Bartch v. Cutler

• Decision Date: 12 July 1890
• Citation: 6 Utah 409,24 P. 526
• Court: Utah Supreme Court
• Parties: GEORGE W. BARTCH, PETITIONER, v. JOHN C. CUTTER, RESPONDENT

24 P. 526

6 Utah 409

GEORGE W. BARTCH, PETITIONER, v. JOHN C. CUTTER, RESPONDENT

Supreme Court of Utah

July 12, 1890

ORIGINAL PETITION for a write of mandate against John C Cutler, clerk of the county court of Salt Lake county. The opinion states the facts.

Writ denied.

Mr George W. Cumming for the petitioner.

Mr Charles S. Varian, U. S. Attorney, for the respondent.

ANDERSON J. ZANE, C. J., and HANDERSON, J., BLACKBURN, J. concurring.

OPINION

ANDERSON, J.

This is an original proceeding in this court, in which the plaintiff prays that a writ of mandate issue herein against the defendant, as clerk of the county court of Salt Lake county, requiring him to issue the plaintiff a warrant on the treasurer of said county for $ 208.33 as salary alleged to be due plaintiff for services rendered in the month of December, 1889, as "superintendent of county affairs." The plaintiff alleges in his petition that he is, and since October 23, 1889, has been, the legal and acting probate judge of Salt Lake county, and, as such probate judge, a member of the county court of said county; that on the 19th day of November, 1889, by resolution of the county court, he was appointed superintendent of county affairs, and that his duties as such superintendent were and are "to have and exercise supervision and control of the public buildings of said county, and of its public roads and bridges, and work done upon the same, the supervision, care and maintenance of paupers and insane persons, including the approval of bonds of county and precinct officers, and examinations of cases of insane persons, and to generally exercise such active supervision over the affairs of the county as is by law required by the county court aforesaid, outside the regular attendance upon the sessions of said court; all of such acts and duties being and to be subject to the order and approval of said court." It is further alleged that the plaintiff's salary as such superintendent was fixed by said court at $ 2,500 per annum, and that, in consideration thereof, he entered upon and has performed his duties as such superintendent from the date of his appointment up to and including the 31st day of December, 1889. It is alleged that "the labors connected with such position are arduous, and are such as are by law laid upon the county court," and that, in performing them, plaintiff has acted "merely as an employe of said court, except in the matter of examination of cases of insanity, and the approval of the bonds of county and precinct officers, and that it is impracticable, owing to the nature of the duties to be performed, to have more than one member of the county court designated to perform said labor." Plaintiff presented to the county court a bill, itemized and verified, for his salary as superintendent for the month of December, 1889, for $ 208.33, which was allowed, and defendant, as clerk of the county court, was ordered to draw a warrant in favor of plaintiff for that amount upon the county treasurer, which the defendant refused to do; and plaintiff prays that a writ of mandate issue out of this court against the defendant, requiring him to issue said warrant. The defendant having been served with notice of the application for the writ, appeared and demurred to plaintiff's petition on the ground that it did not state facts sufficient to constitute a cause of action.

1 Comp. Laws 1888, Sec. 178, provides that "each county shall have a county court, consisting of a probate judge of such county and three selectmen." Section 184 provides that "the county courts must be held at their respective county-seats on the first Monday in March, June, September and December in each year, and oftener if they deem it necessary." Section 187 provides that "the county courts, in their respective counties, have jurisdiction and power under such limitations and restrictions as are prescribed by law." Section 201 provides that "no member of the court must be interested, directly or indirectly, * * * in any contract made by the court or other person, in behalf of the county, for the erection of public buildings, the opening or improvement of roads, or the building of bridges, or for other purposes. Section 204 provides that "all claims against the county presented by the members of the county court for per diem or mileage, or other service rendered by them, must be itemized and verified as other claims, and must state that the service has been actually rendered." Section 209 provides that "the probate judge and selectmen shall each receive from their county $ 4 per day for each day actually employed in attending to business pertaining to the county court, together with the mileage at the rate of twenty cents per mile in going only from their residences to the county-seats at each session of the court attended by them." Section 90 fixes the fees to which the probate judge is entitled for certain specified services, and provides that he shall have, "for any other service not herein provided for, a reasonable compensation."

By the provisions of section 90 of the statute above quoted, it will be seen that for any service rendered by plaintiff as probate judge, where no fee for such service is fixed by law, he is entitled to a reasonable compensation. The claim for such compensation is to be...