People ex rel. Murphy v. Hardy

• Decision Date: 01 April 1892
• Citation: 8 Utah 68,29 P. 1118
• Court: Utah Supreme Court
• Parties: PEOPLE OF THE TERRITORY OF UTAH, EX RELATIONE WALTER MURPHY, COUNTY ATTORNEY OF SALT LAKE COUNTY, APPELLANT, v. LEONARD G. HARDY, RESPONDENT

29 P. 1118

8 Utah 68

PEOPLE OF THE TERRITORY OF UTAH, EX RELATIONE WALTER MURPHY, COUNTY ATTORNEY OF SALT LAKE COUNTY, APPELLANT, v. LEONARD G. HARDY, RESPONDENT

Supreme Court of Utah

April 1, 1892

APPEAL from a judgment of the district court of the third district. The statutes were passed at different times. The first statute was passed January 3, 1853, and provided "Annually on the first Monday in August there shall be a general election held in each precinct in the several counties for choosing all officers not otherwise provided for." This section was inserted with sections 2018 and 2020 in a statute passed February 22, 1878, from which place they were inserted in the Compiled Laws of 1888, volume I.

Affirmed.

Messrs Rawlins and Critchlow and Mr. William H. Dickson, for the appellant.

Mr Arthur Brown, for the respondent.

MINER, J. ANDERSON, J., and BLACKBURN, J., concurred.

OPINION

MINER, J.

From the agreed state of facts in this case, it appears that, at the August election at Salt Lake county, occurring in 1884 and 1886, one N. V. Jones was elected collector of Salt Lake county. Jones resigned this office to the county court in November, 1886, shortly after his second election and before the expiration of his first term, without qualifying; whereupon the county court appointed Leonard G. Hardy, the respondent, as such collector, for the unexpired term; "also for the term commencing June 1, 1887, and until his successor should be duly elected and qualified." On June 6, 1887, the county court again appointed Hardy collector for the year 1887.

Hardy qualified under each appointment, according to law, and entered upon the duties of his office. At the August election for the year 1887 said Hardy was elected collector, and qualified in June following. No one was voted for or elected collector at the election provided to be held in August, 1888; but in August, 1889, Hardy was again elected collector, and duly qualified. After each appointment and election Hardy received his regular commission from the governor. At the regular election in August, 1890, no one was elected collector. At the election held in August, 1891, three candidates were voted for. The appellant, A. L. Williams, received 4,420 votes, that being the highest number of votes polled for any one candidate, and A. L. Williams was declared elected, and received his commission from the governor of Utah Territory, after which he duly qualified as such collector, and demanded possession of the office, which respondent, Hardy, refused to yield; whereupon this proceeding was commenced to test Hardy's title to this office. The relator now contends that the election of Williams in August, 1891, was valid for the balance of the unexpired term of this office, which commenced June 1, 1891, and which would expire June 1, 1893; that Hardy's appointment in June, 1887, gave him the right to hold until the next general election in August, 1887, and that his election in August, 1887, gave him the right to hold until June, 1889, when the office became vacant; but, there being no election in 1888, Hardy would hold over until June, 1891, and that Williams' election in August, 1891, gave him the right to the office for the unexpired term ending June, 1893. Respondent, Hardy, contends that his appointment by the county court, in 1887, confers upon him a right to hold the office until his successor is duly elected and qualified; and that, under the statute, the election held in August, 1891, is void, and that Williams has no title to office under such election; that there was no vacancy in the office in June; 1891, such as, under the statute, could be filled by an election in August, 1891; that no election having been held in August, 1890, nor appointment made, the incumbent holds over until June, 1893. By § 2018 (1 Comp. Laws, 1888, p. 722) it is provided that, at the general election in 1878, and biennially thereafter, there shall be elected, by the qualified voters of this Territory, a collector for each county, whose term of office shall be for two years, and until his successor shall be duly elected or appointed, and qualified; each collector to enter upon the duties of his office on the 1st day of June following his election, after having qualified. Section 2020 (Id. p. 723) provides that in case of the office of collector becoming vacant the county court of the county where such vacancy occurs shall have power to fill such vacancy, by appointment, until the next general election. Section 238 (Id. p. 318) provides that annually, upon the first Monday in August, there shall be a general election held in each precinct in the several counties for choosing all officers not otherwise provided for. Section 187, subd. 25 (Id. p. 303) gives county courts power to fill by appointment all vacancies that may occur in any office filled by appointment of the county court, and elective county district or precinct offices.

Under the agreed facts, the question arises, was the election of Williams, in August, 1891, and the election of Hardy, in August, 1887 and 1889, authorized by law? Was there any vacancy in this office in June, 1891, that could be filled except by an election held in August, 1890, or by appointment of the county court? Section 2018 creates the office of collector, and provides that such collector shall be elected at the general election in 1878, and biennially thereafter that his term of office shall be for two years, and until his successor shall be duly elected or appointed and qualified; and that he should enter upon the duties of his office on the 1st day of June next following his election. The time of the election for the office created by the act is fixed by the same section at the general election to be held in August on each even numbered year following 1878. The term commences the 1st of June following the election, or in an odd numbered year. Under this section the incumbent holds until his successor is duly elected or appointed and qualified. Jones was elected under this statute in August, 1884, and again in August, 1886, but resigned both terms of office in November, 1886, to the county court; and Hardy was duly appointed to fill the long and the short term, under § 2020. This section gives the county court...