The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1895-05-25

COUEI III the CNGitl the CONSTITUTION -
adopted or will I, together with the select
men, retire to private hfe?"
This is the question which is agitating
Judge AIcNally at this writing.
There is likely to be some discussion
McNally will, in all probability, test the
question to its limit.
The constitution, as it stands, provides
that after the adoption of the instrument
the duties which have been performed
by the probate judges, as such, shall be
continued by the judges of the district
court
1t contains nothing as to the matter of
his membership Of the county court.
The law, as it stands on the statute
book, is as follows: Each county shall
have a county court consisting of the
probate judge of such county and three
selectmen.''
The nice little legal problem which now
confronts us is. can one member of
body be abolished without depriVing all
OF their rights?
McNally contends that the constitution
only takes from him his preogative-a
Judge of probate; that it is silent on the
question of county duties. Ii the abolish
ment of the Office of probate judge carries
with it the duties he has been performing
as county officer, McNally says that II
dlSO WITH II the DdlancS CT the
court, inasmuch as the adjustment of
one member is the adjustment of all.
In other words, the law says that the
county court Shall consist, ETC. Ergo,
the adjustment OF one member breaks
the combination. a county court which
has no probate judge is not a county
court.
The constitution has provided for the
clerk in the following language of section
ii, of article VII: County clerks shall
be eX-oificlo CLERKS of the district courts
in and for their respective counties, and
shall perform such other duties as may be
provided by law"
Section 8, of article XXIV, says when
the state is admitted into the union, and
the district courts in the respective dis
trictS are organized, the books, papers
and proceedings of the probate courts in
each county, and all causes and matters
of administration pending therein. shall
pass into the jurisdiction and possession
of the district courts"
Thus 1T will be seen that the clerks are
provided for; the probate judge as far
as his duties as probate Judge are con-
ceIned, but nothing is said regarding his
duties as chairman of the county board.
Desiring to place this matter before the
readers of The Herald in it's proper light,
a reporter last night saw few of the
leading attorneys of the city and asked
for their opinions. None of them were
ready to express an opinion off hand; all
wanted little more time in which to
look up the matter. Two, however, were
willing to give their views if they were
One of the men is in favor of the posi-
ton taken by the probate judge and the
other against. The latter said:
las regards the position taken by Judge
McNally, cannot say where he gets his
authority. The convention has practically
abolished the Office of probate Judge.
That carries with it all the functions APP
pertaining thereto. In relation to the duty
of chairman of the county board that
was merely an ex-officio task. 1t is swept
away with the balance of the question.
1n1-N rlc ic.l xrf1 10
a present. the commander-in-chief of the
military forces of the territory, ex-otticio.
Suppose that in the framing of the new
constitution, the convention had over
looked the work of vesting the new gov
ernor with the same powers? 1t would be
just as fair for Governor West, and he
that he was still commander-in-chief of
the militia, as has Judge McNally to con-
tend that he is still chairman of the coun-
ty court. Suppose, further, that Governor
west. under the same conditions, should
say that because the convention over
looked the work of vesting his successor
with the ex-ofticio power of commander
in-chief that If his office as governor was
terminated and he was bound by the acts
of the convention to cease acting as COM
mander-in-chief, that the militia should
disband? One position is as untenable as
the other, and anyone will recognize the
righteousness of the latter
The other attorney was of this opinion:
1.-THE constitutional convention, which ex-
erciseS legislative functions had the pow
er to abolish the office of probate judge.
In so doing it vacated the office and all
the duties thereunto appertaining. That
TACT settled 1t now remains to question
the matter of the county court. 1t is
commended that the probate judge merely
acted as chairman ex-officio. am of the
opinion that the statute was so explicit
that it cannot be misunderstood. 1t says
that each county "shall have a county
court" This makes county courts a ne
cessity. It further relates that this court
shall SiSt of the nrOlafa iIJ1ora NJ c1Ipb
county and three selectmen. l maintain
that when the conventions act is ratified
by the people that the county court
ceases to exist until it is restored by an
act of the legislature. For this reason:
''The constitution cannot abolish a part
of an Office and not abolish all of it. The
county court is an office composed of four
parts. By a specific act of legislation the
number might be reduced. but such a re-
duction would have TO be for good and
sufficient reasons. And even under those
circumstances, the reduction could not
take effect until the terms of the officers
had expired
I'm this case the county courts of the
territory will have to petition the next
session of the legislature for relief. There
is no other way out of the matter. When
Judge AIcNally is. compelled by law to
surrender all the effects of his office to his
successor, the district court his functions
and those of the men in the county court
will all end"
Judge NcNally, in relation to the case,
said last night that he was going to test
the matter and ascertain whether or not
he was entitled to hold over. He is of
the opinion that he should still be the
chairman of the county court, and that if
he is not permitted to hold until his term
expires which will be at the expiration
of the time of the present selectmen, that
they too die with him.
1t is an interesting point, and will no
doubt have to be settled by legal adjudi-
cation.
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