The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1896-03-18
THE DECISION

Following is
THE DECISION
in substance:
February u, and the answer of defend
ant eBardsly, March 3, 1895. The answer
sets up the TACT that the defendant was
appointed auditor for Ogden city on Feb
ruary L, 1894, for the term of two years
from that date, and thereafter duly quail
fled and served, and that after the COM
mencement of this action the
appointment of the relator Hume
by the mayor was rejected by the
city council. Upon this answer the state
moved for judgment on the pieadings
For the purposes of this motion all the
material facts in the pleadings must be
considered as true and confessed.
Upon the demurrer 70 the complaint
it was neid that the Office of city audi
tor would become vacant at the eXpira-
ton of two years, for which he was APP
pointed, and that the mere fact of q sue
cessor not having been appointed or con-
firmed.
The respondent Beardsly insis-s that
Notwithstanding statutes of Utah. he is
entitled to hold over by reason of the pro-
visions of the constitution of the " ate
and cites from section 10 OF the schedule
the language, "All officers, civil and mill
tary now holding their offices and ap-
pointments in this territory by
AUTHORITY OF LAW
shall continue to hold and exercise their
respective offices and appointments UNI
til superseded under the constitution.
This section, however, must be read in
connection with section OF the sched-
ule, which provides that " all laws of
the territory of Utah now in force not
repugnant to this constitution shall re-
main in force until they expire by their
own limitation. or are altered or repealed
by the legislature"
1t must be conceded that but for the
enactment of these two clauses in the
constitution, the state of Utah would,
on the day of admission have been with
out laws or officers of any kind.
And it was for the purpose OF avoiding
such a disastrous condition that the con-
stitutional convention by these provis
ions in the constitution adopted all the
laws of the territory OF Utah, and &C
cers whose authority was derived from
the territorial form of government
Therefore, the state adopted section l 1914
OF the compiled laws, which prescribes
the
TERM OF OFFICERS
years unless sooner removed, and made
that section as effective as if the con-
stitution had stated that the term of office
of the auditor of Ogden city should be
two years from and after his appoint
ment.
II this be true, then the apparently con-
fiicting provisions of section 10 of the
schedule or the contention that by rea-
son of said section of the schedule, sec
ton 1.764 is repugnant to the constitu-
ton, becomes absolutely free from doubt
or ambiguity; because section TO of the
schedule only provides that these Off
GERS shall hold and exercise their re-
Spective offices and appointments until
constitution by virtue of section of the
schedule already providing that the au-
ditoT of Ogden city shall hold Office for
two years from and after his appoint
ment of course at the expiration of that
time he is by law superseded under the
constitution
AS to the contention of respondents
counsel that the
POWER OF MAYOR
to appoint city officers as provided I'M
der territorial law had been repealed
by implication by article 9 section 4,
which, after making provision for gen
eral election, provides that municipal
and school officers shall be elected at
such time as may be provided by law"
the judge says:
II frankly confess thai the language
used by the constitutional convention is
not as well chosen as ii might have been.
but by reading the entire section, ii can
easily be seen what was the intention
of the convention. Clearly the purpose
of this section is to definitely fix the
date for holding general elections. hnd
by the latter provision, leave it to the
discretion Of the legislature to deter
mine whether or not municipal and school
elections should take place at the rame
or some other date. 1t would certainty
be unreasonable for any court to con-
section fixing the time FOR holding cleo
tfons were intended to be interpreted as
thereafter abolishing all appointiye pow
ers and offices and instead therefore
he h1ir en- fhp Cify
or school district subject TO election. Con-
vent;ons, like courts, must be considered
as using expressions concerning the thing
they have in hand, and it would
NOT BE A FAIR METHOD
to apply their words to subjects not
within their consideration, and which. if
thought of. would have been more par
ticularly and carefully disposed of.
It is also insisted that section Is of the
schedule makes it obligatory on the first
legislature to abolish all appointive Off
GERS and make them elective. The read
ing of the section demonstrates the error
OF the proposition. That section reads:
THE legislature, at its first session
shall provide for the election of all Off
GERS whose election is not provided for
elsewhere in this constitution.
OF course the convention took it for
granted that none but the most technical
could doubt that that section would read
as il the word elective" was inserted
between the words all ana OIlcerS.
Otherwise the legislature would have to
provide for the election of every small
village road supervisor now appointed by
the county court and fix the duration of
his Office.
But il is further claimed by this re-
spondent, that because title set up in
favor OF the relator in this action may
fail that, therefore, no
JUDGMENT OF CUSTER
can be pronounced against respondent. It
being contended that it is against public
policy to GUST an incumbent unless an
other person can be indicted into Office.
and that the court ought to refuse TO
entertain this action.
This court is not responsible for the
commencement of this action. - was
brought by the state in its sovereign ca
pacity. 'All that courts are called
to do when actions are brought before
them is to decide the controversy strictly
according to law, without regard to POI
icy or personal opinion In the opinion
overruling the demurrer in this &C ion
carefully separated the rights of the
state from tho rights Of the relator ana
then held that the proper officers may
prosecute the action in the name of the
people TO Gust one who has intruded into
a public office without even alleging that
any other person is entitled to the office.
(Spelling ex. rel. sec. 1.e4S.)
And that the respondent must show
that he is rightfully entitled 10 the office;
n.