The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1888-12-12
THE ACT WILL STAND.
The Question Of a City'S
Degree Must be
SUBMITTED TO THE PEOPLE
at Large, Not IL His Ward
Decision in Full.

Following is the decision of Judge
Henderson in the celebrated Hays test
case, which has been the subject of
lively discussion for a week past in
legal and political circles. 1t was de-
livered in open court at o'clock last
night and is given below in full:
THE OPINION.
In the District Court Of the First Judicial
Co~nty. 6. D. Hays, ' pIaintif {" u.s. U.s..
George L. Corey, Registrar OF Ogden
City, Weber County, Utah, defendant.
This is hearing upon a motion to
quash an alternative writ of mandamus
heretofore issued out of this court. The
plaintiff is q resident and qualified elec-
tor, residing in the Second Ward of the
city of Ogden; the defendant is registrar
of said city, appointed by the Utah
CITY Council of Ogden City, on the 22d
dinance, section of which reads as fol-
lows:
SEC. 2. There shall be held in said
city, on the second Monday in Feb
ruary A. D. 1889, and biennially there
after, an election for the following off,
GERS, viz: A mayor, recorder, treas
urer, an assessor and collector, and a
marshal, TO be elected by the electors of
the city atlarge, and two counciimen and
one justics OF the peace, by the electors
of each municipal ward; whose term of
Office shall be two years, and until their
successors are elected and qualified to
Office. Every legally qualified and
duly registered voter shall be entitled
to vote only in the ward in which he
resides.
There are various other provisions of
the ordinance
DIVIDING THE CITY
into wards and providing for the regis
tration of electors in the various wards
thereof. The petition further alleges
that the plaintiff made application to
the defendant to be registered as a
qualified voter of the Second Ward, and
demanded that he be registered as such.
offering proof that he was duly quail
fed; that the defendant refused to so
I0SlSICI Uub OuCLSO " IcSlSLcI ulu
as voter in the city.
The defendant now moves to quash
this writ. The plaintiff claims that the
by the City Council in pursuance of
chapter AZ of the laws of Utah of 1888,
entitled IAN act providing for the in
corporation of Cities" and claims that
said act gives authority to the Council
RI naSq tho ordinance
THE DEFENDANT CLAIMS:
First-That said act of the Legislature
is wholly void; for the reason that it
contains no enactlng clause whatever.
Second-That if said act is valid, that
it does not authorize the ordinance in
question.
Third-That said act is invalid, be-
cause it is in conflict with the act OF
Congress commonly known as the Ed
munds Act, and particularly section 9
of said act
The act of the Legislature above re-
ferred to contains no enacting clause
whatever, and the defendant insists
that this inValidates the act. The
claim is that it does not appear upon
it's face to have been enacted by any
authority. The original act on file in
the Office Of the Secretary of the Ter
ritory is signed by the presiding officers
of the two houses and by the Governor,
in the usual way. Various authorities
have been cited to me upon this pro-
position, and 1 have examined them
with such care as the limited time
would permit. There is no doubt that
it is the almost universal custom in en-
acting laws to preface them with a
statement of the authority enacting.
In England, although not required by
any written constitution, it is the
ALMOST UNIVERSAL CUSTOM;
and in this country nearly all OF the
States in their State constitutions pre-
scribe the form in which it shall be
stated; but in the Constitution of the
United States and in the laws relating
to this Territory there is no provision
expressly requiring an enacting clause
or prescribing any form thereof; and
vet the practice has been almost uni
versaI in all of the Territories to make
use of one. The most interesting case
upon this subject to which my atten-
ton has been called is what is known
as 1.-The seat of government case,"
heard in the Supreme Court of the
Territory of Washington: L. Washing
ton Territory, 1876. In that case the
validity of an act of the Legislature was
in question, locating the seat of govern
ment of the Territory, and was, like the
act in question, wholly destitute of an
enacting clause. The court, by a
majority, held that the act was void !;
but Judge Wyche dissented from that
opinion in very exhaustive and able
argument. The case is
AN INSTRUCTIVE ONE,
not only on account of the exhaustive
ness with which it was examined and
the ability displayed in the opinions
rendered, but also as matter OF his
tory. From it we learn that one OF the
hrst acts ever passed in the Territory
OF Washington, and one which regu-
lated the manner of selecting and sum-
moning Jurors and regulating various
other judicial matters, was wholly
wanting in an enscting clause, but that
its legality and validity was never ques-
toned. The dissenting opinion above
referred to reviews in detail all the