State ex rel. Ipson v. Woolfenden

72 P. 690 | Utah | 1903

BAETCH, J.

In this case the plaintiff filed an information in the nature of quo warranto praying that the defendant be ousted from the office of treasurer in and for Beaver county, and that the relator be declared entitled to the office, and put in possession thereof. It appears that at the election held November 4, 1902, the offices of assessor and treasurer of Beaver county were to be filled by election. The two offices were placed on the ballot as consolidated into one office so as to be filled by but one person, and the name of the relator appeared on the Democratic ticket and that of the defendant on the Republican ticket. Both were candidates for the offices so appearing and being treated as consolidated, each, name being bnt once on the ballot. Neither during the campaign, nor at any time prior to the election •nor on the occasion of the election did either of these candidates, or any other voter, make any objection to the form of the ballot. The ballots so constituted and representing the offices of assessor and treasurer as united were cast by the electors without objection. At the close of the election they were canvassed, and the' canvass and returns showed that the relator had received a majority of the votes cast for the office of assessor and treasurer. A certificate was then issued to him, showing that he was duly elected to such office. Thereafter, on January 5,1903, the relator, having duly •qualified for the office of assessor and treasurer, demanded the possession of the office .of treasurer from the defendant, who was holding and then claiming the right to retain the latter office by virtue of his election to the same at the election held in November, 1900. The demand was refused on the ground that no successor to the office of treasurer had been elected. Thereupon these proceedings were instituted to oust the defendant from and induct the relator into the office. At the trial the court entered judgment of ouster' against the defendant, and inducted the relator into the office. The correctness of that judgment is now challenged in this court.

The appellant through his counsel, in the first instance, contends that under our statutory provisions relating to the consolidation of certain county offices one individual cannot hold and perform .the duties of two such offices simultaneously in the absence of consolidation; while counsel for the respondent insist that the ‘ ‘ laws of this State do not prohibit the same person from holding” and discharging the duties of “two county offices, except in cases where the offices have been consolidated, ’ ’ or where, by ordinance, the county commissioners have otherwise specially provided; and that, unless otherwise ordained by such commissioners, the right of one person to hold two such offices exists the same as at common law.

The statutory provisions, so far as material here, 1 are found in sections 542 and 543, Revised Statutes 1898. Section 542 reads: “In counties where the board of county commissioners, by proper ordinance shall so elect, the duties of the above mentioned officers may be consolidated in such manner as the board may decide; and in counties where the duties of said officers have been or may hereafter be consolidated, the board of county commissioners thereof, by proper ordinance, may elect to separate the duties so consolidated and re-consolidate them in any other manner, or may separate said duties without reconsolidatiop and provide that the duties of each office shall be performed by a separate person, whenever, in their discretion, the public interest will be best subserved thereby; provided, that no such ordinance shall be passed to take effect within less than three months after the passage thereof, and every such ordinance shall take effect on the first Monday of January next succeeding a general election.” This section confers discretionary power upon the board of county commissioners in each county to consolidate, by ordinance, the duties of the county officers mentioned in section 541, which immediately precedes this one. So, like power is conferred upon such board to separate such duties, after they have been consolidated, and re-consolidate them, or separate them without reconsolidation, whenever and in such manner as it may deem proper for the public interest; but no such ordinance can take effect within less than three months after its passage, while every such ordinance must “take effect on the first Monday of January next succeeding a general election.” It is clear from these provisions that, whenever the duties of such officers are not consolidated, they must be regarded as separate and distinct.

In section 543 it is provided: “When offices are united and consolidated, but one person shall be elected to fill the offices so united and consolidated, and he must take the oath and give the bond required for and discharge al] the duties pertaining to each. ’ ’ Here is an express provision that, when offices are consolidated, hut one person shall be elected to fill all such combined offices, and he must discharge all the duties of each office in the consolidation. It follows ¿hat by implication the converse is equally true — that, when such offices are not united, each office must have one incumbent. Such was doubtless the intention of the Legislature. The evident object of the lawmakers was to have one incumbent for each county office, except in case two or more offices should, in the discretion of the board of county commissioners, be united as provided by the statute, or unless they should make some other provision. In such board is vested the exclusive power to determine when two or more such- offices shall be filled, and the duties united and discharged by one individual.

From these considerations, we are of the opinion 1 that under our laws one person cannot, in the absence of consolidation by the board of county commissioners, hold and discharge the duties of two or more county offices simultaneously.

Notwithstanding the fact, however, that in the 2 absence of consolidation as provided by the statute one person can hold and exercise the functions of but one county office within this jurisdiction, the question remains, does the record show the appellant entitled to continue to hold and discharge the duties of the office in controversy, and consequently that the court erred in inducting the respondent into it? We think not. As disclosed by the record, it was shown on the part of the respondent that he was nominated by the Democratic convention for the office of assessor and treasurer, and his name placed upon the Democratic ticket for such office; that the appellant was nominated by the Republican convention for the same office, and his name placed upon the Republican ticket; that in like manner both of their names appeared upon the ballots, and the offices of assessor and treasurer, for which they were both candidates, appeared thereon as united or consolidated; that the ballots so constituted were voted by the electors and canvassed without any objection by either of the candidates, or, in so far as appears from the record, by any elector; and that the .respondent received a majority of the votes SO' cast. There is nothing to show that prior to or at the time of the election any person made any objection whatever, either to the conduct of the election or the regularity or legality of the ballots. Not until after defeat at the election and demand for the office in dispute, did the appellant question the lawfulness of the consolidation of the offices, or the validity of the election by virtue of which his opponent claimed title to the office of treasurer. Nor are there any charges of fraud or corruption made as to the election proceedings. Clearly, these facts and circumstances were sufficient to constitute a prima facie case in favor of the respondent, and to justify the inference that the board of county commissioners, on whom, as we have seen, the law confers the exclusive discretionary power to act in such matters, had united or consodidated the offices' of assessor and treasurer. Such commissioners being public officers, the presumption is that, when they acted in the line of duty, they acted in accordance with the forms prescribed by law, and hence that their official acts are- regular. The presumption is always in favor of the official acts of public officers, and it will not be presumed that what was done officially by such sworn officers was done irregularly or illegally, or that what ought to have been done by them was not done. The maxim is, “Omnia praesumuntur rite esse acta, donee probetur contrarium.” “The well-settled presumptions of the regularity of 'official action, and that things required to be done have been rightly done, apply here as in other cases. The presumption is,, therefore, that the election has been properly conducted, and that the officers charged with the duty of ascertaining and declaring the result have discharged that duty faithfully.” Me-chera on Public Officers, sec. 219; 23 Am. and Eng. Ency. Law, 364; McCary on Elections, secs. 274, 459; Paine on Elections, sec. 762; Bank of the U. S. v. Dandridge, 12 Wheat. 64, 6 L. Ed. 552; Lessee of Ward v. Barrows, 2 Ohio St. 241; Lesse of Coombs v. Lane, 4 Ohio St. 112; Clark v. Robinson, 88 Ill. 498; Commonwealth v. Kane, 108 Mass. 423, 11 Am. Rep. 373; Miller v. Fay, 40 Wis. 633; Houston v. Perry, 3 Tex. 390; The Tecnmseh Town Site Case, 3 Neb. 267. The burden of proof was upon the defense to rebut that presumption, and overthrow the prima facie case made by the relator. Recognizing this, the defendant, in an attempt to show that the offices had not been lawfully united, introduced testimony to the effect that in the year 1902 the board of county commissioners made a certain order respecting the consolidation of the offices, of assessor and treasurer; that prior thereto there was an individual assessor and an individual treasurer; and that an' entry of the order was made in a certain book of the county records, but that the order was never published in any newspaper. The defendant also offered to prove, but was not permitted to do so by the court, that after the making of the entry of the order on the records the offices of assessor and treasurer were treated by the commissioners and the people generally as consolidated. The evidence on this point disclosed by the record, as well as that offered -and rejected, is vague and indefinite. The examination of the witness who testified upon this subject seems to have been directed merely to the point that, on a certain occasion in 1902, prior to the election of that year, the county commissioners passed an order respecting the consolidation of the offices in question, and that such order did not amount to a valid ordinance, as required where two or more county offices are united. There appears to be nothing in the record to show that at no other time prior to that election was an ordinance passed uniting the offices in dispute according to law, nor that no such ordinance was in existence at the time of the election. The proof, therefore, is wholly insufficient to rebut the presumption referred to and overturn tire prima facie case of the relator, and therefore the appellant cannot prevail in this proceeding. Having arrived at this conclusion, we do not deem it important to discuss any of the other questions presented. There appears to he no reversible error in the record.

The judgment is affirmed, with costs.

BASKIN, C. J., and McOARTT, J., concur.