The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1897-01-12


election.
It was necessary. however. to refer to
sucA appointment, and il WAS impossible
10 provide for the election of a successor
without liking the term of the appointive
incumbent Thus. when the statute de-
termlneS the time of holding such elec-
ton, 1t necessarily fixes the term of the
apDolntee as being from the time of his
appointment and qualification until the
successor provided for shall be elected
and qualified. This provision under the
reasoning of the chief justice is no more
lndlcated by the title than the provision
relative 10 the appointment, and must
also be invalid. 1t will be observed that
the appointee shall hold until the cleo
ton OF his successor las by law pro-
vlded, thus deiegating the power to the
legislature 20 determine when such cleo
ton shall be had and consequently the
power 10 fix the term. The two .,rovis-
one purpose OF providing for an ap-
pointive incumbent and his term. To
1 sustain the conclusion of the opinion it
must be held that the section has two OBJ
Jects in view. to-wit: The appointment
or an incumbent to ill a vacancy includ-
ing his term and the election of Il sue
/ cessor including his term. The former is
! held TO be invalid because not indicated
/ by the title. The latter is made to stand
by substituting the constitutional pro-
vision - place of the part of the law
I held invalid. This result is reached by
/ making application of the rule. that If
statute attempts TO accomplish two or
/ more objects, and is void as to one, it
! may still be in ever respect complete
and valid as to the other" CD.
Assuming that two subjects are en-
6raced in this section and that. as to the
/ hrst. the act is broader than the title,
the question remains can the remainder
of the section stand after eliminating the
invalid part. To reach this result it
| must appear that the matter remaining
is complete in itself. sensible capable of
being executed and wholly Independent of
that which is respected" a.
The whole section must fall unless it
is manifest the portion not opposed to
! the constitution can stand by itself. and
that in the legislative intent it was not
to be controlled or modified in its con-
struction and effect by the part which
is void" (.5)
Applying these principles to the ques-
ton it is difficult to understand how the
provision relative to the election can be
made to stand without referring to and
relying upon the matter stricken out
The whole section constitutes but one
clause. The matter relating to a vacancy
and the appointment by tine governor IA
Guiding the term. of such appointee is the
antecedent, while the enactment to the
election and term of the successor is the
consequent.
INTERPOLATING THE CONSTITU-
TION.
The subject is the vacancy temporarily
filled by appointment. the predicate is the
direction how such vacancy is to be
permanently filed. The whole is mingled
and blended together so that it does not
seem possible to conclude that the part
remaining was not in the legislative in
tent to be controlled or modified in its
effect by the part which was void. This
difficulty is bridged in the opinion by
interpolating the constitutional provision
above referred to in place of the
antecedent cut out by the judicial hand
TO sustain the valid part of the section.
1t is doubtful whether this sort of con-
struction can be supported. A similar at
tempt by the supreme court of Utah in |
an early case, 90, is criticised by the !
learned jurist and text writer whom I
it is true specifically provides for the APP !
oointment by the governor to fill |
vacancy, but left to the legislature by /
the duty of fixing his term and prOVid- !
ing for the election of his successor This |
the legislature endeavored to do in sec /
ton D. but failed in its entire purpose, |
because as the court holds subject not
indicated in the title is included with |
subject embraced in the title. Obviously. |
this means that the two provisions are
two subjects. and since two subjects can
rot be included in one act. it was the
duty Of the legislature to have enacted
q separate law providing for the appoint
mect of d person to fill d vacancy and
fixing his term. But the legislature did
one law. and so connected the two to-
gether as TO make one depend upon the
other The conclusion. therefore ought
to be. that if one part of this section
fails the other must go down with it. I
The consequence would be- that there
being no provision by law for the cleo
ton 10 fill the vacancy. as stated by the
chief justice there would be great force
y the claim that such appointee would
hold until the general election in 1901.
and until the qualification of such per-
son, or q successor after that time.
Tho better reason il seems to me,
would hold this section to include but
one purpose, i. e. 10 provide for the
election of person TO permanentlV fill a
vacancy. To do this of necessity refer
a1-ce must be made to what must exist
before the section can take effect. that is.
2 vacancy filled temporarily by the gov
4rnor. When the term of such incum-
0ert Is fixed to end at the next general
election, such provision relates to cleo
ions and is within the scope of the title.
the section had read Whenever the ,
governor shall have appointed a person
. fill vacancy in the office of district
Judge, etc such person shall hold until /
re next general election, ETC. etc no
although as before pointed out the
king of the appointee'S term does not
eiate to elections, if the appointment
Ices not. The section as written. means
10 more than this, and with but one gen
raj purpose which is connected with
lections. it is easy TO see that the de- :
nat general purpose The result reached s
you'd be the same, however, and the /
consequences of misapplicatio of
principles upon the third contention are
judged by the court through the chief ,
Justice, TO be without merit although !
was said that the system tends to
ncourage Independent voting, which
ONE of us think is an objection
This disposition of the question. can :,
ardlv be claimed to involve a question :
constitutional law. and we may here I
ave it. b
OF PRINCIPLES. \
AS before stated 1 do not take issue =
18th the judgment of the court on either -
f the questions discussed. 1t is with the :
of principles in the L
pinion of the majority resulting in an o
logical conclusion. which principally I
ais for criticism. This is attempted t
ere simply in our professional interest \
nd of course with none but the most Ii
ppreciative and kindly feeling toward E,
lie court. The case was of vast import -
nee. involving as it did, the entire cleo y
on, state and county. and tremendous II
nd possibly unforeseen consequences a
ere dependent upon its result The de- a
sion is accepted and approved by an o.
majority of the people, and il
we of the bar may be permitted to q
lercise our ingenuity in dissecting the =
we must remember the eXceD-
onal circumstances of the hearing. and
e short time allowed in which to pre-
ire the opinions. Nevertheless, we must | Is
lallenge the opinions which in some
lrt.culars intensity conviction, either
at logic is not a science, or that
.asual eclipses OF the mind darken learn NJ
s." ~ ~
rhe holding of the majority, that the u
urnals may be resorted to for the pur- -
'se of impeaching the enrolled bill if r.
hered to, may result in very disastrous sc
nsecuences. Already. we may see the r
dic2tions OF the coming storm. From 81