The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1888-12-12

have passed upon the subject. Of
course, the question is not the same
when it is presented in State court
where the constitution of the State ex-
pressly provides for an enacing clause
and prescribes its form; but by analogy
they bear upon the question before US.
There seems to be
TWO GLASSES OF OPINIONS
upon the .ubject. In some States it is
held thai the constitution prescribing
the form of an enscting clause must be
followed literally, and that any de-
parture from it invalidates the act; in
others, that the constitutional pro-
visions is but directory, and if sub
stantiaIIy followed it is sufficient. l
have not been able to examine the text
of all the cases upon this subject, but
one which is quite in point [Cape Cir
ardeau VS.. Riley, 50 Mo-, 4z4; also re-
ported iB Ii Am. Rep, 427] is at hand.
In that case the constitution of Mis-
souri, provided what the style of the
laws of the State should be, and the
court had before it an act in which the
emitting clause was omitted; but they
held that the provision of the constitu-
ton was merely directory, and that the
want of an enacting clause would not
invalidate it. The question is one that
is not free from doubt, and l have not
had the time and opportunity to ex-
anime it as extensively as should be
done if this case was to wholly turn
upon it; but from the examination
which have been able to give it, 1 am
of the opinion that the want of an en-
acting clause does not invalidste the
act.
THE NEXT QUESTION
in order is the construction of the
statute. The contention on the part of
the city, which by its counsel has ap-
peared and participated in this argu-
ment, is that the fair construction of
the act grants the authority assumed to
the common council. And this depends
wholly on the question as to whether
section Is, of article 1, applies to the
only to cities which are incorporated or
act in ,estion is one providing for the
inoorpora 'or and reincorporation of
cities, an, Incidentally amending the
charters of cities already in existence,
The act bears evidence of hasty if not
careless construction. The first five
sections OF article l are general in their
nature, and provide the manner in
which territory not already incorpo-
rated in any city may incorporate
under the act. Sections to 9, lnclu-
siYe, provide the manner in which cities
may reincorporate under the act. The
balance of the sections of this article to
IA are of a general nature. Sections IA
and Is provide that the municipal cor
porations now existing in the Territory
and those thereafter organized are
DIVIDED INTO GLASSES
according to population. Section 16
commences the first PROVISION in the
act relating to municipal government t.
1t is an entire change of subject, al
though not separated and divided by
being set apart in separate article;
but sections 16, II, Is and 10 all relate
purely to city government, and they
are the important sections OF the act;
they are the sections which establish
the rule of electing in certain classes
of the cities certain of their officers by
districts or wards.
This court held upon a matter re-
Gently before it that section II, of
article 1, referred to cities already
existing and not incorporated or re-
incorporated under the act, that
it was the duty of the Common Cour-
Gil to take the steps necessary to ascer-
tain the class to which the respective
cities in the Territory belong. l am
confirmed in the opinion that then
habitat that section applies. By
section of article it is provided that
81 h hi on ae osk
the Common Council to take steps to
Council
SHALL CALL AN ELECTION
for that purpose and give notice OF the
class to which it would belong if re-
incorporated. That action certainly is
to be taken beforesthe Incorporation,
and the class to which the city belongs
must be determined. Section IA pro-
vides for that, and provides that the
proclamation of the Governor shall
establish that fact; so that the Common
Council when they are petitioned for re.
incorporation have Judicial knowledge
of the class to which the city would be-
long and could give the notice. Besides
this, there are various sections of this
act which are made expressly applicable
to cities. already existing which recognize
the difference between the classes. In
the city of Ogden the Common Council
have performed the duty required by
Section IA. The Governor has issued
his proclamation assigning the city to
the second class, and tits now claimed
that it becomes a city of the second
class for all the purposes mentioned in
the act, and that Section Is of Article l
applies. There is no doubt but that
the city is
A CITY OF THE SECOND CLASS.
81 classified in section IA, for the vari-
Gus purposes enacted by this statute
t1at are made applicable to cities al
eady existing wi hout Ieincorpora-
ton. But it does not necessarily fol-
low that every provision of this char
ter referring to cities of the second
class is applicable. So the question re-
ours Do sections 16 IL, Is and 10 refer
to and are they made applicable to
ci les now incorporated but not re-
incorporated under the act? The first
mention in this statute of cities al
ready incorporated is in section of
art Gle l. That section relates purely to
such cities. 1he language of the sec
ton is: ANY incorporated city or
oyiotin0 in thic TorrItOrU ~