The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1896-12-13

! DC siteIl ne comes along now ana
wants the Whole election declared void
I simply because he desires TO hold a
certain Office. Counsel concluded by a
| reference TO the contention of the Pc
! titiCner that his term of Office ran IN
I til January, 1901 and quoted the con-
stitution and the statute TO show that
/ his successor was to be elected at the
next general election after his appoint
ment.
SENATOR BROWN.
Senator Brown made the closing
4 argument for the petitioner. He said
! that this action, although brought in
! the immediate interest Of MIR. Richie,
/ involved q much wider question. 1t
/ involved the VALIDITY of the last cleo
ton and the proper manner of conduct
ing future elections, and what the
speaker wanted was that their honors
would throw light on the pathway of
legislation for the future. He agreed
with counsel on the other side that
the will of the people must be obeyed,
but the difference of opinion was as
to what was the viii of the people
The constitution was the charter OF
liberties Of the people, and that must
override all other and subsequent So
called expression of the will of the
people The senator then went into a
dissertation upon the duties and pow
ers ot the three coordinate branches
of government in this country and in
England. arriving at the conclusion
that although the three branches
should not interfere with the other, yet
ultimately the judiciary must deter
mine the proper bounds Of the legislat-
i've department. In this case three
principal points were raised. First
shall we have recourse to the journal
to prove the passage or non-Dassage
Of the act2 Second, did the legislature
act within the bounds of it's iurisdic-
ton? And third. what evidence have
we of it?
It is claimed by the petitioner in this
case that the legislature exceeded it's
constitutional limits and that the Two
acts for that reason are void. The other
side claims that there is no evidence
by which these constitutional limita-
tionS can be tested. Counsel held that
one way of testing what the Legislature
has done in excess OF its jurisdiction
IS TO turn to the journals, see what
they have done by their own ~, and
If the journals show they have eX-
ceeded their authority and over-ridden
the limitations provided in the consti-
tuition, then that action, to the extent
that they have so departed from their
constituted authori-r is nullity and
should be treated as such in the cause
of GOOD government and for the pro-
lection OF the people. Counsel claimed
that the weight OF authorities was in
favor of going to the Journal Out of
over 81 states which had passed on the
subject. two-thirds of them have de-
termined it to be the duty of the courts
TO examine the journals to limit the
power of the legislature.
Sutherland on statutory construction. |
on page 4S. section IL, speaking of the |
right oe courts to examine into the !
journal says:
In the exercise of this function the /
judiciary does not trench on the do |
main OF the legislative department, |
though II pronounces Judgment upon |
It's official work The courts are bound |
by statutes when they are constitu-
uonal, but when otherwise it is the !
duty OF the courts to treat them as 4
void. Acts which cOn-ravene any pro- /
vision of the constitution in their sub |
stance are invalid. though the consti- |
tuition has not declared that conse-
quence The function of the courts is |
the same TO determine the validity of I!
acts questioned on the ground OF hay !
ing been passed by a proceeding not |
IN accordance with the procedure pre- |
Scrlbed IN the constitution. In a large /
majority Of the states in which the I
question has arisen. the courts have .
held constitutional provisions in refer /
legislation 10 be mandatory and /
against permitting any careless or dis
honest omcer'S certificate or use of the
great seal, or filing for record of dOcu-
ments having the form of legislative
acts, to give the force of law to such 1
acts, i they have not been constitu-
honaiiy enacted. These courts unite in
holding that valid statute can be
passed only in the manner prescribed
by the constitution. and when the pro-
visions CT that instrument in regard TO
The manner of enacting laws are dis
in respect to d particular act
t viii be declared q uullity though
having the forms OF authenticity"
The cOurtS have the right 10 and
must look outside OF the statute itself
ana determine by any competent testi-
nony what actually took place at the
line Of the pretended passage O. the
ict. ana y such examination discloses
hat any acts or things made requisite
" the constitution We're left uudone
" the legislature processing to pass
he act, that then IN that case the act
$ o. no effect and is nun and void
md counsel claimed that the journal I
showed that neither of these bills had
'een properly passed. and that both
u them were. therefore void
Re1errlrS TO the requirement of the
constitution that the yea and ray
'ote be entered on the journal if FIVE | {
Members request il Senator Brown
Considered that reading that in con-
JUNCTION With the other requirements
Il the constitution in that regard. the
ramers Of the constitution intended
hat the yea and nay votes on the final
passage of bill should be recorded on
he journal.
Senator Brown said the governor.
rho at first refused TO sign one of the
ills in question. had no business to
make amendments to the bill. He
hould either have signed it or not,
ut his eXcellencv suggested amend
lents and tt,e legislators kissed the
Cd and amended it, not in accordance
nth their judgment. not because they
bought il was improving it, but in
ccordance with the suggestion of the
overnor, but never passed it after be-
ng amended.
Passing to the objection to the title
the acts. Mr.. Brown considered that
he VagueneSS of the titles rendered the