8 Utah 294 | Utah | 1892
The plaintiffs, as trustees of the Agricultural College of Utah, made application for an alternative writ of mandate against the defendant, as auditor of public accounts for the Territory, to draw his warrant on the territorial treasurer for the sum of $65,000 in favor of the treasurer of the board of trustees, or show cause why he should.not do so. The writ was issued and the application was after-wards amended so as to apply only to one-fourth of said sum, in accordance with the provisions of § 26, c. 3, p. 253, 1 Comp. Laws, which requires that for all appropriations of more than $5,000 the auditor shall issue warrants for the same in equal quarter-yearly installments. The members of the board of construction named in the. act making the appropriation intervened in the action, and prayed that the mandate for the warrant be awarded to them as members of such board. The plaintiffs demurred
The application and affidavit of the plaintiffs for a writ of mandate against the defendant, Arthur Pratt, auditor of public accounts, set forth that they are the duly appointed, qualified, and acting trustees of the Agricultural College, a public educational institution, organized under the laws of Utah Territory, having been duly nominated and appointed by the governor of said Territory as such trustees by and with the advice and consent of the legislative council of said Territory, prior to the demand for a warrant for the funds in controversy; that as such trustees they have duly organized and elected William S. McCornick president, and have appointed a secretary and treasurer, who have duly qualified as such officers; that by the laws of Utah the said trustees are authorized and required to take charge of the general interests of said institution, and to have general control and supervision of all appropriations made by the Territory for the support and maintenance ■ of the same, and to have supervision of the ■erection of the college buildings, and to make all contracts and purchases for,said buildings; that said college has been duly organized, and has buildings and grounds at Logan, ■in Cache county; that the legislature of the Territory, by ■an act approved March 10, 1892, entitled “An act making ■appropriations for general purposes,” made an appropriation for the Agricultural College, as follows: “Sec. 5. For the Agricultural College of Utah, buildings, the sum of $65,-000.00; which sum shall be expended by and under the
The Agricultural College was organized under an act of the territorial legislature approved March 8, 1888 (1 Comp. Laws 1888, p. 663). The act placed the business and financial affairs of the college in the hands of a board of seven trustees, and gave this board general control and supervision of the college, the farm connected with it, any lands which might be granted or donated to it by the Territory or by Congress, all appropriations made by the Territory for its support, and the supervision of the erection of the college buildings, and provided they should make all purchases and contracts for the buildings. Section 3 of this act (1 Comp. Laws, p. 664) provides that “the governor and secretary of the Territory, and the assessors of the counties of Cache, Davis, Utah, Salt Lake, and San Pete and their successors in office, shall be ex officio trustees for the Agricultural College.” Counsel for inter-veners contend that, inasmuch as it is not pretended that either of the plaintiffs is governor or secretary or assessor of any of the counties named, and that as the court can at least take, judicial notice of the fact that-neither of the plaintiffs is governor or secretary of the Territory, therefore the plaintiffs can have no standing in court. But it is alleged in the affidavit on application for the writ that the plaintiffs were appointed by the governor, and confirmed by the legislative council, and are the qualified and acting trustees of the college, and these aver-ments are admitted by the demurrer.
The governor and legislative council seem to have assumed that § 3 of the act of 1888 was invalid, in so-far as it provided who shall fill the offices of trustees of the college, and to have acted on that assumption. Section
. We also think that § 3 of the act establishing the college, so far as it designates the persons who shall be trustees, is in contravention of § 7 of the .organic act, and to that extent is invalid; but so far as it establishes a board of trustees for the college, to be appointed by the governor and legislative council, it is valid. People v. Clayton, 4 Utah, 421, 11 Pac. Rep. 206; Clayton v. Utah Territory, 132 U. S. 632, 10 Sup. Ct. Rep. 190.
It is contended by counsel for the plaintiffs that the members, of the board of construction provided for by the fifth section of the appropriation act of 1892 are officers, and must be appointed by the governor, and that so much of the act as appoints them, and makes it their duty to expend the appropriation, is invalid, while that part of the section making the appropriation is valid, but that it must be expended by the trustees; while counsel for interveners insist that the board of construction are not officers, but merely agents or employes, but that, if it shall be held they are officers, then they must be appointed by the governor in lieu of those named in the act, and that until such appointment shall be made by the governor there is no one who is entitled to draw and expend the money. In Clayton v. Utah Territory, supra, it was held by this court, and afterwards affirmed by the Supreme Court of the United States, ubi supra, that the legislature of the Territory had the power to create the offices of auditor of public accounts and treasurer of the Territory, but could not provide the mode of their appointment. So in this case the legislature has authority to create a board of con
One who hold's an office is an “ officer,” and it becomes necessary to ascertain what is, properly considered, an “office.” The definitions of the term “office,” as given by the text writers and courts, are not in entire harmony, and we cannot refer to and discuss all the definitions given, but will content ourselves with noticing a few of the more leading authorities on the subject: “'Offices’ are a right to exercise public or private employment, and to take the fees and emoluments thereunto belonging.” 2 Bl. Comm. 36. “'Offices’ consist in a right and a corresponding duty to exercise a public or private trust, and to take the emoluments belonging to it.” 3 Kent, Comm. 454. “ Officers are public or private, and it is said that every man is a 'public officer’ who hath any duty concerning the public, and he is not the less a public officer where his authority is confined to narrow limits, because it is the duty of his- office and the nature of that duty which makes him a public officer, and to the extent of his authority.” 4 Jack. Dict. 433. “A 'public office’is an agency for the state, and the person whose duty it is to perform this agency is a 'public officer.’ This we consider to be the true definition of a 'public officer,’ in its original broad sense. The essence of it is the duty of' performing an agency; that is, of doing some act or acts, or series of acts, for the state.” State v. Stanley, 66 N. C. 59. A clerk in a department of the government has been held to be an officer. U. S. v. Hartwell, 6 Wall. 385; also Vaughn v. English, 8 Cal. 39. Persons author-
In the present case the interveners allege they, “as members of such board of construction, duly qualified by giving a bond and taking the official oath required by law,” and in the present case it would seem the legisla: