Albuquerque weekly citizen. (Albuquerque, N.M.) 1891-19??, 1903-08-08

Nne leklslhluTt ndu tut power 10 re-
move or legislate Mr.. Sandoval out of
the Office OF assessor OF Bernalillo
county, and In so doing they did not
act derogatarily to. nor was their leg.
islation In conflict with the fourteenth
amendment OF the constitution OF the
United States, as contended for by the
learned counsel for the solicitor gener.
al.
This brings us to the second propo.
sition: Had the legislature power to
Mi the vacancy caused by the removal
OF Mr.. Sandoval.
This question was decided by me in
the case of the Territory ex rel Cur
rem ct al vs. Gutierrez ct al. II was
contended In that case by the learned
counsel representing the solicitor gen.
eral, as IT is also in this case that II
required n general law to All vacan-
cies, otherwise tuch act VI the legisla-
ture would be In conflict and there.
fore prohibited by the last paragraph
of the act OF congress, commonly call
ed the Springer act, which reads as
! follows:
a
law can he made applicable. no special
law shall be enacted In any of the ter.
ritories of the uni,ed States by the
territorial legislature thereof"
Inis case is one that belongs to the
"in all other cases"
! IL is also contended that the legisla-
ture. section /, chapter 2, laws of New
] In
manner of filling vacancies in county
offices, and therefore, that this law is
in conflict with said section / as we'll
as in conflict with said paragraph of
the Springer act. II certainly could
not successfully be contended that II
the legislature had passed a law that
the Legislature should I'LL all yacan.
cies occurring in county Offices, that 1t
would have been in conhict with said
paragraph of the Springer act, for the
reason that u would be a general law.
Dld not the supreme court OF Montana
in Territory vs.. Gaskin, supra, speak
wisely when it said "The governor and
| legislative assembly have the power to
provide the manner of appointment;
!
point directly?'
Section 1881 OF the compiled laws of
| the United states, supra, provides,
THAT county officers shall be appoint
ed or elected IN such a manner as may
re provided Oy the governor and the
| legislative assembly" Did they not in
this case provide the manner the office
of assessor of Bernalillo county should
be filled? Would II not seem little
absurd for the legislature, la which
all power is conferred by congress, to
say in what manner county officers
shall be appointed or elected, to spread
upon its statute books an act saying
the legislature may I'LL county offices
or vacancies when the power already
rests with It? Would It not be like a
man getting permission or authority
from himself to do or not to do a spec.
life thing, which was his duty to do or
not to do?
In Territory ex rel Smith VS.. Scot ct
al, 20 N. w. Rep. 401, the question of
the legislature delegs ting It's appoint.
i've power to others was squarely rails.
ed. ne court said:
The act of the territorial legisla-
ture passed March s, 1888, removed
the seat of governpeat of the territory
from Yanktown and authorized certain
persons therein named as commission
ers to select some other city as the
capital and locate the seat of govern
ment at the place so selected, is not
| In. aa,s - - -. Al
territory, in that 1t delegates to such
commissioners a duty that could only
be lawfully performed by the governor
and the legislative assembly; nor In
that IL appoints and designates such
com missioners instead of leaving their
appointment to the governor. by and
with the advice and consent OF the leg
islative council, upon his nomination,
and such commissioners are lawfully
entitled to exercise the duties and
powers conferred upon them by such
act"
In the case of Waterman VS.. Free
man, so Calf, 233-22 Pacific Rep,
173--the constitution OF California
Is construed which reads as follows:
"All officers or commissioners
whose election or appointment Is not
provided for by this constitution and
all officers or commissioners whose
Offices or duties may hereafter be ere,
ated by law shall be elected by the
people or appointed as the Legislature
may direct"
This language is so strikingly like
the provisions In section 1857 OF the
compiled laws, supra, that construc
ton OF the California constitution
would certainly he of great assistance
and throw considerable light upon the
construction of said section 1857 The
Office under consideration in this case
was one created by statute and IL was
filled by the legislature acting directly
without having passed any general Law
or any other provision other than sim
ply the assembly appointing the ofilc
er. A comparison OF the two provis
ions are so strifingly similar that II