The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1891-06-14
SIX M1MBERSOUSIED
COuncilmen Not Elected to the
Office.
THE SUPREME COURT so DE CIDES
r W. Young, Tuddenham, POLAND. Hyde
Hardy and j. Fewson Smith Entitled
TO Their Places.

The supposition that decision would be
delivered In the supreme court yesterday
morning in the case of the People vs. Louis
Cohn ct al, known as the councilman case,
involving the seats of Pembroke, Noble,
Hall, Conn, Wolstenholme and Armstrong,
attracted large crowd OF spectators to the
couIt room yesterday morning. All the
judges were In attendance, and as soon as
the minutes of the last session were read.
the expected decision was given by Judge
Miner. 1t was as follows:
Inc people OF the territory of Utah ex rel
Richard W Young, John Fewson Smith and
D: w Tuddenaam, REALTORS, vs.. Louis Conn,
Az peal IRON. the Third district court c. s.
zane, Judge. The facts are stated in the opin-
ion.
Minor. Judge
ihs people of the territory of Utah, by Wal
ter ~ urphy, prosecuting attorney of Salt Lake
county, on relation of Richard w. Young, Will
lam j. Tuddenham and John Fewson smith.
filed complaint in the Third district court alleg
ing, among other things, that Salt Lake city is
city OF the hrst-class, divided into i've NUM-
clpal wards; that on the 10th day of February,
1870, there was an election held in said city for
the purpose OF electIng a mayor ana fifteen
councllmen three from each municipal ward,
as provided by law, TO serve in said city as the
city counc, thereof for The ensuing two years
ana that at sucn election said REALTORS, being
quaIlhed, were then candidates for such office
OF counc- linen In the Fourth municipal ward Of
Salt Lake city, and they each received OF the
legal qualified votes of said ard at such cleo
ton. 49, votes, and that no other persons were
voted for 4 said ward by said electors for said
ONCE, save defendants, and that tLey received
only S0j votes each for saic Office.
That said relatOrs were then and there each
duly elected 10 such ONCE OF counc linen, that
they had accepted said Offices, and 2Ie ready.
willing and have offered to enter upon the dis
charge of the DUTY thereof; that said defendants
have usurped and intruded into and are now
uniawfully uSurping, intruding and holding said
ofices to the injury OF the people and to the
damage OF REALTORS and ask TO be adjudged the
r1ghtfal holders OF sad ONCE, etc.
To which complaint the defendants filed their
demurrer on the grounds:
l-Sald amended complaint does not state
facts Sufficient to constitute cause OF action
. Mlsjoinder of parties plaintiff in that each
OF the REALTORS, Young, Smith and ruddenham,
claims TO be entitled 10 an ONCE which is sep
arate and distinct from the Office or franchise
claimed by each ofhis co-relators, and they are
not authorized by statute to be joined in az
ton 10 establish their titles TO separate and
distinct Offices.
3-Misjoinder OF parties defendant in said
actioU. in that it appears that each OF the said
defendants, Cohn, Noble and Hall, has usurped
and lntruded into and is holding an office sepa-
rate and distinct from the ONCE which it is
alleged each OF his co-defendants is usurping
and holding.
4-Seversl causes of action have been i'm
properly united in said complaint to-wit: 4
cause Of action by said Young TO determine his
right 10 the ONCE OF councilman with causes OF
action by TudGenham and Smith to determine
their separate right TO separate of1ces of coun-
cilmen OF Salt Lake city.
The curt overruled the demurrer. The ap-
pellants failing TO answer judgment was en-
tered in favor of the REALTORS and against the
appellants. as prayed, and or this ruling and
judgment the appellants appeal.
This action is brought by the prosecuting
attorney, under sections 5529- S530 c. l.. 1855 TO
determine the rights Of the REALTORS TO such
office.
BY section l76l. C. L. 1855. three councilmen
were to be elected from this ward al the same
time, each 10 hold the office for two years: the
term commences and ends at the same time.
Under the admission in the pleadIngs the ap-
pellants were not elected by majority of the
vo es OF the ward, but have unlawfully usurped
the Office, and now hold il against the rights of
the people aud OF the REALTORS, VINO were each
duly elected a. such election.
The contention OF the appellants counsel
that neither OF the REALTORS were elected TO
I'LL either one OF the particular offices held by
any one Of the appellants. shows that if suit
was brought by one Of the REALTORS for the posi-
ton uSurped by one OF the appellants, great
difficulty would be found in ascertaining what
particular office or place should be assigned TO
the claimant and this contention argues
strongly In favor OF the Judgment asked by the
REALTORS, and that il was proper Judgment in
their favor.
When several persons claim TO be entitled to
the same office or franchise, one action may be
brought against all such persons in order to try
cnise. C. L. ISIS, section 1854
The loinder OF defe dants under this statute
was intended to protect the rights OF the peo-
pie and TO prevent multiplicity OF action TO
determine the same question based upon one
ana the same. or substantially the same rirht.
and relating 70 the same kind or character Of
office, and where the action and the defence
would necessarily be the same or involve sub
stantially the same rights.
This Is an action wherein the people must nee
essarily be plaintiffs, ana II is difficult 10 see in
hp ha,i
com nenced and maintained so as TO be sub
stantial justice to all and injustice to none.
The REALTORS were all elected al the same time
for the same office OF franchise; neither were
elected to I'LL any particular place now held by
any particular one o. the appellants ana there
could not for that reason be any separate judg-
ment for either TelatOr as against either one Of
the appellants There is q joint common usurp-
alton of the Office by all the appellants to which
the REALTORS have joint o nmon interest or
right BIZ virtue OF their election. The action
was therefore properly brought by the people
in behalf of the three REALTORS against the three
appellants. 10 determine which set OF these per-
sons claiming utle we're emitted TO mold the
franchise and represent the Fourth precinct in
the city council
People vs. Murray, HUM. CN. " s77.
Peo, lie VS.. Murray, HUM. IN. y i3.
Flynn VS.. Abbott. l6 Cal, S53.
Palmer vs.. Woodbury., II Cal, 43.
People Elk Rel Bynon Us. Page, % Pac. Rep,
76l.
1.-THE demurrer should be overruled; the order
and judgment of the Third district court is af-
trmed with costs OF both courts
I concur. Blackburn, ].
Anderson did not sit in this case.
Judge Powers stated TO a HERALD re- |
porter that Mr. Wolstenholm had been |
waiting for the decision Of the supreme
court, and he would now withdraw his |
answer and allow judgment to be taken !
against him by default.
The next case called up was that of the |
Salina Creek Irrigation company VS.. the
Salina Stock company. ct al, involving the !
ownership of the waters of Salina creek |
The case was argued oy. E. b. Critchlow !
Tor the plaintiff and Judge Marshall for the |
defendants, and was taken under advise |