The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1896-07-26

Ogden City. The decision is of state,
it does directly to the heart of the
subject of the rights of legislative bod
les to control the executive power, par
ticularly in the matter of appoint
ments to Office. The court refuses a
decree Inducing Hume into office, but
| in going over the law in the case he
makes it entirely clear that the city
council has been acting illegally and
has been trying to keep Beardsley in
office and hold Hume out by a lot OF
! f1imsy technicalities.
The language of the opinion is force
full and the logic points to but one re-
suit. The mayors appointee must be
auditor of Ogden. Should the council
reject him the mayor has only to re
appoint him and he is the legal au-
ditor until he is rejected, and in that
case the mayor can immediately re-
appoint him. Furthermore, as will be
seen by the decision, if the council per-
sists in its policy then a way is pointed
out by which the council can be
brought TO a realization of its limited
powers. All these facts, it must be
remembered, are brought out in a
decision which refuses the direct relief
asked for. Following are the main
points in the decision:
This is a quo warranto proceeding,
in which judgment of custer has been
rendered upon pleadings against re-
spondent Beardsley. The rights of
relator Hume have not been passed
upon and he now insists that upon the
pleadings and judgment in this cause
and upon the testimony introduced
upon this hearing, he ought to have
decree adjudging him entitled to the
Office.
1t appears that the relator CIu1ne)
was nominated by the mayor of Ogden
City for the office of city auditor upon
different nominations before and since
the expiration of the term of Office OF
respondent (Beardsley); but that since
such last rejection no person has been
nominated by the mayor to fill the
office of city auditor. There is testi-
mony tending to show that the re-
lection by the city council Of the nom
ination of the relator was not because
he was considered incompetent, or for
any other personal objections to the
relator; but, as relator insists, for the
purpose of compelling the mayor TO
either nominate the respondent or some
other person selected by the city coun-
Gil II also appears that since the
rendition Of the judgment of this court
declaring the Office of city auditor for
Ogden City vacant, and since the al
firmatiOn by the supreme court afflrm-
ing such decision, the city council I'M
dertook, by resolution, TO employ re-
spondent as city auditor, which reso-
luton was vetoed by the mayor, and
the veto being sustained, the city c0uh-
Gil thereafter, by resolution, employed
the respondent as clerk or agent to
perform the duties Of city auditor,
which resolution was also vetoed by
the mayor. and thereafter again passed
by the city council over such veto.
THE MOST IMPORTANT QUESTION
in this supplementary proceeding is
whether relator (Hume) under the
facts in this case is entitled to the
office of city auditor. Counsel for re-
lator maintains that by reason of the
continued refusal of the city council
to confirm the nomination OF reiator
the mayor is relieved from the neces-
sity of having such nomination and
confirmed. Upon deciding
the demurrer in this case l said upon
that point:
"While 1 admit that the case of the
State VS.. Tate (6S N. C. 546) seems
to the claim made, yet
think that it is well established that
where an appointment is made sub
iect to confirmation by a coordinate
branch of the government, no appoint
ment can become effectual and fixed
until sucn confirmation has been made,
Yet, on the other hand, l cannot see
the force of the argument that per-
son cannot rightfully exercise the func-
tons of an office where a vacancy ac-
tually exists, and such person is ap-
pointed by the proper authority tenn
porarily, pending such confirmation or
rejection, to perform the duties of
such office"
The court further quoted from his
decision in the demurrer wherein he
dismissed the action so far as members
of the city council was concerned and
wherein he emphasized the fact that
the complaint failed to show-so far
as certain paragraphs, afterwards |
struck out, were concerned-that the |
Beardsley) wrongfully |
us1rps or exercises the office of au-
ditor
Continuing, he said: while for the
purpose of passing upon the demurrer |
n this case 1 did not deem it necessary
10 pass upon the rights of the relator |
to the office, | am of the opinion that |
1pon the facts in this case the court |
cannot render judgment for the re- |
ator''
The court then quotes the law bear
ng upon the subject, and proceeds to
show that
HUME NOR BEARDSLEY
holds the right to the Office.
'The laws of this state Qaws of 1892,
page II, section 81 provide:
'"That hereafter the mayor shall ap-
point by and with the advice and con-
ent of the counsel, all officers who
ire now made appointive by said coun-
Ill"
The officers then made appointive in
titles of the first and second class were
he city attorney, surveyor water
master, sexton, supervisor of streets,
.uditor and such other officers or
gents as may by the city council be
Ieemed necessary or expedient. Com
'iled laws, section 1859
cit seems clear to me that under
he provisions of section 3 the appoint
nents cannot become effective in the
ace of the direct refusal on the part
f the city council to confirm the
mayors nomination.
However, whereas in this Casa
acancy occurs by the happening of
ONE event by reason of which the
uties of the Office are no longer dis
harged, / see no reason why the
mayor cannot during the recess of
he council, appoint some person to fill 4
ne office and perform the duties pend
lg the confirmation or rejection of
UGH person. (Meacham on public Of
GERS, section 134.) But if, after sub
hitting such appointment to the coun-
il for their advice and consent, such
erson should be rejected, I apprehend
ne vacancy would again result as
ompletely as if such appointment had
ever been made. The right to fill .
he office of city auditor does not ex-
It solely with the mayor or solely !
nth the city council.