The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1896-02-05

In the matter of the quo warranto
proceedings against Probate Judge Nc
Nally, the state supeme court yester-
day handed down it's decision, holding
that the terms of probate judges ex-
pire on the second Mondey in January,
1895. and overruling the defendants de-
murrer to the plaintiffs complaint
This applies to the probate judge of
every county in the state, as by gem
eral consent this was made a test case,
and the district judges will henceforth
do the work hitherto done by the pro-
bate courts in the various counties.
The opinion was delivered by Chief
Justice Zane, and concurred in by JUS
tices Bartch and Miner.
THE OPINION.
The fun text OF the opinion is as fol-
lows:
State of Utah, ex rel Alexander c.
Bishop, attorney general, plaintiff, US.
James c. McNally, defendant
Opinion by Zane, C. J.
I MS suit was instituted by the attor-
ney general to Gust the defendant from
the Office of probate judge of Salt Lake
county. To the complaint the defend
ant interposed a demurrer on the
ground that il does not state facts
sufficient to constitute a cause of &C
tion
The fe cts averred, so far as it is nee
esSary to state them. are that the pres
ident of the United States appointed
the defendant probate judge of Salt
Lake county. on the 18th day of Feb
ruary, 1895, for the term of two years;
that the state of Utah was admitted
10 the Union on the 4th of January,
1895.
The relator insists that the defend
ants term ended on the 18th day of
January, 1886 while the defendant in
sists that it viii not expire until Feb
quarry 13, 1897.
The determination Of the question
depends upon the meaning to be given
10 section Q, article "a. of the state con-
stitution and as the intent of that sec
ton is not clearly expressed. we will
consider it in the light of other pro-
visions of the same instrument, on
such proposition of law as we may
think shed light upon it.
The defendant is a probate judge I'M
der the late territory. and the dispute
is as to his term, under the state gov
eminent.
The former; they are separate and dis
Tinct; the territorial government de-
riVes its authority from congress, and
congress derives its authority from the
people of the United States. while the
state government derives its authority
from the people of the state. The lat
ter is a sovereignty; the territory was
not.
SOVEREIGN POWER.
While such is their nature and rela-
Iionship. section , of article a Of the
constitution of this state provides that
all laws Of the territory in force when
the constitution should be adopted
should remain in force until they
should expire by their own limitations,
or until altered or repealed by the
state legislature. In effect, this was
the adoption by the state of territorial
laws. This the convention had the
power to do; for the people of the state
Y ere in The possession az all the power
of government, not delegated by the
constitution of the United States to the
federal government, or prohibited by it
TO the states. The people exercise SOW
ereign power in adopting their state
government. Subject to the ratifca-
ton by the people. the convention had
the power 10 continue under the state
the laws of the territory creating and
defining the Office Of probate Judge
They also had the power to continue
in office the incumbents of those offices
or to provide that such incumbents
might fill similar offices created by the
state.
Section 10 of the same article de-
clares that: That all Offices, civil and
military. now holding their offices and
appointments in this territory by au-
thOrity Of law. shall continue to hold
and exercise their respective offices
and appointments until superseded I'M
der this constitution.
While there may be an Office without
an incumbent. there cannot be an in
cumbent without an Office.
Some of the Offices under the terri
torial government, such as the sheriffs,
the county attorneys, the Justices Of
the peace, and the constable's were
continued under the state government,
and their incumbents were also con-
tlnued in them. Other offices expired
with the territorial government; and
the authority Of their incumbentS went
with them. The Office of judge of the
supreme court of the territory expired
with that organization. Some Of the
functions, both as judges and as
courts went to the circuit and district
courts Of the United States; others to
the district and supreme courts of the
state Their offices were not continued,
and they were not made incumbents Of
offices created by the state constitu-
ton. The same may be said of the
clerks OF such courts.
PROBATE COURT NOT NAMED.
Section l of article of the constitu-
ton declares that. THE judicial power
of the state shall be vested in the SEN
-sA ~Nf ,yaI,,
in q supreme court, in district courts,
in justice of the peace, and such other
courts inferior to the supreme court as
nay be established by law"
In this section the courts which the
constitution established are mentioned.
ana the probate court is not named. 1t
IS true that the legislature may estab-