Salt Lake evening Democrat. [volume] (Salt Lake City, Utah) 1885-1887, 1886-01-16

PENDANT was elected to the office of Probate
Judge of Salt Lake county, and shortly after
entered upon the duties of his office. By the
law just quoted, the successor of the defend
ant would have been elected at the election
on the first Monday in August, 1882, had
that election been held. Had such a sue
cessor been elected, there is no question but
what he would have been entitled to the
office by filing the bond and oath of office.
As we have seen, that election was not held,
because Congress, by section 8 of the Ed
munds Act, vacated all elective offices in the
Territory, and those appointed by the Pres
ident under the provisions of that section
had not qualified and we're not in position
to conduct the election on the day provided
by the statutes of the Territory. The con-
dition of affairs was brought to the atten-
ton of Congress, and il passed the law au-
thorizing the Governor to make appoint
ments. Vol. ID, Cong. Record, part Z, PIP.
677S 6796, 6S91, 69il, 69S1, 69S2.
THE GOVERNORS AUTHORITY.
Until the passage of this law, the Cover
nor had no authority to appoint to office,
except in certain particular cases. All the
power he had to make the appointment of
the defendant was derived from this law.
1t is our view that this law must be
construed to substitute the appointment
by the Governor for the election by the
voters of the county. In this view we think
there can be no question but what vacancy
existed at the time the plaintiff was
appointed. The law certainly was intended
for some purpose, and should be construed
so as to effect that purpose. Under the con-
structiori asked by the defendant, the law
becomes dead letter. There was not, if
what he contends is correct an Office to
which it could apply. Congress must be
presumed to have known, when it passed
the law in question, the provisions of the
Territorial laws regarding elections and the
tenure of office, and that successors to most
of the officials in the Territory would have
been elected on the first Monday in August,
1882. Knowing this, and that the election
could not be held in consequence of the pro-
visions of its earlier act, in order to prevent
any confusion that might arise because of
this failure to elect successors to the then
incumbents, it passed the Hoar amendment,
authorizing the Governor to appoint in lieu
of election.
CONSTITUTING THE STATUTE.
When, as in this case, the words of the
statute are not explicit, the intention
is to be collected from the context
from the occasion and necessity for the
law, from the mischief felt, and the object
and remedy in view, and the intention to be
taken or performed according to what is
consonant to reason and good discretion.
Dwarris on Statutes, ETC., 1874, note 49, What
was the occasion for the passage of the law
in question? Plainly the failure of the
August election. What was the mischief
felt? The fear that confusion would arise
from the failure of the election. What was
the object and remedy in view? The object
was to prevent confusion; the remedy the
appointment of officers to succeed the in
cumbents, in the same manner as though
the election had been held.
SMITH PoLYGANIrsT.
The defendant was polygamist at the
time of the appointment of the plaintiff and
had been such for a long time prior thereto.
Murphy v. Ramsey, ia, U. s. Al. This fact
alone was sufficient to make the office held
by him vacant, without reference to the
Hoar amendment. The eighth section of
the Edmunds act expressly provides that no
polygamist, bigamist, or any person cohabit-
ing with more than one woman, shall
be entitled to vote at any election or
be eligible for election or appointment, or
be entitled to hold any office n in or
under any Territory of the United States.
This law stands in relation to the Terrific
ries as constitutional provision. Congress
has supreme control of all the Territories,
and the laws enacted by Congress for their
government are and must be supreme, any
law of Territory to the contrary notwith-
standing. National Bank vs.. County of
Yankton, 1O1 U. s. 20; Ferris VS.. Higley, 20
Wal.375; Organic Act, Sec. 6. There can be
no doubt but what Congress, by the Edmunds
Act, intended to vacate all offices held by
polygamists, and to disqualify all such per-
sons from holding office, without reference
to whether they had committed the crime of
polygamy as described and defined in the
first section of the Act. Congress knew at
the time of the passage of this law, and this
Court must take judicial notice of the fact,
that polygamy had existed in this Territory.
THE INTENT OF THE LAW.
For years Congress had been endeavoring
to suppress it, by denouncing it rs a crime
to be punished by severe penalties.
Notwithstanding the laws, the practice
had continued. Our judicial annals
show, that up to the time of the passage of
the Edmunds act, there had been but one or
two convictions. Taking into consideration
the failure of the laws to effect the purpose
for which they were passed, it seems to us
that very slight examination of the Ed
munds act, and of the causes which led to
its adoption, will satisfy everyone that the
intention of Congress was to provide two
fold remedy, the one criminal and the other
civil. The act plainly said that polygamists
shall no longer hold office and receive honors
ana emoluments from the hands of the GOV
ernment whose laws they violate and defy.
We also think that when the Governor ap-
pointed and commissioned the plaintiff that
1t gave him pri,nd Jacie title to the Office 1t
imposed upon anyone contesting the burden
of showing better title. People VS.. Head,
20 ILL.,, 287. In establishing better title the
qualifications of the defendants would have
been in issue, the question would have
arisen whether he was or was not polyg-
amist.
The question as to whether vacancy ex
listed IN the office, which we have just con-
sldered, was squarely before this court in
the case of Kimball v. Richards, decided
February 10, 1888. No opinion was filed, but
the issue upon the pleadings and the judg-
ment of the court shows that the court then
held that the question should be answered
as we have answered it.
WHERE THE DEFENDANT STANDS.
III. The action was properly brought. II
mas been held that the title to an office NAV
be determined in an action by the claimant
thereof, for money had and received, to re-
cover the fees from a wrongful intruder
Glascock v. Lyons, 20 Ind. L; Allen v. Nc
~ h.ean, sum. 3l7 United States v. Addison,
~ How. ia; Dolan " Mayor, 6S N. Y. pa
The defendant usurped the office. He wasa
wrong-doer from the moment he was mott
ned that his successor had been appointed
and had qualified. An action lies against
person who has usurped an office and re-
c Gel Its known and accustomed fees. /
Unity Fl. 400; l Selwin Nisi Prius, 81; Bow
ter Y. Dodworth 6 L. II. GSl; Powell v. Mil
bank Il. *. 399; Sadlerv Evans, Burrow
1854; Tightly v. Clouton, / Taunton ia.
Howard y. Wood Lev. 245; Allen v. Mexican
I Sum. BIZ; Dolan v. Mayor, 68 N. Y. pa
we DO not think that in law the defendant
promptly notified of the appointment of his
successor, but he declined to yield up the
office. He must bear the consequences of
his own mistake. "When one of two inno-
cent men must suffer, he through whom il
occurred must bear the loss" The defend
ant IN the eye OF the law was wrong-doer.
The title of the plaintiff to the office in
question was set forth in the complaint as
well as his claim for the fees of the Office.
Inc defendant did not demur to the com
plant but answered and denied each alleoa-
ton. II the defendant is right, then there