Fowler v. Gillman

• Decision Date: 23 July 1930
• Docket Number: 4944
• Court: Utah Supreme Court
• Parties: FOWLER et al. v. GILLMAN et al

290 P. 358

76 Utah 414

FOWLER et al. v. GILLMAN et al

No. 4944

Supreme Court of Utah

July 23, 1930

Appeal from District Court, Fourth District, Utah County; A. V Watkins, Judge.

Petition by Daryl Fowler, George H. Davis, and C. D. Coates against J W. Gillman and others, County Commissioners of Utah County for a writ of mandate. Writ granted, and the commissioners appeal.

Affirmed both as to judgment and as to costs.

Geo. S. Ballif, W. S. Dunford, and Martin M. Larson, all of Provo, for appellants.

A. B. Morgan and M. R. Straw, both of Provo for respondents.

STRAUP, J. CHERRY, C. J., and ELIAS HANSEN, EPHRAIM HANSON, and FOLLAND, JJ., concur.

OPINION

STRAUP, J.

The plaintiffs, Fowler, a deputy county treasurer, and Davis and Coates, deputy county sheriffs, of Utah county, on their petition in the district court were granted a writ of mandate requiring the board of commissioners of that county to order paid, which they had refused to do, salaries of the plaintiffs for services rendered by them as such deputies and as certified to the board and approved by the county auditor. The commissioners appeal.

In November, 1926, J. D. Boyd was elected sheriff and John C. Taylor treasurer of Utah county for a term of four years commencing in January, 1927. The county has a board of county commissioners consisting of three members. In 1902 one was elected for a term of four years and two for two years, and thereafter every two years at a general election one was elected for a term of four years and one for a term of two years. As soon as the sheriff and the treasurer qualified on the first Monday in January, 1927, and assumed the duties of their respective offices, they, in pursuance of section 1461, Comp. Laws Utah 1917, certified to the board of county commissioners appointments of deputies, including the plaintiffs, for confirmation by the board. The appointments were confirmed and at the same time the board fixed the salaries to be paid each appointee. In such particular the records of the commissioners recite that: "The following offices are created, and the salaries fixed for a term of one year: These appointments being made as of January 3, 1927, salaries effective as to new deputies, January 3, 1927, and as to old deputies, February 1, 1927." Then follows a recitation fixing the monthly salaries of each of the appointees confirmed by the board, including the monthly salary to be paid to each of the plaintiffs. The plaintiffs thereupon took and filed their oaths of office and qualified as by the statute in such case made and provided, and assumed the duties of their respective offices. On January 3, 1928, the board of county commissioners again confirmed the appointments of deputies, including the plaintiffs. The record of the board in such particulars is: "The following appointments are confirmed: Sheriff's Department as Deputy Sheriffs," designating six deputies, including the plaintiffs Davis and Coates. The record further recites: "All salaries for deputies to remain as they now are with the exception of B. F. Hooper and S. A. Willis, whose salaries shall be raised to $ 125.00 per month." A similar record is shown as to the confirmation of plaintiff Fowler as a deputy county treasurer. By such confirmation it is seen that neither the term of employment, nor the term of the monthly salary, of the plaintiffs, or of other deputies, was fixed or designated for any particular period or term. After such second confirmation the plaintiffs did not take or file a new oath of office but continued as theretofore in the discharge of their respective duties as deputies.

All went well without complaint, until after the general election of November, 1928, when a member of the old board was re-elected and a new member elected as county commissioners. There was one hold-over. So, on December 19, 1928, the two old members of the board in their individual capacity delivered to the sheriff and to the treasurer a written notice that they did not intend to confirm the plaintiffs as deputies for the next year and to govern themselves accordingly "in making up your list of deputies for the next year." In reply to that the sheriff in writing stated that his deputies Coates and Davis had been with him for a number of years and had proved themselves capable and efficient officers; that if there was anything to show that they were inefficient or neglectful in any particular or had done anything to justify their dismissal or dispensing with their services, the sheriff was willing to co-operate with the board; but that in the absence of some such showing, or other good cause, he, as a matter of service to the public and in harmony with his office, saw no reason for a dismissal of such deputies or the making of any change in such respect. No action was taken or reply made to that by any of the members of the board. On January 30, 1929, and after the newly elected members of the board had qualified, the chairman of the board by written notice notified the sheriff and the treasurer "that no deputy will be considered employed by Utah County, nor will there be any salary paid for services rendered, until such deputies are duly confirmed and their salaries fixed," and that the order would become effective February 1, 1929. The plaintiffs continued in office performing and discharging the duties thereof. On February 18, 1929, the sheriff addressed another communication to the board in which he recited the notices served on him December 19, 1928, and January 30, 1929, and in which he, among other things, stated that his deputies Coates and Davis had theretofore been confirmed and their salaries fixed for and during the term of the sheriff's office; that such deputies were capable and efficient officers, had faithfully performed the duties of their office, and that they should not summarily be dismissed or discharged without knowing the nature of the charges, if any were to be made, and without an opportunity to be heard, and requested a special meeting of the board to inquire into such matters; and if anything was made to appear that such deputies were inefficient or otherwise unworthy to hold the office, he would readily join in the discharge of them. No reply was made to that and no hearing given.

So the matter stood until the last day of February or first of March, 1929, when the county auditor certified to the board a pay roll of the officers of the county, including the plaintiffs, and who during the month of February had been in the service of the county, which pay roll was audited and approved by the auditor as by law required and presented to the board for its approval. The board approved and ordered paid all of the pay roll as presented, including all of the deputies of the sheriff's office and of the treasurer's office except the plaintiffs whose names were stricken from the pay roll and the auditor directed not to pay any of the salaries of either of the plaintiffs or to issue any warrant therefor. The salaries of all other deputies were ordered paid, though not confirmed by the present members of the board any more than were the plaintiffs confirmed by them. The plaintiffs were not at any time dismissed or discharged from service, either by the board or by the county officers appointing them. They remained in office during the whole of the month of February just as they were during the month of January, performing and discharging the duties of the office. The offices themselves were not abolished nor vacated. No claim is made that the services of the plaintiffs were no longer necessary or required. Nor is there any claim made that such deputies or any of them was inefficient or in any particular incompetent, neglectful, or unworthy. The court found, and the evidence shows, that their names were arbitrarily and without cause stricken from the pay roll and their salaries ordered not paid. One of the commissioners, and who was most active in the transactions, testified that "the commission acted arbitrarily," and that the course pursued by him and another commissioner acting with him, and who constituted a quorum of the board, was to oust the plaintiffs from office and to discontinue their service, and "that was the intended effect so far as we were concerned."

In defense of the acts so pursued by such majority members of the board, it is urged that under the statute (section 1461) a confirmation of the appointment of the plaintiffs was a prerequisite to entitle them to hold the office and to demand compensation for services rendered, and that no such confirmation was had after January, 1929, when, as it is claimed, the new board of county commissioners was reorganized. The section provides that "Every county * * * officer, may, by and with the consent of the board of county commissioners, appoint as many deputies and assistants as may be necessary for the prompt and faithful discharge of the duties of his office. The appointment of a deputy must be made in writing, and filed in the office of the county clerk and, until such appointment is so made and filed and until such deputy shall have taken the oath of office, no one shall be or act as such deputy." In such connection it is urged by the commissioners that when the plaintiffs were appointed by the county sheriff and the county treasurer in January, 1927, and their respective appointments confirmed, such appointments were only for a term of one year. The trial court, in effect, held that such appointments were for and during the term of office of the sheriff and of the treasurer, which was for four years from January, 1927, and that the amount of the monthly salary, and not the period or term of appointment, was fixed for one year. Let that be as it may, for admittedly the...