Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1899-03-13
Supreme Court Decision in Thore-
sen VS. Board Of Examiners.
FUNCTION OF BOARD DEFINED


The supreme Court delivered an Inn
portani opinion today In the tost case
Of !. O.. Thorcson W The state Board
OF Examiners affirming the judgment
OF the lower court also defining the
function Of the board.
The plaintiff In this case pctitioned
the Third district court for a writ of
mandate requiring tho state board n
examiners to audit aud allow n claim
for 1850. paid by plaintiffs asslgnof
to the county clerk " Cache county
under the provisions N chapter 70 u
the Session Laws ~ 1899. which pro.
vidcd for the leasing ~ school lands by
county courts and which In the case ~
burrows W Klmball was held to be-
nun and void.
In the years isei-2.a numerous par.
ties under the law. leased certain
school lands ~ various counties u the
state. Later the law authorizing the
leasing Of the land was held 10 b. void.
for the reason that the title a. the lands
WAS at that tlmr vested In the general
government. In pursuance ~ the leases.
occupants OF the land paid rentals to
county clerks. 20 the credit of the Ter
ritoriai treasurer The second State
LEGISLATURE passed law authorizing
the rcfundinE uf the rent money 20
paid. at the same time making II the
duty NJ the state board TO receive.
audit aud allow al Just claims Of per-
sons. who had paid the rental.
The defendant board demurrcd 10 the
petition on the ground that the Re-
viped Statutes clothed the board with
judicial power In the matter of pass
lea al .ata ~ .aiuAfaNH that that
part ~ the rental money had reached
the state treasury. having been used
for the survey and other cxpenncH con.
nectcd with the leasing ~ the land.
Judge cherry granted the writ prayed
TOT, when the defendant board APP
Justice liarkin. who delivered the
opinion holds that In the light Of the
stipulated facts. there can be- no doubt
but what any sum paid BY the lessee 10
the county, on a lease made In purHu-
ance u that void act Of the icrisla-
tur-. IL n Just claim within the mean
ing Of ,hos. terms, aa used IN section
ac1 ~ the Revised Statutes, and that
the provisions ~ that section. direct
Ing the board to receive, audit and al
tow all claims for such payments. l.
mandatory and not discretionary with
the board.
The court further holds that the
board had no authority 10 reject pur-
ton of Thorcscn's oinim, ON account 81
a part only OF the money paid reach
INK the State treasury.
on the question % the school money
being used contrary 90 section Z, arti-
Gle 10. ~ the state Constitution, the
court holds that the decision ~ such
a question by the board was the ex-
-rrise Of a judicial function ami fur
,hcr holds that no judicial power was
ever conferred upon II. Continuing
To-. Ia
The boards discretion and duty
In the promises was con-
fined to the aHcertainmcnt Of what.
" any, amount tho rclhtorH' nnAignur
had paid In pursuance 81 the act ~
1899. The amount 20 paid the board
has admitted In the agreed statement
Of facts. n had no greater personal In
iE-n " the state. tn. parties alone
affected are the State and the benc-
nciarlor mentioned In section asi OF tho
Revised Statutes.
""'- allow mere ministerial officers,
who have no direct personal interest
In the matter. 10 refuse 10 perform an
act clearly pointed out. and made their
official duty bv statute, on the ground
that the performance ~ tho act would
violate the Constitution. would be- -.
tnhlishinF a very dangerous precedent
ana not warranted by the authorities.
II would he deciding u constitutional
question affecting the rlEht, ~ third
parties. nt the Instance ~ officers
whose duties are merely ministerial.
and who have no direct interest IN the
question, ANA cannot In any event be
made responsible. We are 81 tho
opinion that this ground NJ objection
furnishes no excuse for the failure 81
the board 10 perform q plain minis
terial duty prescribed by a legislative
assembly N the Stntc. and that We arr
not authorized 90 pass upon tho Com
stitutinnal question ~ raised In the
proceeding by mnndnmua,"
The court then directs an nnlrma-
tinn Of tho lower court'n Judgment.
The opinion IL concurred In by chief
Justice narteh and District Judge
Mccarthy.
The effect N this decision VIII be
the refundlng ~ aboutti 500 TO residents
u Cache county alone. and II N rrn-
Honahly certain that other counties viii
now be heard from.
nHnled