Peterson v. Benson

• Decision Date: 01 December 1910
• Docket Number: 2146
• Citation: 38 Utah 286,112 P. 801
• Court: Utah Supreme Court
• Parties: PETERSON v. BENSON, City Recorder

112 P. 801

38 Utah 286

PETERSON v. BENSON, City Recorder

No. 2146

Supreme Court of Utah

December 1, 1910

APPEAL from District Court, First District; Hon. W. W. Maughan Judge.

Application by Niels Peterson for a writ of mandate requiring Mae Benson as Recorder of Logan City, to draw a warrant in favor of applicant.

Judgment dismissing petition. Applicant appeals.

REVERSED.

A. A Law for appellant.

H. G. Nebeker and Charles H. Hart for respondent.

McCARTY, J. STRAUP, C. J., and FRICK, J., concur.

OPINION

McCARTY, J.

STATEMENT OF FACTS.

Niels C. Peterson, appellant, applied to the district court of Cache County for a writ of mandate requiring the recorder of Logan City to draw a warrant in his favor upon the treasurer of said city for the sum of eighty-three dollars and thirty-three and one-third cents alleged to be due him for salary earned as marshal of Logan City during the month of February, 1910. An alternative writ of mandate was issued by the court. The recorder filed an answer to Peterson's petition and the cause was submitted to the court for decision upon an agreed statement of facts, from which it appears that Peterson was duly elected to the office of marshal of Logan City on November 3, 1907, and that he duly qualified as marshal and entered upon the duties of the office January 6, 1908, and ever since has continued to and did during the month of February, 1910, perform the duties of the office.

Section 213, Comp. Laws 1907, provides, as far as material here, that: "In addition to the mayor and city councilmen, there shall be elected... in cities of less than twelve thousand inhabitants, a city marshal; provided, that in cities of less than twelve thousand inhabitants the city recorder shall be ex officio city auditor and shall perform the duties of such office.... All elective officers shall hold their respective offices for two years, and until their successors are elected and qualified."

Section 225 provides that: "All officers of any city shall receive such compensation as may be fixed by ordinance, but the compensation of any such officer shall not be increased or diminished to take effect during the time for which any such officer was elected or appointed."

In the year 1909 the legislature amended section 213 (Laws 1909, c. 107). The section as amended, so far as material to the questions here involved, provides that: "In cities of less than twelve thousand inhabitants a city marshal shall be appointed by the mayor subject to the confirmation of the city council on the first Monday in January following a municipal election."

It appears from the statement of facts that Logan City is a city of the second class having a population of less than twelve thousand inhabitants; that the mayor of said city has failed and neglected to appoint a marshal for the city by and with the concurrence of the city council or otherwise; that Peterson has not been duly or otherwise appointed to the office of marshal of the city in the year 1910; that he is exercising and performing the duties of the office of city marshal, and claiming the benefits, emoluments, and salary of the office by virtue of his election thereto in the year 1907, and that he has no right or claim to the office, except such as arises out of his election to the same in the year 1907. It further appears that at the time Peterson was elected, and at the time he entered upon the duties of the office mentioned, there was in force and effect an ordinance of Logan City fixing the salary of the office of city marshal at nine hundred dollars per annum, payable at the end of each month in equal installments of seventy-five dollars; that subsequently, on October 1, 1909, there was duly passed by the city council, and approved by the mayor of Logan City "an ordinance purporting to fix the annual salary attached to the office of marshal of Logan City for the terms of two years beginning the first Monday in January, 1910, and ending the first Monday in January, 1912, at one thousand dollars per annum," payable in monthly installments of eighty-three dollars, thirty-three and one-third cents at the end of each month.

It is further stipulated that "the above-named defendant, Mae Benson, ever since January 3, 1910, has been, and now is, the duly elected, qualified, and acting city recorder of Logan City, and as such officer it was, and now is, the duty of such recorder to draw all warrants or orders for the payment of all funds due from said city to its officers on account of salary or otherwise payable out of the treasury of Logan City; that petitioner duly demanded that the defendant draw a warrant in his favor upon the treasurer of Logan City for the sum of eighty-three dollars and thirty-three and one-third cents in payment of his salary as marshal earned in the month of February, 1910;... that the recorder refused and still refuses to draw a warrant for said sum or any sum except said amount of seventy-five dollars;... that the recorder tendered to the petitioner a warrant drawn on the treasurer of Logan City for the sum of seventy-five dollars," which Peterson, the petitioner, refused to accept; that defendant deposited with the clerk of the district court of Cache County at the time she filed her answer said warrant for seventy-five dollars for the use and benefit of Peterson; and that defendant has at all times been ready, willing, and able to issue and deliver to Peterson a warrant for seventy-five dollars. It was also stipulated that "the petitioner has no plain, speedy, or adequate remedy at law."

The court found on the issues in favor of the recorder, and rendered judgment dismissing the petition for a writ of mandate. To reverse the judgment, Peterson has brought the case to this court on appeal.

McCARTY, J. (after stating the facts as above).

Respondent contends, first, that the...