The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1902-01-14
LAWYERS SCORE
SUPREME COURT
Varian and Lee Address the Bar
Association.
--&-
CRITIClSE RECENT DECISIONS
SALARY CASE INCLUDED AND
SPEECHES WERE APPLAUDED
CRITIClSE RECENT DECISIONS

Narian, president Of the association.
and w. A. Lee. a member. and were
based upon the opinions of the court i'm
the mandamus cases Of ThOresOn VS.
state board Jf examiners. Wright VS.
county commissioners OF Weber cOun-
T.. and Wells Us. Tingey, the latter be-
ing the salary case.
resident Nariau brought the matter
uD I'm his annual address Dy saving that
there was one decision Of the supreme
court that particularly invited 2tten-
ton He then referred to the case Of
ThoresOu vs. the state board of exam
iner~. and called attention to the fact
that in the case under consideration
The court held that public officers in
ma1camus proceedings against them
could not plead in justification of
performance of a ministerial duty
imposed by the statute that the statute
was in violation of the constitution Of
tine state.
Hard and Fast Rule
The rule laid down in the case Mr..
N1rian then said was d hard and fast
one. which admitted of no exception,
and cases supposed to support the hold
ing of the codrt were cited from va
Tious stdtes some of which the speaker
declared, did nothing of the kind He
said further that if this opinion was
TO stand as the law of the state. the
financial officers who are charged with
the collection and disbursement of pub
ii. moneys are prohibited from in any
wise questioning the validity of any
act of the legislature. directing the
auditinS of accounts and the disburse-
Went OF moneys in payment thereof.
But M Narian added, the court
las not rigidly adhered to the rule Of
the ThOresOn case.
He then cited the opinion of the court
- the case Of Wright vs.. the county
commissioners of Weber county. i'm
which the commissioners attempted to
defend an action against them upon
the ground that the statute in ques-
ton was unconstitutional, and the
court sustained their contention. but at
tho same time declined to consider the
question as to whether or not they
were ministerial officers, because the
parties to the proceedings 81 re
Qucsted.
Baskin Dissentel.
Tt was mentioned. however, that the
justice CBaskin) who wrote the opinion
in tie Thoreson case dissented in the
Wright case.
continuing. Mr. Varian referred to
the fact that in the case of Wells VS..
1ingey the court passed upon the con-
stitutional question presented, and
awarded a DeremptOTy writ without
making any reference to the Thoreson
case. and then added:
We are not advised Is to the reason
if any. for distinguishing this case. 1t
is true the issue was solely between
the state and its officers and all par
lies were before the court But in he
Ih'resou case the state was also be
fore the court defending its school
fund against an alleged Unconstitution-
al statute
Commenting further on the WeGs
case, Mr.. Narian said that the court
without dissent upheld the statute in
IFS entirety and evidently considered
the case within an exception to the rule
laid down in the ThOresOn case. An
admission, he then said. there is any
exception to the rule. in some deg~ee
modified the effect of the ThOreson de- /
CisiOn.
Who Is Responsible
In conclusion, Mr.. Varian asked if a
public officer charged with the safe
keeping of public funds, could not DIS
obey an unconstitutional demand ma lie
uE the Legislature upon money in His
charge, who would be responsible if
moneys were wrongfully disbursed?
The remainder OF Mr.. Varian's ad-
dress was devoted TO a discussion Of
the recent laws enacted by the legis-
lature and the need of increased sal
aries for the judiciary.
Mr.. Lees address was upon the sub
ject of The Uncertainty of Law; It's
Cause and Remedy" and he dived INTO
the supreme court by saying that IN
d comparatively recent case a very Ie-
spectacle court had declared hat
where the statute required an officer
TO perform a ministerial act he wIll !
not be permitted TO plead in justifica-
ton of performance that the act
would violate the constitution"
This was the Thoreson case, and Mr. !
l4e declared that in a somewhat |
lengthy opinion containing many cit1-
IoHs none of which supported the .IOc-
I'n". the court succeeded in convincing
Itself az the correctness Of the rule"
Could Not Be a Law.
Attention was also directed to the
iar, Thar the statute under which the
acton vas brought provided that a
..-l u. mandate might issue to compel
,.. i..tH'mdnCe OF an act which the Z
specially enjoins, and Nj. Lee
Nr". if the writ can only issue to |
'.-.s. lhe performance OF an act
.-.H the law specially enjoins. it is
'.--...ent that the writ viii not is {
.-. b.. compel the performance of an
..-.e is unconstitutional it is not
- and hence could not be a law
ia. .1J.lned any kind OF duty on any
"..- .- am officer"
Commenting upon the salary case. !
. De-. said that counsel for the re- /
'FFrian & Richards cited the /
u case, which was conclusive |
I'D. questions at issue if that doe /
Was TO prevail and would effec- !
.. prevent the auditor from plead !
- ... unc1nstitutiOualiJy of the act !
.. the Same time counsel. he said I
"" usC.2inine to question the /
-Hass OF the Thoreson decision +
-ea at great length to consider /
Institutional question involved in 4
Tie salary case.
Judge Baskin's Reasoning.
t.5 ~. Lee then said that the learned !
aasNn) who wrote the opinion /
r.. salary case. first announced tina, |
the validity nor the c0nstitu- |
...F of the act increasing the sal /
-, Na- ln question. and then devoted I
ir -..Aainder of the opinion to discuss /
,.2 '.. constitutional question in
c-r.'' ana finally reached the con- I
that the fixing of the salaries !
.-'eIs by the constitution was not /
n 'l.IE or salaries by law. and that
H.. '-.lh law as used in the coustitu- /
s.,s oi4 not include the instrument it /
t.-a was thus seen that there are now
has l5aQing cases on the question. One |
=. d., mat an Officer viii not be heard /
.l-ad I'm justification of the nom /
,f-,. nance Of an act that it would ]
r,.s the constitution. and the other (
ro,, .!.,s him TO do so, but holds the law
sututi0nal
Fsident Eariap and Mr. lee wave /