Hon. Dan A. Sutherland Presents
Senate Memorial to Congress
Concluding Installment
The court held in that case
that the said legislative enact
ments were valid in so far as
they established the offices, but
invalid in so far as they under
took to take away from the gov
ernor the appointing power. See
also to the same general effect
18 Ops. A. G. 108; 1 Utah 81; 2
Idaho; 8 Utah 294.
The office of treasurer of the
Territory was created by chap
ter 77 of the legislative acts of
1913. which provided that the
office should be filled through
appointment by the governor.
The office of attorney general
was created by chapter 77 of the
legislative acts of 1915, which
provided that the office should
be filled by election of the quali
fied voters, but in case of va
cancy the governor could fill it
by appointment until the next
general election. The assembly
was also given the power of im
peachment. It is to be presum
ed that the said act of the legis
lature was reported to Congress,
as reported by the organic act,
and it does not appear that Con
gress has taken any action
thereon. Under circumstances
somewhat analogous it has been
held in some cases that the con
sent of Congress should be as
sumed, where the question was
whether the subject was a
rightful subject of legislation by
the Territorial legislature. But
it is believed that the correct
end clear rule, especially as ap
plied to the instant matter, was
tated by the court in the case of
Clayton v. Utah Territory, supra,
where the question was very ful
ly considered. The court said:
“The case of Snow v. The
United States, 18 Wall. 317, is
supposed to conflict with these
views. In that case, the office
of attorney general was created
by an act of the legislature of
Utah, whose duty it should be
to attend to all legal business of
the Territory before the courts
where the Territory was a party,
and prosecute individuals accus
ed of crime in the judicial dis
trict in which he kept his office,
in cases arising under the laws
of the Territory, and such other
duties as pertained to his office.
This was supposed to be in con
flict with the provision of the
organic act, which authorized
the appointment of an attorney
tor the Territory by the Presi
dent. The court, however, held
that the duties of the office cre
ated by the Territorial legisla
ture were not identical with
those of the attorney for the
Territory created under the or
ganic act, and that it differed
especially in that his functions
only extended to the prosecu
tion of individuals accused of
crime in the judicial district in
which he kept his office, in cases
arising under the laws of the
Territory, and that for other
districts a district attorney
should be elected in like manner
and with like duties. And the
court with some hesitation bas
ed its decision on this ground,
and on the fact that the act had
been in operation without con
test for many years.
“It is true that in a case of
doubtful construction, or of the
validity, of a law. This principle
is more applicable to questions
relating to the construction of a
statute than to matters which
go to the power of the legisla
ture to enact it. At all events, it
can hardly be admitted as a
general proposition that under
the power of Congress reserved
in the organic acts of the Terri
tories to annul the acts of their
legislatures the absence of any
action by Congress is to be con
strued to be a recognition of the
power of the legislature to pass
laws in conflict with the act of
Congress under which they were
created.
“The question of the appoint
ing power, which is the matter
in controversy here was not be
fore the court in that case. We
do not think that the acquies
cence of the people, or of the
legislature of Utah, or any of
its officers, in the mode of ap
pointing the auditor of public
accounts, is sufficient to do away
with the clear requirements of
the organic act on that subject.”
It, therefore, appears that the
said bill if enacted would be in
valid as regards those provisions
for the appointment and elec
tion of comptroller, treasurer,
and attorney general, and also
in respect to the proposed ap
pointing power conferred upon
the comptroller where the offic
ers are not for a local subdivi
sion of the Territory.
As to those various duties
heretofore conferred upon the
governor or the secretary of the
Territory by legislative acts,
they may be removed in like
manner; but any powers con
ferred upon those officers by
Congress are beyond the legisla
tive power of the assembly.
There are probably other ob
jectionable features in the meas
ure. Its general tenor and ef