The Salt Lake tribune. [volume] (Salt Lake City, Utah) 1890-current, 1907-03-23
His Resignation From Ogden
Council and Reinstatement a
Trayesy on Justice.
STATE SUPREME COURT
SPEAKS PLAIN WORDS
The Paying Back of Illegal Fees
Could Not Atone for
Violation of Law.

| Robert Il. Paine, member OF the
Councilmanic body of Ogden City, will
have to vacate that position and come
within the law, according TO an opin-
ion handed down by the Supreme Court
| Friday IN the case of J. D. Skeen
against the Councilman. The case was
tried before Judge J. A, Howell. The
charge against Paine was receiving IL
legal fees and wilful neglect of duty,
Paine admitted receipt of the fees, but
urged that he repaid them, After the
institution of the proceedings he re
signed his Office as City Councilman
and he was Immediately reappOlnted by
the Council and this the Supreme Court
characterizes a "travesty Of both law
and Justice
No evidence or admissions were given
or made upon the second cause for re-
moval Paine was found guilty of re-
ceiving illegal fees and not guilty of
the other charge, the court instructing
the jury TO do so.
Paine demurred to the complaint on
the ground that it stated two causes
of action as one cause This demurrer
was overruled. He offered to prove,
besides the fact that he paid back the
fees, previous good character and in
tegrity, but the court refused to allow
him to do so.
The overruling of the demurrer and
refusal to permit him to prove previous
good, character are cited as errors.
Did Not Atone.
The Supreme Court holds that in
paying back the money he only made
restitution of that TO which he never
had legal right, and thus made good
losses TO the public; but the act of re-
payment did not and could not atone
. Ill, L..
ing illegal fees. 1t was therefore no
defense, The Supreme Court also holds
that the lower court did not err in
overrullng the demurrer for the rea
son that it instructed The Jury to return
verdict of not guilty on the second
charge made against Paine, and hence
took that matter entirely out OF the
hands of the jury.
On the question of Paine's farcicial
resignation the Supreme court is par
ticularly emphatic and says; "We
have no hesitancy in stating that tho
object of the statute is clearly for the
purpose only of removir- officials who
disregard or violate the law, and that
where the official resigns office and thus
removes himself. the whole purpose of
the statute is accomplished. But the
law deals with matters of substance
and not mere form. IL an official.
member of board or body, in which
Is vested the power to fill vacancies |
can, when his derelictiobs are discov-
cred. resign and be at once reinstated
IN his former position, and thus escape
the effects of a violation of positive
law then the statute giving the right |
of removal might as we'll be repealed.
If such can be done and the continuity
of an incumbent can be thus broken,
then the statute is; IN effect, repealed;
at least, it is made ineffec tual, which
the record discloses that the appellant
resigned and at the same meeting of |
the city council and before transacting
any business, the remaining members |
forthwith appointed him to fill the va.
cancy caused by his resignation.
Not Surrender of Office.
'This did not constitute surrender
of the Office which would arrest a pro-
ceedlng instituted to remove from the |
continuity Of the term, True, the ap- |
pellant would have to requalify, but |
all this was mere matter of form and |
to tolerate such proceedings and per-
NIT them to stand rs defense would |
indeed be a travesty of both law and |
Justice. We are CLEARLY of the opinion |
that the court did not err in this re-
gard -
On the constitutional question that |
prosecution must be made in the name
of the State and not in the name of a
private person, the court holds that
the special constitutional provision per-
tanning to the removal from office of |
officers not to be removed by impeach-
ment is overlooked. Section 81, article
6 of the Constitution among other
things provides that such removal may
be made ''in such manner as may be
provided by law.
Judgment of the lower court is af-
frmed with costs. Justice Frick wrote
the opinion, and it is concurred in by
Chief Justice McCarty and Justice
Straup.