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

any subterfuge can appoint person to
perform the duties of an Office under
the name of a clerk or agent, and in
this manner aIeteGnpt to evade the
plain provisions Of the statute
in this case; also the strict dfrec tions of
a Judgment
1t is claimed in this case that suca
appointment has been made under sec
ton 1853, compiled laws, authorizing
city councils 10 appoint certain officers
and agents so far as this Office in dis
pute is concerned, at all events.
(And l doubt not 1T applies to all
persons named in section 1863 that sec
ton has been superseded in cities of the
first and second class by section 8,
page Z, laws of 1892, empowering the
mayor by and with the advice and con-
sent of the city council, to appoint all
officers heretofore appointed by the
city council.
THERE is A VACANCY
in the office of city auditor of Ogden
city, and it is absolute when the term
of an incumbent having expired and
the latter not having neld over no sue
cessor is in being who is not legally
qualified to assume the Office (Me-
chem on public officers, section 1861
1t is vacant in the eye of the law
qualified incumbent who has a lawful
right to continue therein until the hap
penfng of some future event" (Me-
chem on public officers, section 1863
1t is true that the city council has
urogated to itself the power to appoint
a. person TO fill each office without
awaiting the nomination by the mayor
But as aptly expressed by our supreme
court in the present case when before
i,, III Ill
a sovereignty. 1t can only exercise the
powers conferred upon it by the legis-
lature. 1t must act within the limits
named in the statutes, and not con-
trary thereto, or beyond that
Whatever authority the city council
may attempt to besItow upon a person
by reason of the passage of such
AN EXTRAORDINARY RESOLU-
TION
would be as void as if the county court
CT any county should attempt to fill a
vacancy in the office of district judge
by employing some other person under
another name to perform the duties of
such judge within the county.
The action of the city council can
mean but one thing, and that is a
DIFFERENTIATION TO OVERRIDE
the plain provisions of the statute and
to expose the public to onWenience
of having the acts of such appointee
declared illegal and void-aS clearly
they must be. But these actions of the
city council do not tend TO improve the
claim of the relator to the Office. The
mere rejection of any one person nom
mated by the mayor to hold the Office
in and of itself would not demonstrate
any desire to keep the Office vacant. 1t
is time enough to discuss that ques-
ton when. after nominations submit
ted by the mayor have been so per-
refused that 1t would amount
to G. demonstration that they intended
to keep the office vacant In that event
1 have no doubt that the power of the
court can be invoked to prevent the
of having a public office re-
main vacant during the pleasure of the
city council. The Office, however, is
now vacant. and only the mayor by
and with the advice and consent of
the city council can fill the vacancy.
The city council having rejected the
of the relator, the Office
must remain vacant until the mayor
again appoints a person to fill that
office, and such persons right to per-
manently perform the duties of that
office depends in turn upon the action
Of the city council.
There We're other reasons urged why
this court should decline to give judg-
ment in favor of relator, but upon these
grounds decline to give Judgment.