The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1895-12-28

can hold their offices for the uneXplred
portion of their terms for which they
were appointed is causing no little
amount of discussion among the legal
fraternity, not only of the city but
throughout the whole territory. The
opinions seem to be pretty well divided
with the chances slightly in favor of
hold-over proposition.
= representative of The Herald inter
viewed a large number of the leading
attorneys in this city yesterday, but
the greater number of them refused to
commit themselves without eXamin
ing into the question thoroughly
Judge Judd.
Among these were Judge Judd who
is known to have expressed himself IA
vorably to the judges serving out their
respective terms, but WhJn seen yes
terday said it was a very complex
problem.
Il am still of the opinion that they
proposition is badly mixed
Hon. C. s. Varian.
c. S. Varian has gone into the mat
ter and in response TO a request from
Gevernor-elect Wells has prepared an
OpNllOn III WHICH lie COICIuOGS.
L think they hold until the second
Monday in January.
"a section in the constitution pro
vides that all officers, civil and mill
tary now holding by authority of law.
shall continue to hold until superseded
under this constitution. But for these
provisions the moment the state is adj
mitted the office of probate judge
would cease to be. The judiciary
scheme Of the constitution does not
include probate courts or judges as
For convenience of the people and in
order that the public service may not
suffer the time when the provisions of
the constitution relative to these
courts are to take effect is stated to
be on the second Monday in January,
1886. The fact that admission
may be delayed beyond this time,
in my opinion, makes no differ
ence. In this event the cumbency
of the probate judges would determine
at once, since there is no provisions
for continuing them, and all jurisdic-
ton would pass at once to the district
courts to be exercised Immediately
upon the qualification of the district
judges, or after the first Monday next
succeeding the admission. Possibly a
question may arise of the right
ana QuIN OIL IQS Judges TO
hold and act as de facto Of
ficers in the interest of the public
until the qualification of the district
judges might present itself, but am
not considering such question. This
construction, it seems to me- is in ac-
cordance with the clear intent of the
constitution. Any other involves the
startling proposition. that the inten-
ton was to continue in office for terms
-.
eminent in state offices to administer
the local affairs of the people. The
authority for such a claim must be
found in the constitution itself. If it
is not there l deny it, since no act
of Congress or authority of federal
power can or will create such a con-
dition. Since l am unable to find any
warrant in the constitution for the
claim made, [ answer that in my
judgment the probate judges can hold
their offices and exercise jurisdiction
until the second Monday in January,
1896, or until the admission of the
state, should this be delayed beyond
such day"
Judge Dey.
Judge Charles C. Dey takes a differ
ent view of the matter. He has also
examined the propositions involved
and comes to the conclusion that the
probate judges should hold over
When called upon and asked the
question, he replied:
L think so. 1t is a territorial office,
the length of term, two years, the COM
pensation and duties are as prescribed
by the territorial laws; the act of
Congress only annulled so much of
the territorial law as provided for fill
ing the Office by appointment by the
president. The schedule provides that
all laws of the territory of Utah now in
force, not repugnant to this constitu-
ton, shall remain in force until they
expire by their own limitation, or are
altered or repealed by the legislature,
also for a transfer of the business, etc,
from probate to district courts when
the state is admitted, and the district
courts are organized upon the eXpi-
ration of The term of Office of the pro-
bate judge on the second Monday in
January, 1896 Said section also espec-
tally provides that until the ex-
piration of the term of office
of the probate judges, such
judges shall perform the duties
now reposed upon them by the terrific
rial laws also for appellate jurisdic-
ton of the district courts until the
probate courts expire by Imitation
''The reasonable construction of the
various provisions in my opinion is
that the Office and duties of the PROBATE
Judge continue as they now exist under
territorial laws, until the second Mon
day in January, 1896, and Judges whose
terms do not expire by that date, con-
tinue to hold until the expiration of
their two years term of office"
C. o. Whittemore.
County Attorney Whittemore wants
the question settled by legislative dc-
ton. He said:
without having had time to make a
careful and thorough examination of
the question, L am of the opinion that
to effectively dispose of all question
Judges holding over that legislative
action will be necessary.
There seems to be sufficient con-
1ict and uncertainty in the enabling
act and constitution to justify a settle
ment of this question in the manner'I
have just stated"
w ri. Bradley.
W. NJ Bradley, of the firm, Bennett,
Marshall e. Bradley, said he had not
examined the question with any spe-
cial care, and was unable to express a
firm opinion. From a quick reading of
a schedule to the constitution, how
ever, he thought it would be held that
the jurisdiction is transferred to the
district courts, and books, records, pa
pers and proceedings should be order
ed handed over to that court.
Judge Powers, John NJ Zane and /,
number of others were seen. but asked
for more time in which to consider
fbp n1Jacfinn