawful incumbent was
not entitled to any remuneration for the
value OF his services while usurping the
office; and that the plaintiff could re-
cover under the statute for but eight
months.
This opinion is an endorsement of The
Governors action in making the appoint
ments OF three years ago, and settles
law about which there was much discus
sion and cavil.