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

August was also the day for the general cleo
ton. Compiled Laws 1876, section Is.
On the first Monday in August 1880, the de-
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 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 were 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 it passed the law au-
thorizing the Governor to make appoint
ments. Vol. 10, Cong. Record, part Z. PIP.
CTS. 6796, 6S91, gal, 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 counta.1n 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
struction 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 Ct 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 |
lncumbents, it passed the Hoar amendment,
authorizing the Governor to appoint in lieu
of election.
CONSERVING 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
IL.
Dwarris on Statutes, etc., 1874, note IL. 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 PoLYGAMIsT.
time of the appointment of the plaintiff and
had been such for long time prior thereto.
Murphy v. Ramsey, LA, q. S. Il. 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, OF {
be entitled to hold any Office in or s
under any Territory of the United States. :
This law stands in relation to the Terrific ::
ries as a constitutional provision. Congress l
has supreme control of all the Territories, I
and the laws enacted by Congress for their (
government are and must be supreme, any !
aw of Territory to the contrary notwith-
standing. National Bank vs.. County of
Yankton, 101 u. S. 20; Ferris vs. Hioley, 20
Wal. 375; Organic Act, Sec.6. There can be
10 doubt but what Congress, by the Edmunds I
act, intended to vacate all offices held by
ons from holding Office, without reference l
o whether they had committed the crime of n
,olygamy as described and defined in the +
!rst section of the Act. Congress knew at v
he time of the passage of this law, and this "
,ourt must take judicial notice of the fact, \
hat polygamy had existed in this Territory. !,
THE INTENT OF THE LAW. II
For years Congress had been endeavoring C
suppress it, by denouncing it as crime n
be punished by severe penalties. a
ad continued. Our judicial annals ST
how, that up to the time of the passage of a.
ne Edmunds act, there had been but one or is
NO convictions. Taking into consideration 81
ne failure of the laws to effect the purpose b.
u which they were passed, it seems to us 10
lat very slight examination of the Ed -,
lunds act, and of the causes which led to y.
adoption, will satisfy everyone that the III
ltention of Congress was to provide two re
I'D remedy, the one criminal and the other tn
VII. The act plainly said that polvgamists til
lall no longer hold Office and receive honors
ID emoluments from the hands of the gov
nment whose laws they violate and defy.
We also think that when the Governor an
gave him p'inG Jacie title to the office. It m
lposed upon anyone contesting the burden N
showing better title. People VS.. Head. 3.
LII, 287. In establishing better title the . :
affiliations of the defendants would have q:
en- In issue, the question would have
isen, whether he was or was not n nolvo- IN,
mist. o
The question as to whether a vacancy ex- st.
ed III the office, which we have just con- 1 ai
cred, was squarely before this court in n.
, case of Kimball V. Richards, decided
bruary 10, 1888. No opinion was filed. but Th
issue upon the pleadings and the judg- int
mt OF the court shows that the court then n
ID that the question should be answered ~ ~
we have answered it. Me
WHERE THE DEFENDANT STANDS, NE
l; ia the action was properly brought. 1t Wy
determined in an action by the claimant
reof, for money had and received, to re- We
er the fees from a wrongful intruder. Ri
'scock '. Lyons, 20 Ind. 1; Allen v. Nc
an, Sum. BIZ; United States " Addison. r
How: ia; Dolan v. Mayor, 68 N. Y. 274. T
defendant usurped the Office. He wasa Z
from the moment he was mott. 7
that his successor had been appointed I
mad qualified. An action lies against E
son who has usurped an Office and re- A
'ed Its known and accustomed fees or
tty Fl. 400; Selwin Nisi Prius, 81; Boy- Aoc
Y. Dodworth L. r. 6S1; Powell v. Mil gun
K y. Il: 1893; Sadier v. Evans. Burrow All
|; Tightly V. Clouton, l Taunton lib clue
ward v. Wood 2 LEV. 245; Allen v. McKean'
Inn. BIZ; Dolan v. Mayor, IS N. Y. pa
do not think that in law the defendant
the Office in good faith. He was a
nptly notified of the appointment of his low
,essor, but he declined to Weld up the for
70. he must bear the consequences of
OWN mistake. "When one of two inno-
men must suffer, he through whom it