Cannon v. Gardner, 16490
| Decision Date | 02 May 1980 |
| Docket Number | No. 16490,16490 |
| Citation | 611 P.2d 1207 |
| Parties | Ted L. CANNON, Salt Lake County Attorney, Plaintiff and Respondent, v. Clair M. GARDNER, Salt Lake County Surveyor Elect, Defendant and Appellant. |
| Court | Utah Supreme Court |
Kent Shearer of Mock, Shearer & Carling, Salt Lake City, for defendant and appellant.
Ted L. Cannon, Salt Lake County Atty., David L. Wilkinson, Chief Deputy County Atty., Salt Lake City, for plaintiff and respondent.
At the general election in November 1978, defendant Clair M. Gardner was elected as Salt Lake County Surveyor. Prior to his taking office, the county attorney initiated this action to enjoin him from doing so on the ground that he was not a registered land surveyor. 1 Pursuant to proceedings not material to detail here, District Judge G. Hal Taylor issued a preliminary, and later, a permanent injunction that the defendant be enjoined from taking office as Salt Lake County Surveyor.
The position of the defendant is that the law does not prevent him from serving in the office of county surveyor to which he was duly elected; and that it certainly does not do so with any such certainty as to justify invoking the extraordinary writ prohibiting him from doing so.
The question as to whether the defendant is entitled to take office as county surveyor depends upon which of two statutory provisions takes priority: Chapter 16 of Title 17, which deals specifically with county officers, including the county surveyor, or Chapter 22 of Title 58, which deals with the licensing of land surveyors.
In approaching that problem, it is well to have in mind that if there is any question as to the interpretation or effect to be given a statute, or as to the preference to be given statutes of similar import, it is appropriate to look to the circumstances of their origin, and their purpose, and also to what has been done in acceptance and practice as to those statutes.
In Chapter 16 of Title 17, U.C.A.1953, the legislature provided for the essential county officers, including commissioners, treasurer, sheriff, county clerk, auditor, recorder, attorney, surveyor, and assessor. It is plainly evident that it took cognizance that most of our 29 counties were, and for the foreseeable future would likely continue to be, sparsely populated rural areas, with few professionals resident therein. Therefore, as a practical matter, it prescribed no professional qualifications for any of those offices, but allowed the voters freedom to choose those they thought best qualified to serve in such public offices. This is expressly shown in that in the first section of that chapter, Sec. 17-16-1 entitled, Eligibility of Officers, they made no requirement for any professional qualification of any of the above-named county officers.
The conclusion we arrive at herein is further supported by the proposition that Sec. 17-16-3 provides that the county commissioners may consolidate the duties of the above-stated officers. It should be clear beyond the need of expression that where the duties of such offices are so combined, it would be impractical to require the specific professional qualifications for the duties of each office.
Another practical consideration is that in Sec. 17-16-7, it is provided that every such county officer may appoint such deputies and assistants as may be necessary to perform the duties of the office. This seems to be based upon the assumption that the elected official may be primarily an administrator, but with the prerogative of seeing that he has personnel qualified to assist him in discharging his responsibilities.
That in fact is what has happened in actual practice. For example, going back at least 20 years in our most urbanized county, Salt Lake, the county surveyor has not been registered as required under Title 58, but has acted as an administrator, seeing that the duties of the office are performed through qualified deputies; and in several of our counties, the presently serving county surveyors are not so registered. To be considered together with what has been said about the history and practical acceptance and application of the statute is the proposition that statutes relating to a specific subject (county officers, including county surveyor) should be given preference over those dealing more generally with the subject (that of licensing all persons who hold themselves out as land surveyors). 2
The fact that the legislature has not intended that county officers, including the county surveyor, must have professional credentials in the field of their respective duties is given further emphasis by the fact that in 1957, our legislature provided that no person should be elected to or serve in the office of county attorney without being duly licensed to practice law. 3 That enactment providing for professional qualifications for the county attorney is significant. It shows that the legislature does not leave the professional requirement to be implied from the mandate of Sec. 78-51-1 et seq., U.C.A.1953, which require that persons practicing law must be licensed. But when it intends that county officials (the county attorney) must have such specific qualifications and be licensed, it expressly so provides as it has in Sec. 17-18-4. The maxim "expressio unius est exclusio alterius" is applicable.
To be weighed against the foregoing are the provisions of Title 58, U.C.A.1953, upon which the trial court issued the injunction. That title deals with the registration of various professional or specialized services from architects, barbers and contractors through the alphabet to psychologists and veterinarians. Chapter 22 of that title deals with engineers and land surveyors. In harmony with what we regard as the general purpose of that title, Sec. 1 of Chapter 22 states that its purpose is as follows:
In order to safeguard life, health, and property, and to promote the public welfare any person in either public or private capacity practicing or offering to practice engineering or land surveying, shall hereafter be required to submit evidence that he is qualified so to practice and shall be registered as hereinafter provided; and it shall be unlawful for any person to practice or to offer to practice in this state, engineering or land surveying, as defined in the provisions of this act, or to use in connection with his name or otherwise assume, use or advertise any title or description tending to convey the impression that he is a professional engineer or land surveyor, unless such person has...
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... ... and the other [specific] in its provisions, the [specific] provision controls."); accord Cannon v. Gardner, 611 P.2d 1207, 1209 (Utah 1980); Floyd v. Western Surgical Assoc., 773 P.2d 401 (Utah ... ...
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