| Utah | Jan 15, 1892
From the agreed state of facts in this case, it appears that, at the August election at Salt Lake county, occur'ring m 1884 and 1886, one N. Y. Jones was elected collector of Salt Lake county. Jones resigned this office to the county court in November, 1886, shortly after his second election and before the expiration of his first term, without qualifying; whereupon the county court appointed Leonard G-. Hardy, the respondent, as such collector, for the unexpired term; “also for the term commencing June 1, 1887, and until his successor should be
Hardy qualified under each appointment, according to law, and entered upon the duties of his office. At the August election for the year 1887 said Hardy was elected collector, and qualified in June following. No one was voted for or elected collector at the election provided to be held in August, 1888; but in August, 1889, Hardy was again elected collector, and duly qualified. After each appointment and election Hardy received his regular commission from the governor. At the regular election in August, 1890, no one was elected collector. At the election held in August, 1891, three candidates were voted for. The appellant, A. L. Williams, received 4,420 votes, that being the highest number of votes polled for any one candidate, and A. L. Williams was declared elected, and received his commission from the governor of Htah Territory, after which he duly qualified as such collector, and demanded possession 'of the office, which respondent, Hardy, refused to yield; whereupon this 23i’oceeding was commenced to test Hardy's title to this office. The relator now contends that the election of Williams in August, 1891, was valid-for the balance of the unexpired term of this office, which commenced June 1, 1891, and which would expire June 1, 1893; that Hardy's appointment in June, 1S87, gave him the right to hold until the next general election in August,- 1887, and that his election in August, 1887, gave him the right to hold until June, 1889, when the office became vacant; but, there being no election in 1888, Hardy would hold over until June, 1891, and that Williams’ election in August, 1891, gave him the right to the office for the unexpired term ending June, 1893. Eespondent, Hardy, .contends that his appointment by the county court, in 1887, confers upon him a right to hold the office until his successor is duly elected and qualified; and that, under the statute, the election held in
Tinder the agreed facts, the question arises, was the election of Williams, in August, 1891, and the election of Hardy, in August, 1887 and 1889, authorized by law? Was there any vacancy in this office in June, 1891, that could be filled except by an election held in August, 1890, or by appointment of the county court? Section 2018 creates the office of collector, and provides that such collector shall be elected at the general election in 1878, and biennially thereafter; that his term of office shall be for two years, and until his successor shall be duly elected or
The county court haying the power to appoint and haying appointed Hardy to fill the vacancy then existing, the appointment would necessarily continue for the full term to June 1, 1889, and would not be affected by the election of Hardy in 1887, at a time when such election is not provided for by law. The time for the election occurs, under the statute, every two years, but no election was held, in August, 1888, or 1890; consequently Hardy’s term continued, , under the statute, until his successor was elected or appointed and qualified. The right to hold over until the successor is legally elected and qualified is as. much a part of his term of office as the regular period prescribed by statute, so that the length of his term depends upon the election of his successor. There can be no actual vacancy as long as the rightful occupant continues to hold office, — that is, until death, resignation, removal or some legal disability occurs. This provision is a proper one, and is so provided in order that vacancies in office may not occur from a failure of the people to elect at the regular general election fixed by the statute for that purpose. The result necessarily follows that a failure to elect at a period fixed by the statute creates no vacancy in the office, but imposes a right and a duty upon the incumbent to continue in office until his successor is legally elected and qualified; and this right falls upon the incumbent the same whether appointed or elected. In other words a person appointed to fill a vacancy in the office of collector can only be superseded by one
It is not' claimed that Mr. Williams was elected until August, 1891, and,' as we have seen, at a time when no election for this office could legally be had under the statute. The statute provides that a vacancy shall be filled by appointment until the next general election. At the next general election in 1888, and in 1890, the office should have been filled for the full term of two years; but no election was held, and there was no vacancy that could be filled by appointment, because the appointee was still there holding the office, and no one had been elected to take it. Paine on Election, § 227, says, “that if there was a vacancy in any just sense, after the expiration of the term, and before the election and qualification of a successor, the statute itself fills the vacancy by providing that the incumbent shall hold until the election and qualification of a successor, and that a failure to elect a successor to an office at the expiration of his term does not create a vacancy to be filled by appointment. * * * The incumbent holds over for an indefinite period if no successor be electéd and qualified.” There was no vacancy in the office to be filled at the time it is claimed the relator was elected, in 1891, and there was no authority to hold an election at that time for this office. The law had filled it with an incumbent who took and held it from June 1, 1891, because there was no other legal claimant. The incumbent had entered upon a legal term of two years, from June 1, 1891, and will hold until his successor is elected at the general election in August, 1892, unless a legal vacancy