13 Utah 471 | Utah | 1896
This was a proceeding by information in the nature of quo toarranlo, at the relation of Benjamin T. Lloyd. The information states, substantially, that at the election in November, 1893, one'Joseph M. Watson was duly elected to the office of councilman in Salt Lake City, which is a city of the first class, for a term of two years, and until his successor should be elected and qualified; that thereafter, being in all respects eligible to fill the office, said Watson duly qualified, entered upon, and discharged the duties thereof, until his death, which occurred on the 14th day of December, 1895; that previous to his death,
The principal question raised by the pleadings is whether there was a vacancy in the office at the time of the appointment of the defendant. Counsel for the appellant claim that no election for city officers could have been lawfully held in November, 1893, when Watson was elected, because, as is insisted, that was not the time provided by law; that section 309, Comp. Laws Utah 1888, enacted in January, 1860, fixed the time for holding such elections on the second Monday in February of each even year; that the act of March 10, 1892 (Sess. Laws, p. 28), under which the election in November, 1893, was held, did not apply to Salt Lake City; and that the relator by appointment received no better title to the office that his predecessor had.
In answer to this contention it may be said that even if the election of November, 1893, should be held to have been invalid, it would not necessarily follow that the relator had no title to the office, and we do not deem it material in this case to determine whether or not either the election in 1893 or in 1895 was valid. Watson, whether lawfully elected or not, qualified, entered upon, and discharged the duties of the office from January, 1894, to the time of his death, on the 14th of December, 1895, having been reelected in November, previous. If he had a predecessor, he must have abandoned or yielded the office, for there is nothing to show that Watson’s right to hold it was ever disputed. If his election was lawful, then his death created a vacancy; if unlawful, the abandonment or surrender of the office by the previous lawful incumbent created a vacancy, which could be filled by appointment at any time before a person'
It is also contended by counsel for the appellant that at the time of the appointment of the relator the vacancy could only be filled for the unexpired term, as provided in section 1744, Comp. Laws Utah 1888, and that such term extended only from the time of Watson’s death, December 14, 1895, to January 1, 1896. That section is found in the act entitled “An act providing for the incorporation of cities,” and does not apply to Salt Lake City. Only those sections of that act which are included in section 1817, Comp. Laws, or are made applicable by express (terms, apply to cities of the first class. People v. Page, 6 Utah 353, 23 Pac. 761. The tenure of elective officers in Salt Lake City in two years, and until their successors are elected and qualified. 1 Comp. Laws Utah 1888, § 1762. The actual' length of time, therefore, that such an officer holds his office, depends on when his successor is elected and qualified. So, when a vacancy occurs, and a person is appointed to fill the same, the appointee is entitled to hold the office, not only until the expiration of the two years, but also until a successor is elected and qualified. It follows, therefore, that when a person is elected to office in Salt Lake City, or appointed to fill a vacancy, in either case, after qualifying, he is the lawful incumbent, and entitled to hold the office, as against any other appointee, until, as a result of a lawful election and qualification, a successor appears, or until some legal disability as to the incumbent occurs. This court, in People v. Hardy, 8 Utah 68, 29 Pac. 1118, speaking through Mr. Justice Miner of the term of an officer, said: