The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1889-03-09
The Opinion Recently Delivered
by Judge BOreman.
WHY WILLIAMS GETS THE MONEY
"A Public Officer Cannot Discharge the Duties
Of His Office When He is
in Hiding"


frmed. Until yesterday, however, the
opinion, which was delivered by Judge
Boreman and concurred in by Judge Judd
and Judge Henderson, was not obtainable,
owing to the fact that it was in the posses
sion Of Judge Boreman, who had left for
Beaver. 1t reached the city by mail on
Thursday evening, however, and, as it is OF
considerable Importance, it is given in full
below:
On the 18th of March, the plaintiff, P. L.
Williams, was appointed and commissioned
superintendent of the district schools OF
Utah territory, by the governor of the terri
tory. He claimed to be such superintend-
ent until the Sd day of April, 1887, when
the office was abolished by an act Of con-
gress, and by that act the Office OF
commissioner of schools was created, to be
filed by appointment of the supreme court
of the territory.
: Tho plaintiff was by the supreme court
appointed to the office of commissioner Of
schools on the I'd day of April, 1887.
The legislature, in March, 1888, made an
appropriation of the sum of 81, 800 for salary
of ''the territorial supe rintendent and COM
missioner of scho OILS" for the years 1886 and
1887. Plaintiff made demand upon de-
PENDANT
FOR WARRANT UPON THE TREASURER
for 81 800 thus appropriated The defend
ant drew his warrant for $3.50, for the year
1887, but refused to draw warrant in favor
of the plaintiff for the year 1856,
alleging that he had given a war
rant for $3.50 to L. John Nuttall, and
that INITIAL was the acting superintendent
for that year, under an election said to
have taken place in 1884. The plaintiff then
applied to the district court for a man
damus to compel the defendant to issue his
warrant upon the treasurer for $3.50 claimed
by plaintiff.
Judgment was given for the plaintiff and
thereupOn the defendant appealed to this
court.
The defendent contends that the title to
the office is involved in this action and that
consequently the plaintiff has mistaken his
remedy and should have first proceeded by
action in the nature of quo warranto to try
the title to the office
tt no doubt true that as general pro
position the proceeding by quo Warranto
is the proper one in which to try the title TO
an office, and that it cannot be Irrigated IN
mandamus But such trial Of the title,
when the rule requires resort to quo war
ranto means the right to the possession OF
the Office when such possession is held by
another and the purpose of the action IS to
GUST the occupant. The authorities cited
by counsel bear out this idea.
If the object of the present action was 10
try the title to the office of superintendent,
and had been brought by one out of posses
sion against one in possession, proceedings
in the nature of quo Warranto, is question
that could not possibly arise in the con
troversy.
NuttaQ is not in possession Of the office,
and was not when the action was brought.
He could not, therefore, be Ousted, as he
was already out of the office, and the object
of the quo warrantO proceedings had been
accomplished, Judgment in such proceed
ings being one of custer. If there be no IN
truder in possession of the office, when the
action is brought, there could be no iudg-
ment of custer. A proceeding, therefore,
in the nature of quo warrantO would not
have been necessary or proper.
NUrrLLL WAS NOT ONLY OUT OF OFFICE,
but he had been out of it for over year
when this suit was brought, and in fact the
Office itself had been abolished.
1t being clear that the title to the ONCE of
superintendent could not be tried by pro-
ceeding in the nature Of quo warranto after
the office had been vacated by the alleged
de facto officer, Nuttall, and after the office
itself had been abolished there could be no
legal objection to passing upon such title in
some other action in which it might arise
It arises incidentally in this case. 1t is not
the direct object of this action, but is first
brought into the case by the answer Of the
defendant, which denies the right Of the
plaintiffs claim to have been the officer.
The proceeding is to compel the issuance
of the warrant prayed for, and to secure
this, resort is had to mandamus. That
is proper proceeding. 1t is claimed
by the defendant that such ade-
quate remedy existed through an action
against Nuttall, to whom warrant had
been issued for said $3.50 now sought by the
plaintiff So far as the recovery Of the money
I'd 10 aiyfv hat =
could have been recovered from Nuttall. He
may have been insolvent, but, if solvent it
was very plain that be could not have been
reached. He was in concealment and could
not be fonnd, after diligent search by
plaintiff. Yet if he were solvent and could
be found, an action against him would not
have been an adequate or speedy remedy.
Such remedy, in contemplation Of the
statute, must be one against the same
party. 1t does not mean that man must
exhaust every source from which it might
be supposed he could collect the money. 1t
simply means that he must have exhausted
every plain, speedy or adequate remedy 10
collect it through or from the same party
It does not require him, before resorting to
mandamus, to sue everybody else that
might be liable for the money. The pro-
ceeding against the defendant was to
CoHPHL THE ISSUING OF THE WARRANT
10 the plalntln. An actlon against NJ tail
would not accomplish this object. The
warrant could only be issued by the auditor,
and mandamus was the only means left to
the plaintiff to secure this action, and it
was consequently proper.
1t is claimed that Nuttall should be party
to the proceeding before any Judgment
could be entered against the auditor II
Nuttall were in an Office as a de facto officer
at the time the suit was instituted, he might
have had an interest in the salary, and had
the right to claim it adversely to the plain
TIN. But such is not the fact. He was out
OF office and could, as against the de lure
olncer, have no right to the money. There
was, therefore, no necessity for making
him aparty. The cases to which our atten-
tlon has been called were where the de
1acto ofhcer was in possession of the office
as there was no authority for issuing
the warrant to Nuttall, payment to NuttaiI
could be no defense The appropriation
claimed by the plaintiff was made when
INITIAL, as stated, was not in the Office
and no one was holding it. The officer
had been abolished. In the appropriation
no reference was made to a de facto officer
and there was nothing in the act to show
that the legislature intended to make an
appropriation for the benefit of Nuttall or
anyone other than the legal claimant. The
description fits no ore except the de lure
Officer. The defendant had no authority to
assume that the legislature intended that
which il did not state. A disbursing Of
ficer has no right to assume that the money
was payable to any one otf err than the legal
officer, and his disregard OF this rule is at
his own risk.