13 Utah 25 | Utah | 1896
This suit was instituted by the attorney general to oust the defendant from the office of probate judge of Salt Lake county. To the complaint the defendant interposed a demurrer on the ground that it does not state facts sufficient to constitute a cause of action. The facts averred, so far as it is necessary to state them, are that the president of the United States appointed the defendant probate judge of Salt Lake county on the 13th day of February, 1895, for the term of two years; that the state of Utah was admitted to the Union on the 4th of January, 1890. The relator insists that the defendant’s term ended on the 13th day of' January, 1896, while the defendant insists that it will not expire until February 13, 1897. The determination of the question depends upon the meaning to be given to section 9' of article 24 ’ of the state constitution, and as the intent
The defendant is a probate judge under the late territory, and the dispute is as to his term under the state government. The latter government is not a continuation of the former. They are separate and distinct. The territorial government derives its authority from congress, and emigres^ derives its authority from the people of the United States, while the state government derives its authority from the people of the state. The latter is a sovereignty. The territory was not. While such is their nature and relationship, section 2 of article 24 of the constitution of this state provides that all laws of the territory in force when the constitution should be adopted should remain in force until they should expire by their own limitations, or until altered or repealed by the state legislature. In effect, this was the adoption by the state of territorial laws. This the convention had the power to do, for the people of the state were in the possession of all the powers of government not delegated by the constitution of the United States to the federal government, or prohibited by it to the states. The people exercised sovereign power in adopting their state government. Subject to the ratification by the people, the convention had the power to continue under the state the laws of the territory creating and defining the office of probate judge. They also had the power to continue in office the incumbents of those offices, or to provide that such incumbents might fill similar offices created by the state. Section 10 of the same article declares that “all officers, civil and military, now holding their offices and appointments in this territory by authority of law, shall continue to hold and
From the foregoing considerations, we are disposed to hold that the framers of the constitution intended, by section 8, under consideration, to extend the term of probate judges under the state government to the second Monday in January, 1896, and no further. The demurrer of the defendant to the plaintiff’s complaint is overruled.