State v. Elliott, 13 Utah 471

State v. Elliott

13 Utah 471 | Utah | 1896

Bartch, J.:

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, *477at the election held in November, 1895, be was again elected to the same office for another term of two years, and until bis successor should be elected and qualified, the term to commence on the 1st day of January, 1896; that on December 17,1895, the city council, of which said Watson bad been a member, but bad not qualified under bis election in 1895, appointed the relator to fill the vacancy occasioned by bis death; that the relator, who was and is in all respects eligible to fill said office, on December 20, 1895, duly qualified and entered upon the discharge of bis duties, and continued.in the discharge of the same until and including January 2, 1896, when the said council, against bis will, refused to recognize him as councilman, or to allow him to exercise any rights or privileges as such, and thereafter, on January 7, 1896, notwithstanding the fact that the relator was entitled to bold the office, discharge the duties, and enjoy the emoluments thereof until the election and qualification of bis successor, ousted him, and unlawfully appointed the defendant in place of the relator; and that the defendant thereupon, and ever since, unlawfully usurped said office, against the will and protest of the relator. Other facts are stated with considerable minuteness, to show that the relator in entitled to bold and exercise the duties of the office, and that the defendant is an intruder and wrongfully withholds the same. The information then concludes with an averment that at the time of the defendant’s appointment there was no vacancy, and therefore bis appointment was illegal and void, but nevertheless be refused, and still refuses, to surrender the office to the relator, and still continues to wrongfully and illegally bold the same and perform its functions, to the exclusion of the relator, and against bis will. Such are the facts appearing from the face of the information, to which the defendant interposed a general *478demurrer. This demurrer was overruled, and the defendant failing to answer, and electing to rest on the demurrer, the court entered judgment ousting Mm, and reinstating the relator to the office.

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' *479was lawfully elected thereto and qualified. Therefore,whether Watson filled the office as an officer de facto or de jure is immaterial, because in either event there was a vacancy when his death occurred; there being no question as to the existence of the office, and no other claimant.

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: *480“The right to bold over until the successor is legally elected and qualified is as much a part of bis term of office as the regular period subscribed by statute, so that the length of bis term depends upon the election of bis successor. There can be no actual vacancy as long as the rightful occupant continues to bold office; that is, until death, resignation, removal, or some legal disability occurs.” People v. Osborne, 7 Colo. 605, 4 Pac. 1074; People v. Lord, 9 Mich. 226; People v. Bissell, 49 Cal. 407. Whether or not the city council is the judge of the election and qualification of its own members is not involved in this case, the council having passed upon the qualification of the relator by appointing him to fill a vacancy existing in its membership. We are of the opinion that the relator was rightfully appointed to the office in question, and bad the right to discharge the duties and receive the emoluments thereof; that when the defendant was appointed no vacancy existed; and that the appointment of the defendant was ineffectual and void. The judgment is affirmed, with costs.

ZANE, C. J., and Mixee, J., concur.