Salt Lake evening Democrat. [volume] (Salt Lake City, Utah) 1885-1887, 1886-01-16
THE SUPREME COURT DECISION
I'm which q. J. Wenncr, the Govcrn-
or's Appotntce, Legally Knocks
Out Judge Elias Smith.

Culitii, VII hppcdi mum uic iiiiiu DiotNe
Court, was argued at length last Tuesday
in the Supreme Court and taken under
advisement. The case was ably argued
by Thomas Maloney for the respondent,
Judge Sprague who has carried the case
through for Mr.. Wenner being unable to
attend to the matter, and Judge Hark-
ness submitted Mr.. Smiths side of the
question. The following opinion, which
was delivered yesterday by Judge Powers,
will be found to be very interesting read
ing, and is given yerbatim:
TERRITORY OF UTAH, SUPREME CoUBT.
Uriah j. Wenner, Respondent, VS.. Elias
Smith, Appellant.
OPINION OF THE couBT-PowERs. J.
This case comes to US on appeal from the
Third District Court. 1t appears by the
findings of fact, that the plaintiff, Uriah j.
Wenner, was in August, 1884, and had been
for three years prior thereto, citizen of the
United States and resident and taxpayer
of the city and county of Salt Lake. in Utah
Territory. 1t also appears that there was no
election in the Territory of Utah in August,
1882, as provided by the statute, for the rea-
son that all the election offices of the Terri
LOTy lhu DttH NuCUteu DN bDt UCU Vi OOU-
gress, approved March 22d, 1882, entitled
IAN act to amend section fifty-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 that
the Commissioners appointed under section
nine of the net, did not arrive in Utah in
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
fications 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 polygamy 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 II. Murray,
deeming that there was a vacancy in the
office of Probate Judge of the county of
of Congress referred to, and provision of a
subsequent act of Congress, approved
August Z, 1882, the same being provision
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-
oient sureties, to-wit: William G. Green and
Adam s. 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
sureties were residents of the county of Salt
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-
qualifedly 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 tho Secretary. On the
same day the plaintiff exhibited his COM
mission to the defendant, informed defend
ant OF his appointment and qualification to
and for said office, and demanded of defend
ant that he relinquish to him the office of
Probate Judge, and deliver to him the books
and papers pertaining to the office-all and
singular thereof, and the defendant refused.
PLAINTIFFS DEMANDS.
The plaintiff, in accordance with the pro-
Visions of the statute, was appointed for the
term of eight months. The fees and emoI-
uments of the Office of Probate Judge, re-
ceived by the defendant during the term of
eight months next ensuing September %,
1882, amounted to the sum of fourteen hun
dred dollars. For these fees and emolu-
ments 80 received, the plaintiff made demand
of the defendant, before bringing suit. but
payment was refused. The defendant held
the office during the said term of eight
months believing that he had right thereto.
and the fees and compensation received by
the defendant were not more than the rea-
soneble worth of the official services per-
formed.
Upon this state of facts the learned Judge
who tried the case in the court below found
as
!. vacancy existed in the office of Pro-
bate Judge of Salt Lake county on the 10th
day OF September, 1852, which the Governor
OF Utah Territory was by Act of Congress
authorized to fill by appointment
=. by the appointment of the Governor,
by the efforts made to qualify, and by tho
commission of the Governor, plaintiff be-
came and was on the 22d day of September,
1851 entitled to enter into and hold said
of1ice OF Probate Judge, and have and keen
the fees and emoluments thereof for the
term OF eight months next ensuing.
y, Plaintiff is entitled to Judgment against
defendant for the sum of 81 400 and inter
est thereon at ten per cent. per annum from
August 18th, 1854, amounting, principal and
interest, to Sl,b63.33, and for costs of suit.
QUESTIONS RAISED BY THE RECORD.
First-Was there vacancy in the office
of Probate Judge, which the Governor was
authorized to fill?
-, Second-Can the plaintiff recover without
first vindicating his title to the office in di-
rect proceeding?
Third-What is the measure of damages if
the plaintiff was entitled to judgment?
L. we think that the first question must
be answered in the affirmative. We think
that on the day that the appointment was
made, that vacancy existed in the Office
which the Governor was authorized to FIJI,
and that he performed his plain duty in the
premise 1t had been provided in sub
stance by section 3, chapter AZ, of the first
session of the forty seventh Congress, that