Nystrom v. Clark

• Decision Date: 05 February 1904
• Docket Number: 1476
• Court: Utah Supreme Court
• Parties: J. O. NYSTROM, City Recorder and Ex-officio Clerk of the City Court, Salt Lake City, Respondent, v. FRANK H. CLARK, Appellant

75 P. 378

27 Utah 186

J. O. NYSTROM, City Recorder and Ex-officio Clerk of the City Court, Salt Lake City, Respondent, v. FRANK H. CLARK, Appellant

No. 1476

Supreme Court of Utah

February 5, 1904

Appeal from the Third District Court, Salt Lake County.--Hon. S.W Stewart, Judge.

Mandamus to compel the defendant to turn over to plaintiff the records held by said defendant under a claim of right as Justice of the Peace in and for Salt Lake City. From a judgment in favor of the plaintiff, the defendant appealed.

AFFIRMED.

Messrs Frick & Edwards for appellant.

George L. Nye, Esq., City Attorney, W. C. Shoup, Esq., and James Ingebretsen, Esq., Assistant City Attorneys, for respondent.

McCARTY J., delivered the opinion of the court. BASKIN, C. J., and BARTCH, J., concur.

OPINION

McCARTY, J.

STATEMENT OF FACTS.

J. O. Nystrom brought this action in his official capacity as clerk of the city court of Salt Lake City, which office and court were created by chapter 109, p. 110, Sess. Laws 1901. Prior, to January 5, 1903, Salt Lake City, which is a city of the first class, was divided into five precincts, in each of which was elected a justice of the peace. In 1901, the Legislature, by an amendment to the then existing law, provided as follows: "That cities of the first class shall not be divided into precincts for the purpose of electing precinct officers, but such cities shall be deemed one precinct for the purpose of electing one justice of the peace." Chapter 107, p. 109, Sess. Laws 1901. Chapter 108, p. 109, provides "that in cities having" a population of over fifteen thousand, the office of city justice of the peace is hereby abolished and no election for said office shall be held. This provision shall not affect the office or term of office of present city justices of the peace."

The Legislature at the same session passed an act (chapter 109, p. 110) creating and establishing city courts in cities of the first class. Section 1 of the act provides that "there is hereby created within cities of the first class in this State a court to be known as the city court of (naming the city) and there is also created the office of city judge, whose election, qualification, duties and term of office shall be as hereinafter provided." Section 9, so far as material here, is as follows: "The city recorder of such cities of the first class is ex-officio clerk of the city court." Section 23, in part, provides that "the ex-officio clerk shall be the custodian of all the files, papers, indexes, and dockets of the justices of the peace of cities of the first class, whose term of office shall have expired, and said justices of the peace are hereby required and directed, on the termination of their offices, to deliver to said clerk all of their papers, files, and indexes and dockets, . . . and the said city courts are hereby authorized and directed to proceed to hear and determine all actions and cases so pending before such justices of the peace, and to issue final process therein and to receive such fees therefor as are now or herein may be provided by law."

The defendant, Frank H. Clark, was duly appointed and acting justice of the peace in the First Precinct of Salt Lake City from June 9, 1902, when the law abolishing the several precincts referred to, and merging them into one, went into effect. At the general State election held November 4, 1902, he was elected justice of the peace of Salt Lake City precinct, which precinct covered the territory included in the five precincts mentioned. He duly qualified and entered upon the duties of the office, and continued to retain possession of all papers and files, and to use the indexes and dockets in his new office that he had formerly used while acting as justice of the peace of the First Precinct before said precinct was abolished. The plaintiff, by virtue of the provisions of section 23, c. 109, supra, demanded of the defendant that he surrender and deliver to plaintiff the files papers, indexes, and dockets above mentioned, which defendant refused and neglected to do, and this action was instituted to compel him by writ of mandate to comply with the foregoing provisions of chapter 109, Sess. Laws, by delivering to plaintiff the papers, files, indexes, and dockets referred to. The court found the issues in favor of the plaintiff, and issued the writ. Defendant appeals.

McCARTY, J., after stating the facts, delivered the opinion of the court.

The first question presented by this appeal is, does section 23 p. 114, c. 109, apply to the appellant? By the terms of chapter 107, p. 109, Sess. Laws 1901, the five precincts theretofore existing in Salt Lake City were abolished, and the entire city made one precinct. That the Legislature had the constitutional power and authority to do this is not questioned. This being conceded, when the act went into effect by which the territorial limits of each of the five precincts in Salt Lake City were obliterated, and the precincts thereby abolished and merged into one, the term of office of each of the five justices of the peace who held office in these precincts prior to and next preceding January 5, 1903, expired, and its necessarily followed that they could not hold over; neither could they be elected to succeed themselves in the precincts which had been abolished. The provisions of chapter 107 are general, and they contain no saving clause or proviso that excepts any precinct in cities of the first class from their operation; and, as hereinbefore stated, the First Precinct, by the terms of said section, was abolished in common with the other four precincts of Salt Lake City. Therefore the language of section 23, p. 114, c. 109, which refers to justices of the peace "whose terms of office shall have expired," includes all five of the justices of the peace who held office in the precincts mentioned at and prior to the time they were abolished, because, when the act went into effect abolishing these precincts, the terms of office of the several justices of the peace not only expired, but ceased to exist. State v. Howell, 26 Utah 53, 72 P. 187. ...