This Court has jurisdiction to hear and determine, irrespective
of the amount involved, an appeal from a decree of the Supreme
Court of the Territory of Utah in which the power of the governor
of the territory, under the organic act, to appoint a person to be
the auditor of public accounts is drawn in question.
Under the organic act of that territory, the power to appoint an
auditor of public accounts is vested exclusively in the governor
and council.
Under the power of Congress, reserved in the organic acts of the
territories, to annul the acts of their legislatures, the absence
of any action by Congress is not to he construed 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.
So much of the acts of the Legislature of Utah of January 20,
1852, and February 22, 1878, as relates to the mode of appointing
an auditor of public accounts, is in conflict with the organic act
and is invalid; but so much as relates to the creation of the
office is valid.
There was a motion to dismiss, and the cause was also argued on
the merits. The case is stated in the opinion.
MR. JUSTICE MILLER delivered the opinion of the Court.
This is an appeal from the Supreme Court of the Territory of
Utah.
The action was commenced in the District Court of the
Page 132 U. S. 633
third Judicial District of Utah territory, County of Salt Lake,
by a complaint in the name of the people of the Territory of Utah,
by William H. Dickson, United States Attorney of said territory,
against the present appellant, then defendant, Nephi W. Clayton,
under the allegation that he had usurped and intruded into the
office of auditor of public accounts in and for said territory in
the year 1879, and ever since that time had held, and does still
hold and exercise the functions of said office without authority of
law.
An additional allegation in the complaint is that on the 13th
day of March, 1886, and after the final expiration and adjournment
of the legislative assembly and council of the territory, Eli H.
Murray, Governor of said territory, duly appointed Arthur Pratt to
be auditor of public accounts of said territory, and that thereupon
said Pratt was qualified by taking the oath of office and the
execution of an official bond, with sufficient sureties, as
required by law, and, on the 17th of March aforesaid, was
commissioned as such officer, and that, after being so appointed
and commissioned and so qualified, the said Pratt, on the day last
mentioned, demanded of defendant that he surrender to him the
office, and the insignia thereof, which demand was then and there
refused by the defendant.
The petition also states that on several occasions during the
session of the legislative assembly previous to March, 1886, the
governor had nominated and presented to said council the name of a
fit person to fill the office of auditor of public accounts, but
the council at each of said sessions failed and refused to take any
action thereon, and that this was done with the full knowledge of
said council that the defendant was then unlawfully holding the
office, and exercising its functions.
The defendant answered this complaint, denying almost every
allegation of the petition specifically or by stating that he is
without knowledge on the subject of its averments, and then
proceeded to say that on the 1st day of August, in the year 1880,
he was a citizen of the United States, of the age of twenty-one
years, and was eligible to hold office under the laws of Utah
Territory; that at the regular election of that year, on the second
day of August, 1880, he was duly elected Auditor of
Page 132 U. S. 634
Public Accounts for the Territory of Utah, and that thereafter,
to-wit, in September, 1880, Eli H. Murray, the Governor of Utah,
issued to him, under his hand and the seal of said territory, a
commission as auditor, which was also signed by the secretary of
the territory. And he further alleged that since said election of
1880, no one had been elected to fill the office, nor had defendant
resigned, and that he is, by virtue of that election and the
commission of the governor, acting as auditor of public accounts of
said territory.
The defendant also demurred to the complaint, and the case was
afterwards heard upon the demurrer of the defendant upon the
pleadings on file, and on the motion of plaintiff for judgment of
ouster against the defendant.
In regard to the motion, the court rendered the following
judgment:
"It is now ordered and adjudged that the said demurrer of the
said defendant be, and the same is hereby, overruled and denied,
and it is further ordered and adjudged that the answer of the said
defendant is insufficient as a defense or justification for his
holding and exercising the functions of said office; that the said
defendant, Nephi W. Clayton, is guilty of usurping and unlawfully
holding and exercising the said office of territorial auditor of
Utah territory, and that said defendant be, and he is hereby,
excluded from the said office, and from exercising any of the
duties pertaining thereto."
As to the application of Pratt to be admitted into and hold the
office of territorial auditor, it rendered the following
judgment:
"It is further considered, ordered, and adjudged that the said
Arthur Pratt is the lawfully appointed and commissioned auditor of
said territory, and is entitled, after taking the oath of office
and executing such official bond as by law required, to use, hold,
and exercise the said office, and perform the duties thereof, and
receive the emoluments thereto belonging, until his successor is
duly appointed and qualified."
"And it is further ordered and adjudged that the said defendant,
Nephi W. Clayton, do forthwith yield and deliver up to the said
Arthur Pratt the said office of territorial auditor,
Page 132 U. S. 635
and all the books, papers, keys, safes, furniture, property,
moneys, and records belonging or pertaining to the said office, or
the business thereof, and that the said plaintiff have and recover
of and from said defendant the costs herein, taxed at twenty-two
dollars and fifty cents."
On appeal to the supreme court of the territory, taken by
Clayton, both these judgments were affirmed.
The Legislature of Utah, by an Act approved January 20, 1852,
created the offices of treasurer and auditor of public accounts and
defined the duties of each. It declared that those officers should
be elected by the joint vote of both houses of the legislative
assembly, and that their term of office should be four years and
until their successors were elected and qualified, unless sooner
superseded by legislative election. An Act of the legislature
approved February 22, 1873, declares that the territorial treasurer
and auditor of public accounts shall be elected by qualified voters
of the territory at the general election in August, 1878, and
biennially thereafter.
The case being tried on complaint and answer, the allegation of
the defendant, Clayton, that he was elected under that law, in
1880, to the office of auditor of public accounts, received the
commission of the governor upon that election, was duly qualified,
gave bond, and entered upon the duties of his office, must be taken
as true; also, the allegation that no other person has since been
elected to the same place, and that he holds over under the act of
1852, is to be taken as correct. It must also be considered as
established in the case that the governor undertook to exercise the
power to appoint a suitable man auditor of public accounts, and
that he made proper and fit nominations to fill that office to the
council of the territory at various times, upon which they declined
to act; that on the 13th of March, 1886, when such legislative body
was not in session, he duly appointed Arthur Pratt to be auditor of
public accounts of said territory; that Pratt thereupon qualified
by taking the proper oath and executing a sufficient official bond,
and was on the 17th of March, aforesaid, commissioned as such
office; that he demanded of the
Page 132 U. S. 636
defendant that he surrender to him the said office, which demand
was then and there refused.
The District Court of the Third Judicial District decided that
the act of 1852, which vested the appointment of the auditor of
public accounts in the legislature by a joint vote of its two
branches, and the act of 1878, which transferred the power to fill
this office to an election by the people of the territory at a
general election, were void, as being in conflict with the seventh
section of the organic Act of September 9, 1850, creating the
Territory of Utah. That act is the fundamental law which confers
upon the territory, upon its legislature, and upon its territorial
officers, all the powers which the government of the United States
intended they should exercise. 9 Stat. 453. The seventh section is
in the following language:
"That all township, district, and county officers not herein
otherwise provided for shall be appointed or elected, as the case
may be, in such manner as shall be provided by the governor and
legislative assembly of the Territory of Utah. The governor shall
nominate and, by and with the advice and consent of the legislative
council, appoint all officers not herein otherwise provided for,
and in the first instance the governor alone may appoint all said
officers, who shall hold their offices until the end of the first
session of the legislative assembly, and shall lay off the
necessary districts for members of the council and House of
Representatives, and all other offices."
This part of the statute is reproduced almost verbatim in
section 1857 of the Revised Statutes of the United States, as
applicable to all the territories.
1. The first question presented to us for decision concerns the
jurisdiction of this Court to entertain the appeal from the supreme
court of the territory. The law which governs that jurisdiction now
is the Act of Congress of March 3, 1885, 23 Stat. 443, c. 355, and
is as follows:
"
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled that no
appeal or writ of error shall hereafter be allowed from any
judgment or decree in any suit at law or in equity in the
Page 132 U. S. 637
Supreme Court of the District of Columbia or in the supreme
court of any of the territories of the United States unless the
matter in dispute, exclusive of costs, shall exceed the sum of five
thousand dollars. "
"SEC. 2. That the preceding section shall not apply to any case
wherein is involved the validity of any patent or copyright, or in
which is drawn in question the validity of a treaty or statute of,
or an authority exercised under, the United States, but in all such
cases, an appeal or writ of error may be brought without regard to
the sum or value in dispute."
In regard to the amount in controversy required by the first
section of this act, we are not at all satisfied that any such
value can be applied to the office of auditor of public accounts,
but we have no difficulty in holding that the record before us
presents a case in which there was drawn in question an authority
exercised under the United States, within the meaning of the second
section. This authority was that exercised by the governor in the
appointment of Arthur Pratt, acting upon the hypothesis that there
was a vacancy in that office which he had a right to fill.
If the legislation of the Territory of Utah vesting this
appointment at first in the legislature of the territory, and
afterwards in the votes of the people at a popular election, is
valid, of course, the governor had no right to make such
appointment, and the commission issued upon the election of Clayton
in 1880 continues him in the office until his successor is
appointed. Under the pleadings in the case as presented to us, it
must be held that no successor has been appointed, unless the
appointment of Pratt be a valid one. If, therefore, the governor
had authority, and was the only person who had authority, under the
act organizing the Territory of Utah and under section 1857 of the
Revised Statutes, to make this appointment, then Clayton never was
legally appointed, never was auditor of public accounts
de
jure, and the action of the governor in appointing another
person to the place was valid.
It will be observed that this second section of the statute,
while it is based upon the general principle which is found in the
act of Congress allowing writs of error from this Court
Page 132 U. S. 638
to the highest courts of a state, namely, to protect parties
against the exercise of an unlawful power on the part of the state
authorities, does not use the language which is found in that act,
that to give this Court jurisdiction, the decision of the state
court must be
against the right or power set up by the
party under the laws of the United States. On the contrary, this
peculiar feature of the appellate jurisdiction of this Court over
that of the state courts is left out when the matter comes to be
applied to the territories, and it is held sufficient that there
should be drawn "in question the validity of a treaty or statute
of, or an authority exercised under, the United States," and it is
not required that the decision of the state court should be against
the validity of treaty, statute, or authority so exercised or
claimed. We are therefore very clear that as the Supreme Court of
the Territory of Utah based its decision upon the power conferred
upon the governor, by the seventh section of the organic act of
Utah, to make appointments to office, this power was drawn in
question, and gives the defendant, Clayton, a right to have the
judgment of this Court upon it.
The motion to dismiss the case for want of jurisdiction is
therefore overruled.
2. The next question presented to us is the alleged error or the
supreme court of the territory in holding that this power was
vested exclusively in the governor and council as regards the
office of auditor of public accounts. We are at some loss to see
how there can be any doubt upon this question if it be admitted
that in case of a conflict between the organic act creating the
territory of September 9, 1850, 9 Stat. 453, c. 51, and any act of
the territorial legislature, the act of Congress must prevail. That
statute is not at all ambiguous in its division of the power of
appointment.
"All township, district, and county officers not herein
otherwise provided for shall be appointed or elected, as the case
may be, in such manner as shall be provided by the governor and
legislative assembly of the Territory of Utah."
This defines very clearly the power of the Legislature of Utah
in providing for appointments to office. The next sentence in the
same
Page 132 U. S. 639
section declares that the governor shall nominate and, with the
advice and consent of the council, appoint all officers not herein
otherwise provided for -- that is to say, all officers of the
territory who are township officers, district officers, or county
officers shall be appointed in such manner as shall be provided by
law, namely, by a statute made by the governor and legislative
assembly of the territory, but all other officers which are not
local or confined in their duties to some particular township,
district, or county shall be nominated by the governor, and, by and
with the advice and consent of the council, appointed.
That this mode of dividing the power of appointing to offices
within the territories is one to which Congress attached importance
is seen by the fact that it was subsequently adopted in the organic
acts establishing the Territories of Washington, 10 Stat. 175, c,
90, Colorado, 12 Stat. 174, c. 59, Arizona, 12 Stat. 665, c. 56, §
7, Dakota, 12 Stat. 241, c. 95, § 7, Idaho, 12. Stat. 811, c. 117,
§ 7, Montana, 13 Stat. 88, c. 95, § 7, Wyoming, 15 Stat. 180, c.
235, § 7, and it is reproduced, as applicable to all the
territories, by section 1857 of the Revised Statutes.
The office in question is not a township office, nor is it a
district office, nor is it a county office. It is not in any sense
a local office. It is a general office, whose duties concern and
pervade the entire Territory of Utah and whose functions are
performed for the benefit of the whole territory.
The sixth section of the organic act is relied on as conferring
upon the Legislature of Utah the authority to pass the act of 1852
and the act of 1878, in question. The language of section 6 of that
act is
"That the legislative power of said territory shall extend to
all rightful subjects of legislation consistent with the
Constitution of the United States and the
provisions of this
act,"
and it is immediately following this section that it is declared
that the governor shall nominate and, by and with the advice and
consent of the council, appoint all officers of the territory
except township, district, and county officers. The inconsistency
of an act which declares that the legislature shall appointed these
officers, or that they shall be appointed by
Page 132 U. S. 640
a popular election, with an express provision of the organic act
that they shall be nominated by the governor, and appointed by him,
with the consent of the council, is too obvious to require
illustration. The governor of the territory, the secretary of the
territory, the judges of the territory, the United States marshal,
and the United States district attorney are all appointed by the
President, these all being general officers, and not local. The law
then continues this control of the federal authorities over the
officers in the territory be declaring that wherever the office is
a general office, and pervades the whole territory, and is not a
township, district, or county office, the appointment shall be made
by the governor. It is utterly inconsistent both with the policy
and the express language of the statute that the Legislature of the
Territory of Utah can change the appointing power and vest it in
any other body whatever, however popular, or that, in the creation
of offices of this general character, whose duties and functions
pervade the whole territory, they can confer the appointing power
upon anybody else but the governor and council.
The question of the conflict of a law passed by the Legislature
of Utah territory with this same organic act is considered at some
length in the case of
Ferris v.
Higley, 20 Wall. 375. The act of Congress contains
the provision that "the judicial power of said territory shall be
vested in a supreme court, district courts, probate courts, and in
justices of the peace," and that "the jurisdiction of the several
courts herein provided for, both appellate and original, and that
of the probate courts and of justices of the peace, shall be as
limited by law." It was urged in that case that an act of the
Legislature of Utah was valid which conferred upon the probate
courts of the territory power to exercise original jurisdiction,
both civil and criminal, as well in chancery as at common law, when
not prohibited by legislative enactment. This proposition was
supported by a reference to the same clause of the organic act
which is relied on in this case -- namely, that the legislative
power of the territory extends to all rightful subjects of
legislation consistent with the Constitution of the United States
and with that act. It became a question in that case, as in
Page 132 U. S. 641
this, whether the law conferring this extraordinary power upon
the probate courts was consistent with the organic act, which
conferred the same powers upon the supreme and district courts of
the territory. That law was evidently intended to dispense with the
jurisdiction of the courts of two United States appointed by the
President and Senate, as far as it could be done, by investing the
probate courts, which were under the control of the legislature of
the territory, with the same powers which the former courts
had.
While there was no definition of the powers of probate courts in
the organic act, this Court held that the essential nature of
probate courts was not such as to justify the conclusion that they
were intended to exercise such powers, and especially it was held
that it was not competent for the legislature to create other
courts, or vest in other courts, created by the organic act, powers
which had already been vested in the district and supreme courts of
the territory, and that therefore the statute of the territory
conferring common law and equity jurisdiction on the probate courts
was void, as being in conflict with that provision of the act of
Congress. We think the present case is much clearer than that,
because the act of Congress, in unequivocal terms, declares where
the appointing power to all offices shall be deposited, and the
power of appointment to the office now under consideration is
distinctly reposed in the governor and council. The council which
we have so often referred to was a body constituting a part of the
legislature of the territory, which answers to the place of a
Senate in the general political system of the several states and of
the federal government.
See section 4 of the act to
establish territorial government for Utah, 9 Stat. 454.
The case of
Snow v. 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 on the part of the territory
before courts where the territory was a party, and prosecute
individuals accused of crime in the judicial district in which he
kept his office, in cases arising under the laws of the territory,
and such other duties as
Page 132 U. S. 642
pertained to his office. This was supposed to be in conflict
with the provision of the organic act, which authorized the
appointment of an attorney for the territory by the President. The
court, however, held that the duties of the office created by the
territorial legislature were not identical with those of the
attorney for the territory created under the organic act, and that
it differed especially in that his functions only extended to the
prosecution 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, based its decision on this ground,
and on the fact that the act had been in operation, without
contest, for many years.
It is true that, in a case of doubtful construction, the long
acquiescence of Congress and the general government may be resorted
to as some evidence of the proper 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 legislature 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 territories to annul
the acts of their legislatures, the absence of any action by
Congress is to be construed 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 appointing power, which is the matter in
controversy here, was not before the court in that case. We do not
think that the acquiescence of the people or of the Legislature of
Utah, or of any of its officers, in the mode for appointing the
auditor of public accounts is sufficient to do away with the clear
requirements of the organic act on that subject. It is also, we
think, very clear that only that part of the statute of Utah which
is contrary to the organic act -- namely, that relating to the mode
of appointment of the officer, is invalid; that so much of it as
creates the office of auditor of public accounts and treasurer of
the territory is valid, and that it can successfully and
appropriately be carried into effect
Page 132 U. S. 643
by an appointment made by the governor and the council of the
territory, as required in the act of Congress. The judgment of the
supreme court of the Territory of Utah is
Affirmed.