Farrell v. Pingree

• Court: Utah Supreme Court
• Writing for the Court: BOREMAN, J.:
• Citation: Farrell v. Pingree, 16 P. 843, 5 Utah 443 (Utah 1888)
• Decision Date: 18 February 1888
• Parties: WILLIAM FARREL, RESPONDENT, v. JAMES PINGREE, APPELLANT

16 P. 843

5 Utah 443

WILLIAM FARREL, RESPONDENT, v. JAMES PINGREE, APPELLANT

Supreme Court of Utah

February 18, 1888

APPEAL from a judgment of the district court of the first district.

The facts found by the court are as follows:

1st. That at the general election held in Weber County, in August 1884, R. P. Harris was duly elected county treasurer of Weber County, Utah. That he thereafter, and about the first of September, 1884, duly qualified and entered upon the discharge of his duties as county treasurer.

2d. That on the 14th day of February, 1887, R. P. Harris died. That he never prior to his death resigned his office of county treasurer, and was never removed therefrom.

3d. That since his death no person has been appointed to fill said office.

4th. That at the regular general election in August, 1886, the defendant was elected to said office by a majority of the votes cast at said election for said office, and thereafter received a certificate of election and qualified as such treasurer. That he was in all respects possessed of all the qualifications required by law to fill said office. That at some time in the year 1886, and about the month of October the defendant acquired possession of the books, papers and insignia of the office of county treasurer of said Weber County, and from that time down to the present has continued to hold said office and to exercise the functions and receive the emoluments thereof, and to keep possession of the books papers and insignia belonging thereto.

5th. That at the general election held in August, 1887, the plaintiff was elected to the said office of county treasurer of Weber County, Utah, he having received a majority of all the votes cast for said office at said election. That the plaintiff possessed all the qualifications required by law to render him competent to fill said office. That thereafter he received his certificate of election and duly qualified to enter upon the discharge of his duties as such county treasurer.

6th. That before the commencement of this action plaintiff demanded of the defendant that he deliver to plaintiff the books, papers and insignia of said office, all of which were then in defendant's possession. That the defendant refused, and does yet refuse, to deliver any of said books papers and insignia of said office to plaintiff, and he has hitherto excluded plaintiff from said office.

Affirmed.

Messrs. Richards & Rolapp, for appellant.

Harris was not elected for an absolute term of four years, and the duration of his term must be ascertained and determined by law: People v. Brenham, 3 Cal., 487.

The legislature had the power to change the length of the term at its pleasure: Christy v. Board of Supervisors, 39 Cal. 12; Taft v. Adams, 3 Gray, (Mass.,) 130; Hyde v. State, 52 Miss. 665; State v. Douglas, 26 Wis. 428.

The office is subject, at all times, to the will of the power which created it, without any regard to the wishes or convenience of the incumbents: Newton v. Commissioners, 100 U.S. 548; Butler, et al., v. Pennsylvania, 10 How., 402; People v. Squires, 14 Cal. 12; People v. Banvard, 27 Cal. 475; Bulger v. Merrill, 45 Cal. 557.

No matter what his right, it was created by, and entirely depended on, the statute, and when the statute ceased to exist, the right expired with it: Tivey v. People, 8 Mich., 131; Town of Guilford v. Supervisors, 3 Kern, 143; Commonwealth v. Duane, 1 Binney, 601; Commonwealth v. Bacon, 6 Sargeant & Rawle, 322; Stoever v. Immal, 1 Watts., 258; Norris v. Crocker, 13 How., 438; Hampton v. Commonwealth, 19 Pa. St., 329; Williams v. Co. Com'rs., 35 Me. 345; Butler v. Palmer, 1 Hill, 330; Sedgwick on Const. and Stat. Law, 129, 132; Bailey v. Mason, 4 Minn., 546; Bishop on Stat. Crimes, secs. 177a, 178a, 265.

Messrs. Smith & Smith, for respondent.

Cited Rutherford v. Green's Heirs, 2 Wheat., 203; Dash v. Van Kleeck, 7 Johns., 477, 5 Am. Dec., 291; In re Tuller, 79 Ill. 99, 22 Am. Rep., 170; Peters v. Massey, 33 Grattan, 368; 5 Cal. 357; 20 Michigan, 398; State v. Ferguson, 62 Mo. 77; Kelsey v. Kendall, 48 Vt. 24: State v. Newark, 40 N. J. L., 257.

In examining our approved text writers we find their views harmonize with those above stated: Broom's Legal Maxims, seventh Am. Ed., pages 34 and 35, and Cooley's Const. Lim., 546.

Harris v. Brenham, 3 Cal. 487 was overruled in McKune v. Weller, 11 Cal. 63.

BOREMAN, J. ZANE, C. J., and HENDERSON, J., concurred.

OPINION

BOREMAN, J.:

At the general election held in August, 1884, one Robert P. Harris was elected to the office of county treasurer of Weber county, under a statute which established the office, and provided that the term of office of the county treasurers should be four years and until their successors should be elected and qualified. Subsequently, on the 11th day of March, 1886, nearly two years after Harris' election, the statute was amended by "striking out the word 'four,'" and "substituting the word 'two' in lieu thereof." At the general election in August, 1886, the defendant (Pingree) was elected to the office of treasurer of said county for the term of two years, upon the theory that Harris' term had expired at that time, under the statute as amended in the preceding March. Harris, having been elected for a term of four years, had two years yet to serve at that date, unless the amendment of March 11, 1886, had deprived him of the two years subsequent to the date of Pingree's election. Pingree entered upon the discharge of the duties of the office under his election in August, 1886, although Harris had not resigned, nor been removed from office. In February following, the date of Pingree's taking the office, Harris died. No one was appointed after Harris' death to fill the office, but Pingree continued in it. At the general election in August, 1887, the plaintiff was elected to said office, received his certificate, and was duly qualified to enter upon the discharge of the duties of the office, demanded the possession of the books, papers, and insignia of the office from the defendant, who was then in possession of them. The defendant having refused to deliver them up to him, the plaintiff brought this action, and upon the hearing of the case, the judgment being for the plaintiff, the defendant appealed to this court.

We learn from the appellant's brief that he claims the judgment of the lower court to have been erroneous, for the reason that the enactment of the 11th of March, 1886 operated at once as a vacation of the office then held by Harris, saving to the occupant the right to hold the office until his successor should be elected and qualified. The language of the brief is "that the effect of the amendment of March 11th, 1886, striking out the word 'four,' was to repeal the terms of office of all county treasurers then in office, so far as any term of years then unexpired might be, and simply to leave them to continue in office, or hold over until their successors should be elected and qualified." And the defendant further contends that, upon this theory, the fixed term of Harris expired at the taking effect of the amendment or repeal, on the 11th of March, 1886, and that therefore Harris could only hold until his successor should be elected and qualified, after that date, which he claims took place at the August election of 1886, when the defendant was elected to the office, and thereafter qualified. There was no vacation of the office, in express terms by the enactment of the 11th of March, 1886. The question then arises, was there such a vacation by implication? There was no repeal of the act creating the office. The amendment dealt only with the length of the term of office. It left all the residue of the statute intact, and in full force. If the legislature intended to vacate the office, that intention must clearly appear before a court is warranted in saying it exists. The defendant claims that such intent is shown in the enactment declaring that the old statute "is hereby amended by striking out the word 'four.'" But all that the striking out clause vacates is the word "four." Nothing else is pretended in the act to be vacated. That word is dropped out of the statute, but the office is not dropped out. It is left to stand as it stood before. The word "four," being repealed, stricken out, and the residue of the statute being allowed to stand, Harris would have found himself, upon the adoption of the amendment, on the 11th of March. 1886, in an office, the term of which had no end. His term would have been lengthened, instead of lessened, by the repeal or "striking out the word 'four;'" and there could have been no sort of ground for saying that under such circumstances any one else could have, by any election or appointment, a better right to the office. He had been duly elected to it nearly two years prior to that time, had not been removed, nor had he resigned, and the office had not been abolished. Only the time limit had been removed. But the true rule of construction is to take the whole of a statute, and consider all of its parts together, and not to take a fraction, and consider that by itself. The amendatory enactment of the 11th of March, 1886, not only contained the words "striking out the word 'four,'" but it also contained the words, "substituting the word 'two' in lieu thereof." The striking out and the substitution were simultaneous acts. With the word "two" in place of "four," we are to consider the effect of the change. There is no authority or sound reason for holding that such amendment took effect as of August, 1884, nearly two years prior to its enactment. The defendant contends that although the statute took effect on the day of its passage, yet that it related back to the August of 1884, the date of...