The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1892-09-04
BOTH ARE WRONG.
Neither of the College Boards
Can Draw the Cash.
1t Must Be Expended by Persons Appointed
by the Goyernor-The Supreme
Courts Decision.

The supreme court yesterday handed
down an opinion in the case Of W. S. Nc
Cornick ct al, trustees Agricultural col
iege, VS.. Arthur Pratt, auditor of public
sccounts; and George w. Fletcher ct al.
tntervenors and appellsnts-sppeal from
the Fourth district court.
The plaintiffs, as trustees of the Agri-
cultural college Of Utah. made application
for an alternative writ of mandate against
the defendant, as auditor of public &C
counts for the territorial treasurer, for the
sum Of &c., $50, in favor Of the treasurer OF
the board of trustees, or show cause why
he should not do so.
The members OF the board of construc-
ton, named in the act, intorvened and
asked that the mandate for the warrant be
awarded to them. Both plaintiff and de-
PENDANT demurred TO the petition
of intervention and the defendant de-
INJURED to the petition. The former
were sustained and the latter was
awarded 10 plaintiff, and the intervenors
appealed.
The application of plaintiffs set out that
they were trustees of the agricultural col
lege, and had duly organized as such board
and by the laws OF the Territory were re-
Quired TO have charge OF all appropriations
made for that institution and the erection
OF ali buildings, etc.
On the 10th OF March, 1892, the legisla-
tive assembly appropriated sos, 900 for the
Agricultural college, which sum was TO. be
expended by board to consist of 9. w.
Thatcher /. d. Harris, ana William Good
win, who were TO receive $500 for their ser
vices and give bond of S25. zoo, and elect
a chairman upon whose order warrants
ahonld he drawn nv the audit0r
On the 9Th day of May, 1892 the plaintiffs
demanded Of the auditor that he issue TO
the treasurer of the board of trustees
warrant for S16, 250.
The interyenors claimed to constitute the
board of construction and to be entitled to
the appropriation set apart for that pur-
pose: that they had duly organized and
qualified ss required by law aud on the 6th
Gay of May demanded OF the auditor that
he draw His warrant for the % OF sos, 900
in favor Of said board, which he refused
to do.
Sec. 8. p. 664 Compiled Laws provides
that the governor. secretary, and asses
Bors of Cache, Davis, Utah, Salt Lake and
Sanpete shall be ex officio trustees for the
Agricultural college. and by an act of
March s. 1883 Compiled Laws 1883 p. 663)
the financial affairs of the college, and the
supervisor of the erection of the college
building, and the making of all contracts
JDtIblOT, W6Ec p1dcSu III buelE uhDuS, put
the governor and legislative council seem
10 have assumed that Sec. 3 of the act of
1888 was invalid so far as it provided who
shall I'LL the offices OF trus tees.
BY the organic act of the territory (sec-
ton . IL is provided that the governor
shall nominate and by and with the advice
aud consent of the council appoint all Off
GERS not otherwise provided for, ETC.
We think that the position Of trustee pro-
vided for in the territorial act Of 1855 is an
Office within the meaning Of section Of the
organic act, and must be filled as therein
provided. The college was designed to be
one of the permanent institutions of the
territory, to be under the control of trus-
tees, etc. 1t was made their duty to estab-
of the agricultural experiment station,
and that they should give bonds for
the performance of their duty.
1t will be seen that they are charged with
important public duties, affecting the whole
people, OF continuing nature, and
have fixed compensation. We also think
that section OF the act establishing the
college is invalid SO far as it designates the
persons who shall be trustees, being in
contrayention OF section Of The organic
act, but 40 far as 1t established board to be
appointed by the governor and council 1t Is
valid. IL is commended by plaintiffs that
the members of the board Of construction,
must be appointed by the governor, and
that so much Of the act az appoints them is
invalid, while the remainder of the act is
valid and the appropriation must be ex-
pended by the trustees. While the inter
venors insist that the board OF construc-
tion sre not officers but merely agents or
employees, and II il shall be held that
they are officers then they must be ap-
pointed by the governor in lieu Of those
named, and until such appointment there
Is no one to draw and expend the money.
This court then discusses the question OF
what constitutes public officer and quotes
many authorities. Ia the case OF the state
We. Stanley (66 N. g. 59) it is held: "a
public ONCE Is an agency for the state, and
The person whose duty il is to perform this
agency is public officer. The es-
sence OF IL is. the duty OF performing
an agency, that Is, Of doing some
act or acts, or series of acts
for the state.n A clerk in the department
Of government, persons authorized by leg
islsture TO appoint commissioners to build
state house, commissioner for the con-
struction of highway, q levy commits
fioner, ETC., etc. and etc., have all been
held to be officers.
In the 3, II. Y, p. COS Judge Davis said
probably the true test to distinguish off,
cers from simple servants or employees is
the obligation to take the oath prescribed
by law In the 6. Utah, 403 1t was held
that where the county court appointed q
member OF the body to attend to the bust
ness during vacation, at fixed salary. and
deromineted the position as superiuten
Gent Of county affairs, it was held 10 be the
creation OF an oftice"
In the present case It would seem that
the legislature intended to establish an
ofiice by requiring the official oath 70 be
taken. In the case of United States VS..
Maurice, Q Brock 103, Chief Justice Mar
shall said: IAN office is public charge or
employment. and il the duty be .
continuing one which ia defined by rules