Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1896-12-23
JUDGE BARTCH'S SAY
Files His Opinion in tho Late E!sc.
lion Contest Case.
HE ALSO UPuoLDs THE LAW,
GanuRliy, Hut Points Out That thu
Provision for Numbering Ballots
Is Void.

Is NOlu,
Associate Justice Bartch OF tho
state Supreme court has filed hIs
opinion In the recent election contest
case. Judge BArtoh concurs in the
deoision OF Chief Justice zano uphold.
ing the laws validity, in its main
features. Ia his opinion, which ia
concurred IN by Judge Miner, he dis.
eusses but two propositions, viz:
Whether or not 1t Ia proper 70 go behind
the enrolled bili for evidences OF its
iega! enactment; and the question az
to whether the ballot was secret. He
concludes that the legislative Journal
can be resorted TO as evidence Of ii Pa
passage, and that the provision requir.
Ing numbering OF ballots ia void,
being q violation OF the constitutional
requirement OF secrecy. His opinion
Is as follows:
concur In the result that the an.
PHI cation for the writ must be denied
But L do not concur in the proposition
which appears to be- maintained In the
opinion that when an enrolled &C. Of
the Legislature is duly signed, ap-
proved ami deposited in the office OF
the secretary OF State, this court muet
ooncluslvely presume that all c3usti.
tutional requisites were complied with
in nactment This, It occurs TO
me, MeX,ending the rule further than
is warranted by the decisions OF the
courts OF the United States, or by the
welfare OF this state, or by the win OF
the people rs announced In the Con-
stitution. Carried 10 its legitimate
effect, this proposition means that
when an enrolled act has been proper.
ly signed, approved anu deposited
with the secretary OF Estate, IL is the
law OF this commonwealth, even
though In Its enactmspt express liml-
tatlons of the Constitution have been
violated, and that when utawn In
question the Judges who are called
upon to determine It's validity have no
power to go beyond the enrolled act,
ami look into the journals OF the Leg.
islaiure, required TO be kept by the
Constitution to eatisfy the judicial
mind OF It's constitutional passage.
This would pIGcB the Legislature in
the mode of the enactment OF laws,
beyond the control OF the sovereignty
itself, and the limitations contained IN
the Consultation, respecting the man.
ner of enncting laws, would be mere
useless verbiage.
With all due respect TO that co-ordi.
nate branch OF the government, 1
canuot consent to a proposition that
would invest II with power 90 arbi-
Nnh mil nh I'd
to the Parliament OF Great Britain un.
der a monurchisl form OF government,
1t cannot be Regarded as a very potent
reason, for the will OF the sovereign
power hiss been declared In the organic
law. The people In their sovereign
capacity, after great elaboration,
adopted Constitution and establishes
q government, consisting OF an execu-
tive, u legislative ana a judicial de-
psrtment. That Constitution Is their
supreme will, which must be obeyed
by every individual, be he OF high
station or law. Those composing the
several departments are but agents,
anu In their acts are bound by the or
gsnio law, AM the limitations aud
reEiTictlOns contained therein are not
mere abstract principles, but solemn
declarations by the people themselves.
They are as conclusive upon such
agents as any other portion OF the
written character. Limitations are
not peculiar TO any one branch
Of the government, but there
are those which spply to each
department, and they are imposed
as security to the rights OF the prin-
cipal-Iho people. The power OF the
government Is vested in three depart
meuis to be exercised, subject to these
limitations. The power to declare what
the law shsll be Is legislative. The
power to declare what 10 the law is
Judicial. The power to declare what
10 the law Is delegated TO the judicial
department, and therefore the courts
have tho uIquestioneu right TO declare
any act OF the government, in any OF
the departments, whica violates the
Constitution, TO be utterly void.
This right or power necessarily in
cludes the power to declare what en-.
sctments Of the Legislature are, anu
what are not laws. AMI IL exercising
this junction the courts do not trench
upon the domain OF the legislative de-
partment, although they pass judg-
ment upon Its official acts. When the
enrolled act is assaulted In court OF law
on the ground that 1t was not constitu.
tionally passed by the Legislature, the
court must determine whether there
was compliance OF Noncompliance
with the mandatory provisions OF
the Constitution respecting the
mode and manner OF the passing
OF the act. For this purpose,
l have no doubt that, principle As
well as authority, the court may take
Judicial notice OF the legislative jour-
nails aud, In q proper case, go Denind
tho enrolled act, even when such act
hss been properly authenticated and
deposited with tho secretary Of state,
and examine such Journals, giving
their contents such weight, as evil
dence, as they may be entitled to re-
ceive, considering the manner Ia
which they aud circumstances under
which the entries have teen made,
anu II in such case II should afhrma-
lively appear upon the Journals, or
either OF them, that In passing the act
the Legislature disTegRided manda-
tory provision Of the Constitution, the
court would be justified Ia holding she
same unconstitutionsl and void. II.
however. the journals were merely
silent as To the subject under invests
CATION, then the presumption that the
Legislature acted according 10 It's dele
gated power should prevail.