Sjostrom v. Bishop

• Decision Date: 25 June 1964
• Docket Number: No. 10054,10054
• Parties: d 373 Harvey A. SJOSTROM, Plaintiff, v. Theral V. BISHOP and Ross L. Covington, Defendants.
• Court: Utah Supreme Court

Page 472

393 P.2d 472

15 Utah 2d 373

Harvey A. SJOSTROM, Plaintiff, v. Theral V. BISHOP and Ross L. Covington, Defendants.

No. 10054.

Supreme Court of Utah.

June 25, 1964.

Harvey A. Sjostrom, Logan, for plaintiff.

Preston & Harris, Logan, for defendants.

CROCKETT, Justice:

This is an original proceeding in this court in the nature of quo warranto by which the plaintiff Harvey A. Sjostrom, former City Attorney, seeks to oust the defendants Theral V. Bishop as Mayor and Ross L. Covington as Commissioner of Logan City.

The defendants were elected for terms of four years each to these offices at the election held November 7, 1961. On January 2, 1962, they duly qualified and assumed the offices mentioned and have since continued to serve therein.

The difficulty with which we are here confronted devolves upon Section 10-6-18, U.C.A.1953 which provides:

'Every elective officer in a city of the first and second class shall within thirty days after qualifying file with the city recorded and publish at least once in a daily newspaper of general circulation in the city a sworn statement of all his election and campaign expenses, showing by whom such funds were contributed. In case any such elective officer fails to publish such statement, his office becomes vacant, and such officer in addition thereto shall be guilty of a misdemeanor.' (Emphasis added.)

Shortly after learning of the above requirements, the defendants filed and published their statements on June 7, 1962. A year and a half later, on January 9, 1964, plaintiff, having conferred with the Attorney General, who declined to institute the action, commenced this suit in his own right as a citizen. ¹ Plaintiff contends that the provisions of Sec. 10-6-18 above quoted are mandatory and self-executing; while defendants argue that they are directory only.

From our examination of the authorities and the variety of expressions to be found among them, we are impressed with the difficulty that would be encountered in attempting to state any definite and invariable rule by which directory provisions of a statute could always be distinguished from those which are mandatory. It best serves our purpose here to point out generally that there are at least some guide lines to be followed. The most fundamental one is that the court should give effect to the intention of the legislature. That requires us to consider what the figurative 'legislative mind' would have intended had it adverted to the particular circumstances we are confronted with for adjudication. This in turn leads us to analyze the statute in the light of its history and background; the purpose it was designed to accomplish; and what interpretation and application will best serve that purpose in practical operation.

The section referred to, 10-6-18, U.C.A.1953, was enacted substantially in its present form in 1911, at which time we did not have our so-called Corrupt Practices Act. Its evident purpose is that elected officials disclose the sources and expenditures of funds used in elections as a safeguard against corrupt practices. In 1917 our legislature enacted the Corrupt Practices Act, Sections 20-14-1 to 20-14-47, (U.C.A.1953) inclusive, which, evidently calculated toward the same objective, provided that periodic statements of contributions and expenses should be filed before election. But it does not expressly repeal the former law, Sec. 10-6-18. Inasmuch as that section provides for publication in a newspaper after election, even though its general purpose is also covered by the later Corrupt Practices Act, the sections do not appear to be sufficiently identical that 10-6-18 is completely superseded and thus repealed by implication, as argued by the defendants. That statute being still in effect, the question whether defendants have sufficiently complied with it to avoid being ousted from their offices remains to be dealt with.

It is of some significance that failure to comply with this statute is made a crime. Accordingly, one accused of violating it is entitled to a construction of its terms liberally in his favor. In view of the serious consequences the forfeiture provision would have, both upon the individual by ousting him from office, and upon public affairs by nullifying an election, results which are not favored in the law, and which should be reached only for compelling reasons, it seems logical and proper that this rule of liberal construction in favor of the defendants should be applicable also to the forfeiture aspect of this statute.

Where statutes governing the conduct of elections require something to be done before the election, so it might have some influence on the election's outcome, it is usually held that the time requirement is mandatory. But where it is not to be done until after the election, so that compliance would not affect the result, the provision as to time is generally considered to be directory only? The filing and publication required by this statute is to be done after the election, so they obviously could not have influenced the voters' choice nor the election.

On this point the Wisconsin Court in State v. Industrial Commission, ³ said:

'When there is no substantial reason why the thing by statute required to be done might not as well be done after the time prescribed as before; * * * nothing in the act itself, or in other acts relating to the same subject-matter, indicating that the Legislature did not intend that it should rather be done after the time prescribed than not done at all--the courts will deem the statute directory merely.'

A Utah case providing some guidance here is that of State ex rel. Wight v. Park City School District. ⁴ Plaintiff sought to prohibit defendant School District from levying a tax to maintain a separate high school in Summit County. He contended that the District could not do so because no action had been taken to divide Summit County into two or more districts within the 60 days' period the statute allowed to do so after it became law. In rejecting that contention this court said:

'The general rule is that a statute, prescribing the time within which public officers are required to perform an official act, is directory only, unless it contains negative words denying the exercise of the power after the time specified or the nature of the act to be performed, or the language used by the Legislature shows that the designation of time was intended as a limitation.'

The purpose of the statute with which we are concerned was to make the specified information available to interested members of the public. It was undoubtedly intended that the filing and publication be done within 30 days, which was probably thought to be a reasonable time to do so. However, there is nothing in connection with its purpose, nor in its wording, to compel a conclusion that there was any such urgency as to time that the filing and publication must be done precisely within 30 days or that it should not be done at all.

It seems hardly open to doubt that the defendants having been duly elected and qualified, and having assumed the responsibilities of their offices, were entitled to perform the duties of their offices until ousted therefrom. ⁵ Assume, for example, that they had continued to serve out their terms without anyone calling attention to the statute or taking any action on the matter. The mere silent existence of ...