The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1886-06-20
THE INEVITABLE.
The Supreme Court Stands by
the District.
ROBERTS AND PRATT WIN.
urh.Iower Court Properly Gave the
onic.s TO the Governors
APpointees."

decision in the appear case OF Inc feo-
nile of the lerritory Of Utah. upon the
relation Of w. II. Dickson. United
sa.s District Attorney for said Terri
tory. respondent. VS.. Nephi w. Clay ton.
apDellant. was delivered by Justice
Powers. the Chief Justice and Associate
FOREMAN concurring. The decision
IL the Jack case, which is identical with
the mist named, was also real by Jus
I 90 Power aud coucnrred in by Chi,i
Justice zane aad Associate Justice
- REMAIN.
After reciung that this is proceet =
ing In Tie MANURE OF gao t51rrGnt'. L"
drieTmme the right of the appellant Ia
tue office uf Auditor of Public Accounts
Tor The Territory OF Utah. the Judge
coniinues: The complaint alleges thai
I'm the wear A. ID 1873. the 81 Il de
PENDANT. Nrphi- W. Clayton. din u>urp
ami intriide INTO the office of Auditor OF
Public Accounts in and for The sain
Territory Of Uiab: and ever since thai
line he has, and dues still. hold anu
exerci-e the functions of ga q office
without authority oil law therefor.
The allegations made by the plaintiff
in the court below are -lyrn Ia drisil.
and the denials. which are numerous
and specific. are set forth. with the de
cisiOn aud Judgment OF The Third Dis
trict Court, from which the defendant
appealed and from which latter
il is shown the defendant founded
kis right 10 hold the Office upon the fact
that at the regular election held on
August 1t, 1880. he was elected TO the
krr "A r,~nH.f.a nf IfFah and
commissioned by the Gov
ernor; that no one had sirce been
elected to ill the office. He did not al
irge that lie ever qualified as required
oy law. but insisted, That by virtue of
sand election and the said commission Of
said Governor, and not otherwise he
was actlLg as Auditor of Public Ac
counts.
The act giving the authority to elect
and qualify IS quoted in support OF the
defendant position, and the Courts
opinion TN them is staiel as follows:
We are clearly of the opinion, that
the act in question is in conflict with
the organic law, and therefore void, and
that the defendant has no title TO The
Office of Auditor of Publ C Accounts of
this Territory. IL seems 10 US that no
clusion. The Organic Act has con-
fided 10 the Governor, the duty OF APP
pointing the person 10 fill The Office, ly
and with the consent of the Legislative
Council. If the Legislature can take
from him this power. and provide for
the selection OF the officer by any OIL e.
mode. il can take from him every pre-
rogative he possesses. Congress having
pointed out the wax by which the office
In question should be filed, the Legis-
lature has no power 10 provide another
and different mode.
But, Is il argue =, If the act prescrib-
ing the mode of filling the Office in
ques ion void by reason OF its being
IN conflict with tue Organic Act, then
the offices DO not exist. This court
held ~ he contrary years ago in Dun
can VS. AcAllister. Titan, 81. aud we
see no reason for holding otherwise at
this time. The act creating the offic-
in question il entitled, AN act to pro-
vide for Il Q apo ntnient OF ! erri =
nal Treasurer aud Auditor of Puol,c
Accounts" The act creaies the Office,
IS therefore -twOioid. The first part l.
valid. The latter part 5 invalid. The
act must be made TO read in accord
power of app intIrent in the Gov
ernor and Council. Tns Legislature Of
the Territory has taken the SAINT
view that We now take OF the ques-
ton. For, in 1873. il changed the law
20 far as the manner of electipg the Off
Ger is concerned. By the act of 1852,
tn Auditor was elected by the Lekisla-
ture. By the act of 1878, he is elected
by the people. In changing the man
ner of election the Legislature had no
idea that It was legislzIing the office out
OF existence. BY It's action il deter
mined that the office remained. no mat
ter how the officer should be chosen.
Moreover, If the whole act should be
held void il would hot help the defend
ant. he would be just as clearly a
usur er. He has no more interest than
any other citizen. in the question
whether Arthur Pratt. the Governors
appolnlee. has any title TO the Office,
aud We think the court below properly
denied the defendants claim TO lIigate
PraIt's title. He is not Interested in The
questi, as to Pratt's right, but only in
the determination of his own right 10
the Office.
In n similar strain the decision pro-
ceeds TO discuss this portion of the de-
tcluduN INSitlDns duut III COuClQUlDR
upon that topic says:
We quite sgree with counsel for the
respondent hat an officers right to hold
over until successor Is duly elected or
otherwise chosen and qualified. only
follows where be has been legally in the
exercise OF the Office, and in such cases
be holds over as an officer ne j,ire. But
on the. contrary, if the incumbent has
b en- legally invested with the office,
ne is nothing more than an officer dc
f,-et1; there Is in legal contemplation in
such case. vacancy in the office.
There being q vacancy in the office.
We think there can be no doubt but
what the Governor was authorized to
oil the same by appointment. and that
the court below was correct in adjudg
ing that Arthur Pratt, by virtue OF the
Governors appointment. and his quail
icsiiOn under that appointment. is the
Auditor of Public Accounts for the
Territory OF Utsh. .Ic
Alter di, cussing the question OF
ususparion. and using copious quota
fions in support OF the views OF the
Court Il ereupon. the decision concludes
with the following paragraph:
The burden of pro- and of allegation
being upon the defendant, we think
that the complaint was sufficient 10
rhaiienge the r1Uhf of dafandan. and ~