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

| grounds.
After learned and laborious ex-
animation OF the authorities, Mr.. JUS
tlce Bartch, with whom Justice Miner
concurs, reaches the conclusion that
the so-called American rule is the
better one, and therefore holds that the
proffered evidence of the journals was
competent TO impeach the enrolled bill
but proceeds to say:
In this case looking to the journals
there appears to be no affirmative
statements recorded which conflict with
the validity OF the enrolled act, and
the mere silence of the journals, as to
the mandatory provision of the con-
stitution here in question, viii not
justify the holding of the act void, be-
cause the presumption in such case
that the Legislature proceeded properly,
is conclusive" In other words the
court rules the evidence offered to be
/ irrelevant and immaterial as not tend
/ ing to prove the issue. Why, then, we
may ask. decide the grave question of
! constitutional law presented but not
necessarily involved? 1t is enough to
| defeat the petitioner upon this branch
! of his contention by excluding is evil
J dence as irrelevant. To this Il may,
perhaps, be fairly replied. that the
/ opinion of the chief justice discusses
and decides the question, and there
/ fore the majority opinion may be eX-
! Dected to also consider and determine
it. Lut the concurring opinion, on this
eIe.s,tcn. is the opinion of the cour+,
which finding the evidence to be II. ele
want had no occasion to pass upon the
const tutiOnal question. The maiD-itY
decision in this particular may be iustl.T
criticised as being of no judicial value
save as an indication of what the de-
cision of the two justices upon the
question will be, when, If ever, it shall
he nd nPppSS9 f.ilV before he
court for decision. The only clear light
shining through the judicial mist is
that of the unanimous judgment that
these particular laws were constitu-
tionally enacted. The chief justice
proves it by the enrolled bills which
he holds are conclusive evidence; the
associate justices sustain their conclu-
sion by the presumption of regularity
attaching and to be made in the alb
sence of affirmative imDeaching evil
dence of the journals The judgment
may be considered within the rule of
rvs~ -aicata. in all cases arising under
-nese particular laws, but cannot be in
voked in the attempted application Of
the doctrine of state decisions to other
legislative acts.
DECISIONS DRAMATICALLY OPP
POSED.
Upon the second question the conclu-
sionS of the judges are Numerically
opposed, yet strange to say they are
unanimous as to the result sustaining
the law. The chief Justice, while of |
opinion that a law better adapted to
secure a secret ballot might be framed, |
holds the ballot provided by the act |
TO be a secret ballot, and that the !
method devised by this law preserves !
legal secrecy" His conclusion that |
the act is constitutional is, therefore, |
of his argument is;
The constitution requires all cleo
lions to be by secret ballot
This law provides for an election
by secret ballot.
Therefore this law is in conform
ity with the constitution and the cleo
ton held under it is valid"
In the opinion of the majority, how
ever, the ballot provided by the cleo
ton law is not a secret ballot Mr..
Justice Bartch says: THE fact is that
such a ballot is not secret within the
and intent of the constitu-
ton" And again:
Il am of the opinion that so much
of section 26 of the act approved March
IS, 1896, as provides for the Identified
ton OF the ballot is in violation of the
and void"
Thereupon he proceeds to hold all
the remainder of the act and by indi-
-ection the election held in pursuance
If it and by means of this unconstitu-
-ional ballot. to be valid. His syllog-
SIN therefore is:
The constitution requires all cleo
ions to be by secret ballot.
This law provides for an election by
| ballot that is not a secret ballot.
Therefore this law is in conformity
With the constitution and the election
held under it is valid
ic fI,rn1rol1 10 I
application of a rule of construction
which is made to do like duty by the
hief justice in his disposition of the
bird contention of the petitioner. Let
he majority opinion speak for itself:
Because, however, a small portion
arily follow that the whole act is
old. All that portion of the act which {
5 not repugnant to the constitution is !
aid While the numbering of the
allotS was improper, still that cir |
umstance should not have the force 1
o void the act and over turn the cleo '
ion. The electors were not reSpon- |
ible Their ballots were honestly cast |
nd there has not been sufficient rea- |
on shown why they should not have d
cen so counted"
The evident meaning of the court is l
hat the ballot provided for by the act &
not secret because it is required TO a
g numbered, thereby providing 1Or l
osSible disclosure of the vote given, p
nj that the provisions relative to the L
may be eliminated as I'M $
leaving all other pro- c
isious as to the ballot to stand. This a
easoning is most confused and quite u
admissible in its application to the q
Use in hand. The rule of statutory 81
obstruction relied upon his its quail o
cations and in its entirety is stated
Tnfoa Cooley fOllNN-G Il
Where. therefore. a part of a el
atute is unconstitutional. that fact n
yes not authorize the courts to declare u
e remainder void also, unless all the g
DIVISIONS are connected in subject az
after, depending on each other, oper- n
ing together for the same purpose, or NJ
herWiSe so connected together in p
Gaming that il cannot be presumed | III
@ legislature would have passed the Ell
e without the other : The IN
lint is whether they are es- b'
and inseparably connected in II
distance. If when the unconstitu- is
,nal portion is stricken out, that ST
lich remains is complete in itself, and "
pable of being executed in ac- IN
Tdance with the apparent legislative II
tent, wholly Independent of that &c
lich was rejected, it must be sus- Sc
ined." ID &C
The supreme court of the United m
ates have said: The point to be de- oil
rmined in all such cases is whether ca
e constitutional provisions are so OF
injected with the general scope of the m
" as to make il possibIe. if thew are tn
'icken out. to give effect to what ap- pr
-