Salt Lake evening Democrat. [volume] (Salt Lake City, Utah) 1885-1887, 1886-01-16
THE SUPREME COURT DECISION
I'm which U. J. Wenner, the Govern.
or's AppoIntee, Legally knocks
Out Judge Elias Smith.

n attend to the matter, and Judge Harl
ness submitted Mr.. Smiths side of til
question. The following opinion, whic
. was delivered yesterday by Judge Power
will be found to be very interesting reat
ing, and is given yerbatim:
{ TERRITORY OF UTAH, SUPREME COURT.
Uriah j. Wenner, Respondent, VS.. Ella
Smith, Appellant.
OPINION OF THE coURT-PowERs, J.
This case comes to us on appeal from tn
Third District Court. It appears by th
findings of fact, that the plaintiff, Uriah
Wenner, was in August, 1884, and had beel
, for three years prior thereto, citizen of tn
United States and resident and taxpaye
of the city and county of Salt Lake, in Utal
Territory. 1t also appears that there was N
election in the Territory of Utah in August
1892 as provided by the statute, for the rea
son that all the election offices of the Terri
tory had been vacated by the act of Con
gress, approved March 22d, 1882, entitled
IAN act to amend section ffty-three hun
dred and fifty-two of the Revised Statutes Of
the United States. in reference to bigamy
and for other purposes" and the fact tina,
the Commissioners appointed under section
nine of the act, did not arrive in Utah II
time to fill the offices and provide for the
election. In consequence, therefore, of the
provisions of the act, there was no election
of county officers held in Utah in 1882.
STATUS OF DEFENDANT SMITH.
No question is made but what, in August
1880, the defendant possessed all the quail
fcations required by the statutes of Utah
Territory for holding the Office of Probate
Judge of Salt Lake county, and, at the gen.
eral election held in August, 1880, he was
elected to that position, and on the twenty
| fourth day of the same month he was COM
missioned by the Governor of the Territory
as such officer. entered upon the discharge of
the duties of the Office and held it continu-
ously until March LIST, 1884.
| From sometime prior to 1862, the defend
ant has been member of the Mormon
church, and has believed that polyeamy was
permissible to him. He was married to
two women previous to 1862, and since then
to the present time he has treated the women
as wives. He has not entered into new or
other marital relations since 1862.
wENNER's APPOINTMENT.
September 16, 1882, the Governor of the
Territory of Utah, Hon. Eli Fl. Murray,
deemlng that there was vacancy in the
office of Probate Judge of the county of
Salt Lake, under the provisions of the act
of Congress referred to, and provision of
subsequent act of Congress, approved
August q, 1907, buo SdIu6 De1nQ q DrOVlSlOu
contained in Chapter 433 of the laws of the
first session of the Forty-seventh Congress-.
appointed the plaintiff to the Office. The
plaintiff therefore, and on the eighteenth
day of September, with two good and suffi-
c1ent suretles, to-wit: William G. Green and
Adam 5. Patterson, executed an official
bond conditioned for the faithful perform
of his official duties as Probate Judge. in
the penal sum of five thousand dollars. The
xror rocI To- ,f O.
Lake, and each worth the sum of $4,000 over
and above his debts and liabilities, in
property not exempt from execution. On
the same day that the bond was executed
the plaintiff took an oath to the effect that
he would honestly and faithfully perform
the duties of the Office of Judge of Pro-
bate, which oath was then and there at
tached to the bond.
TREASURER CUMMINGS DECLINES THE BOND.
James Cummings was then the treasurer
OF Salt Lake county, and on the eighteenth
day OF September the plaintiff rendered him
at his Office, the bond with the oath at
tached and requested the treasurer to file
the same. Cummings then and there un-
Gaa.ltiedly refused to approve or file or ac-
cept the bond and oath, assigning as his |
only reason for such refusal, that he did not |
recognize the appointment of the plaintiff |
to the office. Thereupon the plaintiff de- |
posted the bond and oath with the Score |
tary of the Territory, for the use and benefit |
OF whomsoever it might concern, as being
the best substitute practicable for the filing
required with the county treasurer. On the
22d day of September, 1882, the Governor of
the Territory issued to the plaintiff a COM
mission for the office of Probate Judge, in
due form and under the seal of the Terri
tory, duly attested by the Secretary. Onthe
same day the plaintiff exhibited his COM
IN no 1afa sc |
ant of his appointment and qualification to
ind for said office, and demanded of defend
mt that he relinquish to him the office of
Probate Judge, and deliver to him the books
md papers pertaining to the office-all and
singular thereof, and the defendant refused.
PLAINTIFFS DEMANDS.
The plaintiff, in accordance with the pro-
1slons OF the statute, was appointed for the |
erm of eight months. The fees and emoI-
ments of the office of Probate Judge, re-
elved by the defendant during the term of
d ign months next ensuing September %,
oo2, amounted to the sum of fourteen hun :
red dollars For these fees and emolu- 3
lents so received, the plaintiff made demand :
I the defendant, before bringing suit. but +
ayment was refused. The defendant held q
ne office during the said term of EIGHT
lonths believing that he had a right thereto,
nd the ices and compensation received BY il
L. 10
,na BILE worth of the official services per- +
)rmed. Z
Upon this state of facts the learned Judge +
no tried the case in the court below found n
CONCLUSIONS OF Law: y
1. A vacancy existed in the Office of Pro-
lite Judge OF Salt Lake county on the 10Th
" of September, 1882, which the Governor h
Utah territory was by Act of Congress III
lthorized to fill by appointment. ii
2. BY the appointment of the Governor, r,
the efforts made to qualify, and by the q
mmisslon of the Governor, plaintiff be- Z
81, entitled to enter into and hold said r
ice OF Probate Judge, and have and keep W
fees and emoluments thereof for the fit
I'M OF eight months next ensuing. a,
J, Plaintiff is entitled to Judgment against M
PENDANT for the sum of 81, 400 and inter &c
J thereon at ten per cent per annum from CT
gust 18th, 1854, amounting, principal and te
crest, to $I,563.33, and for costs of suit. ba
QUESTIONS RAISED BY THE RECORD. IL
.Irst-Was there a vacancy in the Office !
Probate Judge, which the Governor was w
thorized to fill? w w
the plaintiff recover without nr
y vlndlcatng his title to the office in di- p er
It proceeding? So So
0hird-What is the measure of damaoes If on on
plaintiff was entitled to Judgment? na ~,
:. We think that the first ouestion mnst cel
answered In the affirmative We think ~
It on the day that the appointment was az
dc, that a vacancy existed in the office 49,,
lch the Governor was authorized to fiji. qu
l mat ne performed his plain duty in the Th
muses.. 1t had been provided in sub III IN
nee by section 8, chapter AZ, of the first Pa Pa
SION OF the forty seventh Congress. that ~ ;,o
blgamist, polygamist or person cohabitino h Is