The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1896-11-08

trict under the law should take pos
session of their offices before the first
Monday in January, the time fixed by
the constitution for the beginning of
the terms Of all officers elected. But
Judges Street and Richie were ap-
pointed by the governor under sec
ton when reads: And the appointee
shall hold his office until his successor
shall be elected and qualify.
Judge Street of the civil department
submitted the matter to Attorney-Gen-
eral Bishop and yesterday received
the following:
Hon. John a. Street, Judge of the
Third Judicial District, Salt Lake
City, Utah:
Dear Sir-I am in receipt of your
communication asking my opinion on
the following question: VIII the
judges of the Third judicial district,
elected at the late election, take pos
session of their offices on the first Mon
day IN January next, or can they I'M
der the law take possession before that
time?"
L have examined the constitution and
election law bearing upon this subject
and 1 find the following provisions:
Section of article 4 of the consti-
tuition provides: "AlI general elections
except for municipal and school Of
fees, shall be held on the Tuesday
next following the first Monday in
November of the year in which the
election is held. Special elections may
be held as provided by law. The terms
of all officers elected at any general
election shall commence on the first
Monday in January next following the
date of their election
Section 10 of article of the conSti-
tuition, being provision for the filing
Of hxv
death. provides, among other things:
IF the office of justice of the
supreme or district court, secretary Of
state etc, be vacated by death, resig-
nation or otherwise, it shall be the
duty of the governor to fill same by
appointment and The appointee shall
hold his office until his successor shall
be elected and qualify, as may be by
law provided
Section of chapter 125, being an
act concerning elections, is as follows:
IF q vacancy occurs in the office of
judge of the supreme or district court,
secretary of state, etc, the governor
shall appoint person TO hold the
Office until the election and qualifica-
ton of his successor to fill the va
cancy, which election shall take place
at the next succeeding general election,
and the person elected shall hold the
office for the remainder OF the unex-
pired term
1t will be noted that section 5, last
above quoted, is identical with that
part of section 10, article of the con-
stitution above quoted. except that it
fixes the time of said election at the
next succeeding general election and
also determines the term of Office
that is, the uneXpired term of the per
son causing the vacancy-of the per-
son elected.
Section of chapter 125 fixes the
time for holding general elections and
provides that they shall be for the pur-
pose Of choosing, in proper years, Of
ficers, including district officers. Sec
ton provides: Special elections
are such as are held at other times
for any purpose required by law, eX-
cept municipal and school elections
So far as it is provided by law there
is no authority for the calling of an
election TO fill vacancy in the Office
of district judge, at any other time
than a general election, and section
of the chapter last quoted expressly
provides that said election shall take
place at the next succeeding general
election.
Sections 80 and 80 of this act provide
for the transmission of election returns
TO the secretary of state. Section 81
provides that on the first Monday of
December after the date of election, at
II o'clock noon, or in case of special
election at u o'clock noon on the day
following receipt by the secretary of
state of tie last of the returns of said
special election, the state auditor, state
treasurer and attorney general who
shall constitute a board of state con-
vessers, must meet in the office of the |
secretary of state and compute and
determine the vote; and the secretary |
of state who is secretary of SAID board |
must make and file in his office state
ment thereof and transmit a copy OF
such statement to the governor. Sec /
ton 80 of same act provides that upon I
receipt of such copy mentioned in sec
ton "a, the governor must ISSUES COM /
to the persons who from il I
appear to have received the highest
number of votes for offices to be filled
at such election.
1t is my opinion that so far as the
district judges are concerned, the late
election was a general election within
the meaning Of section of chapter 125
OF the laws of 1896, above quoted, and
mat IL was not as to them a special
election, as special election as de-
fined by the statute, is such as is held
at other times than the time fixed for
the general election as found in sec
ton l of that act.
These enactments not changing in
any way the provisions of the consti-
tuition, it therefore follows that the
time of the commencement of the terms
Of said judges would be governed by
section 8 of article of the constitution,
above quoted, which provides that the
terms of all officers elected at any gen
eral election shall commence on the
first Monday in January next follow
ing the date of their election.
The provisions of the election law
above quoted, 81 and Sc. touching upon
he manner and time of canvassing the
election returns by a board OF state
and the transmission of a
copy Of the computation of the vote
~ the board to the governor. and the
authority of the governor, upon re-
ceipt of the copy to issue commits
'iOns TO the persons receiving the high
est number OF votes, does not appear
o be in conflict with any of the other
provisions of the election law. 1T will
De noticed that section Sc OF that act
simply provides for the issuing of
commission to the persons elected. but
Ices not provide that they shall hold
ffice or be entitled to their Office upon
Qualifying under the governors COM
mission; and ip order TO determine the
inc Of taking possession of the Of
ice we must consider section Sc in con-
lection with section 8 of article of
he constitution, which fixes the first
1onday in January next following the
late of election as the commencement
f the term of all officers elected at the
-eneral election. It is Therefore my
pinion that the judges of the Third
JUDICIAL district, elected at the late gen.