The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1889-03-09
who holds public Office cannot discharge
the duties Of such Office

who holds public Office cannot discharge
the duties OF such Office
WHEN BE IS IN HIDING.
He cannot conceal himself from the public
and yet claim to be a public officer. Nut
tall was SO concealing himself, presumably
to escape from some criminal charge. He
mad no place OF business. His whereabouts
was unknown, and he could not be fonnd
after diligent search, and could not be com
munlcated with even by letter addressed to
him through the postoffice Whatever
communication he had with his friends was
IN secret. The defendant himself did not
know where he could be found and had seen
him but once in the whole year. The
DEFENDANTS communication with INITIAL
was through third party. The officer de
1ure discharged all the duties of his office
so far as within his power He cannot be
held responsible for school officers refusing
to communicate with him, when he had
done all he could to have such communica-
ton. His right to his pay does not depend
upon the action Of third parties. He did
all that the law required of him, and in
doing that he showed himself entitled to
the pay, and no payment to another party
who Is In hiding and concealed from the
public can defeat the rightful claimant.
II Is urged that Nuttall was elected to the
office IN 1884, and that no other person had
been elected since that time and conse-
quently that Nuttall held over The cues
ton of the validity Of Nuttall's election here
arises. The same question, but in regard
to other offices, has been before this court
on former occasions, and it has been held
that all such offices should be filed bv ap-
pointment Of the governor, and in no other
way.
Long usage is not valid basis upon
which to rest the validity Of the election
law, under which Nuttall was elected The
case of Duncan VS.. McAllister, supra, was
decided in 1873, and in the face of that deci-
sion the law under which Nuttall was said
to have been elected was passed in 1880.
Nor does the fact that the enactment was
never disapproved of by congress weigh in
favor OF its validity. An unconstitutional
law does not have to be disapproved by con-
gress to render it invalid. The organic act
and the laws of congress stand as the con-
stitution Of the territory. The legislative
power of the territory shall extend to all
'rightful subjects of legislation" but such
legislation must be consistent with the
constitution Of the United States and the
provisions Of thesorganic act" Section Z, of
the organic act, authorizes the legislature to
provide for the election Of ''all township,
district and county officers, not herein
otherwise provided for" but the same sec
ton provides for the appointment
OF ali Ouner OmcerS by the gov
ernor," with the advise and consent
Of the legislative council'' The plaintiff
bore the commission of the governor That
was primd fdcie evidence of the due appoint
ment to the Office to which the governor
was authorized to make appointment 1t
gave the plaintiff title to the Office. 1t was,
therefore, immaterial whether Nuttall had
been elected to the Office or not,
THE JUDGMENT AFFIRMED.
We are unable to see that the repeal or
suspension of law by congress could be a
recognition of its former validity 1t was
evidently seen that in spite Of the decision
of the court the legislature persisted in
their attempts to fill such offices in some
other way, and so far at least as the Office
of school superintendent was concerned,
congress was determined to put the matter
beyond all question by repeating the act
itself.
There was no attempt to pass upon the
constitutionality of the legislative act; and
certainly nothing to recognize its former
validity.
The Judgment of the district court is
affirmed.