The Daily Alaska empire., 1929-05-21
HURLEY RAISES
 QUESTION OVER
 COLE ELECTION
Declares Election of Audi tor and Commissioner
 of Education Illegal
fContinued from Page Onel

I
 branch of our Territorial Govern
 ment or a right lodged in the people"
 MT. Hurley then cites a recent
 decision i'll a case arising in the
 Philippine Islands ruled on by the Supreme Court of the United States, and quotes that Court as saying: Legislative power, as dis tinguished from executive power, is the authority to make laws but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions.
 Governor Has Power Continuing, MT Hurley declarcd
 That Congress did not contem- plate divesting the Governor of Alaska of his functions as the Chief Executive of the Territory is spe- officially indicated in Section of the Organic Act wherein it states, viz: | that all laws of the United States heretofore passed es- tabishing the executive and judi cial departments in Alaska shall continue in full force and effect until amended or repealed by Act of Congress. :
 T therefore contend that the Alaska Legislature has no right under or by virtue of law to at- tempt to fill the office of Auditor as created by it. It could create such an office but as to filling it, the only alternative which lay in the power of the Legislature was by instructing the Governor to do so, or by calling for an expression of the will of the people through an election.
 As To Commissioner Second, the attempt by the Leg islature to fill the office of the Superintendent of Schools was also a void act on it's part for the req son that it constituted another and further usurpation of the execu- tive functions of the Governor of Alaska.
 Section 323, page 23l, Compiled Laws of Alaska reads as follows: That the Governor of the District lof Alaska shall be ex-officio super intendent of public instruction in said district, and as such shall
 have supervision and direction of the public schools in said district and shall prescribe rules and regu- lations for the examination. and qualification of teachers, and shall make an anual report of the condi- tion of the schools in the district to the Secretary of the Interior" The power so conscrred, MT. Hur- ley contends, is still further pro-, tected by Section 3 Of the Organic Act, and he argiies that the Acts invading that power are null and void per SC and do not require to be so declared by Congress. He also urges that the Philippine case, re- ferred to in connection with the Auditors election. is controlling as well as regards the Commissioner of Education.
 Henderson Can Continue MT. Hurley concluded his letter by saying:
 T would therefore call your at- ltention to the fact that it would
 appear that the office of Auditor of the Territory is being illegally
 filled and administered by MT.
 Cash Cole, and that the present in-
 cumbent in the office of Superin-
 tendent of School is entitled to hold
 that office, with the approval of
 the Governor, until his successor
 is legally appointed or elected and
 qualified"
 MT. Smith said today he had not
 given serious consideration to the
 communication, nor submitted it to
 the Attorney General or anyone
 else for an opinion as to the mer- I its of the contentious raised