172 P. 701 | Utah | 1918
The petition of plaintiff, in substance, shows: That plaintiff on the 6th day of August, 1917, was duly appointed to the office of city marshal of Eureka City, Juab County, by the mayor thereof; that said appointment was duly confirmed by the city council of said city; that plaintiff duly qualified by taking the oath of office and giving bond; that said appointment was made to fill a vacancy in said office, and that plaintiff has ever since continued to act as such officer and is now fulfilling the duties thereof; that defendant on the 18th day of February, 1918, was and now is the duly elected, qualified and acting mayor of said city; that on the 1st day of February, 1918, defendant, as mayor of said city, presented to the then city council of said city the name of one Minor Peterson for appointment as said marshal; that said city council refused, and ever since has continued to refuse, to confirm said appointment, and no other appointment to said office has been made other than the appointment of plaintiff aforesaid; that plaintiff continued to perform the duties of such office during the month of February, 1918, and at all times since his appointment; that at the time of his appointment the salary of said office was and is now $135 per month; that plaintiff received said amount per month as salary from
Said application was filed on tbe 15th day of March, 1918, and an alternative writ of mandamus issued thereon commanding tbe defendant, as mayor of said Eureka City, to recognize plaintiff as said city marshal of said city, and countersign said warrant, as required by the ordinances of said city, for the payment of plaintiff’s salary for the month of February, 1918, or to show cause at the time stated in said writ why he has not done so.
The defendant appeared in response to the writ, and filed a
It was thereafter stipulated by the parties, for purposes of demurrer, that the following facts should be considered as a part of the petition: That plaintiff was appointed city marshal of Eureka City January 7, 1916, at, a salary of $100 per month; that on July 27, 1917, the city council of said city passed an ordinance raising the salary of city marshal to $135 per month, becoming effective the 4th day of August nest following; that on August 3d plaintiff resigned said office, and on the same day was hired by the mayor as acting marshal of said city; that on the 6th day of the same month he was appointed such marshal to fill the vacancy created by his own resignation; that under said appointment of August 6, 1917, he filed his bond in the sum of $2,500, a copy of which is attached to the stipulation; that said bond has never been approved by the mayor; that the city ordinances of Eureka provide that before entering upon the discharge of his duties the marshal shall file a bond with the city in the sum of $2,500, to be approved by the mayor-; that plaintiff has filed no other or additional bond than the one a copy of which is attached to the stipuation; that on the 4th' day of February, 1918, the defendant, as mayor, gave verbal notice to the plaintiff that his term had expired as city marshal, and that he was no longer to be recognized or receive compensation as such.
The right of plaintiff to hold the office in question, perform the duties and enjoy the emoluments thereof, prior to August 3,1917, when he resigned, is not made an issue in this proceeding. Whether or not defendant seriously questions the right of plaintiff to resign under his first appointment, when the salary was only $100 per month, and accept an appointment a few days later, when the salary had been increased
The next point presented by appellant’s brief is that plaintiff under his second appointment, or the appointment now in question, filed his bond with the city recorder, but that the bond was never approved by the mayor. It is also claimed that the bond so filed was defective in form
It is contended by plaintiff, and we think with reason, that while the words used in the bond are not exactly the words of the statute, yet, in substance, they cover and include all that the statutes require. Certainly if the plaintiff well, truly, and faithfully performs all the duties enjoined upon him by virtue of his office, he would pay all moneys received by him under the law and the ordinances, and the obligors on such bond could undoubtedly be held for any default of the plaintiff in this regard. As supporting the proposition that a substantial compliance with the law as to the form of the bond is sufficient, counsel for plaintiff call our attention to the following authorities: Mechero, on Pub. Officers, section 268, at
The objection is also made by defendant that the official bond filed by plaintiff was not approved by the mayor. It is, however, conceded that it was filed by the plaintiff, and that ever since his appointment he has continued to perform
Neither djd the fact that the bond expired December 31, 1917, justify the assumption that he had forfeited his right to the office to the extent at least of relieving the city of the obligation to pay for his services. Under the admitted
Finally, it is contended by defendant that chapter 125, Laws Utah 1911, p. 228, provides that the term
Our attention is called to the fact that the same section 213 above referred to provides that elective officers hold their offices during the term for which they are elected and until their successors are elected and qualified. From this distinction in the language of the statute concerning the appointive and elective officers referred to in the section, it is argued by defendant that the law does not contemplate that the city marshal in a city of the third class shall hold over after his
In addition to this, it is contended by plaintiff that it is a general rule of law that an incumbent of a public office will hold over after his term expires until his suecessor
"In the absence of any restricting provision of statute, municipal officers hold over until their successors are elected and qualified. ”
So that, even if there were no positive statute authorizing it, the general law seems to be that such officers are entitled to continue in office, perform the duties thereof, and receive the compensation therefor until their successors are appointed and qualified. Besides this, the interests of the public demand that public offices be filled and the duties thereof performed. This is recognized by the authorities as the fundamental reason for the hold-over principle. 1 Dillon, Mun.
This doctrine, declared by the authorities referred to, reflects the law applicable to cases of this kind.
For the reasons above stated, the demurrer of the defendant filed in this case should be overruled and judgment entered for the plaintiff. It is therefore ordered that a peremptory writ issue to the defendant, as mayor of Eureka City, commanding him to recognize the plaintiff as city marshal of said city, and to countersign the warrant issued to him in payment of his salary for the month of February, 1918. Defendant to pay the costs of this proceeding.