State ex rel. Stain v. Christensen

• Decision Date: 04 May 1934
• Docket Number: 5515
• Citation: 35 P.2d 775,84 Utah 185
• Court: Utah Supreme Court
• Parties: STATE EX REL. STAIN v. CHRISTENSEN ET AL

35 P.2d 775

84 Utah 185

STATE EX REL. STAIN v. CHRISTENSEN ET AL

No. 5515

Supreme Court of Utah

May 4, 1934

Rehearing Denied September 22, 1934.

Quo warranto proceeding by the State of Utah, on the relation of Charles A. Stain, against A. Edsel Christensen and another.

Judgment for defendants.

Claude T. Barnes, of Salt Lake City, for plaintiff.

O. L Huntsman, of Salt Lake City, for defendant Christensen.

Joseph Chez, Attorney General, and S.D. Huffaker, Deputy Attorney General, for defendant Hoge.

ELIAS HANSEN, Justice. STRAUP, Chief Justice, FOLLAND, Justice EPHRAIM HANSON, Justice, concurring. MOFFAT, Justice, dissenting.

OPINION

ELIAS HANSEN, Justice.

By this proceeding in quo warranto the parties have invoked the original jurisdiction of this court for the purpose of determining who is the Treasurer of the State of Utah. The facts are not in dispute. A. Edsel Christensen was elected State Treasurer in the general election held in 1928. He took the oath of office and filed a bond as required by law and assumed the duties of that office on the first Monday in January of 1929, and from that time to the present has continued to act as State Treasurer. In the general election of 1932 Charles A. Stain was elected State Treasurer. He took the oath of office on the first Monday in January, 1933, but has failed to give any bond. On December 12, 1933, the Governor appointed Enos Hoge State Treasurer. He took the constitutional oath of office and on January 4, 1934, filed his bond with the proper officers. Charles A. Stain claims that he is, and since the first Monday in January, 1933, has been, the State Treasurer. He further contends that the law with respect to the giving of a bond casts upon the State Board of Supply and Purchase the duty of furnishing his bond, and that if the law be so construed as to cast upon him the necessity of giving a bond before he may lawfully assume the duties of State Treasurer, then such law is unconstitutional because it is an attempt to add qualifications to the office of State Treasurer not authorized by, but contrary to, the provisions of our State Constitution. It is urged on behalf of A. Edsel Christensen that he is entitled to retain the office of. State Treasurer until his successor has been elected and has taken the oath as required by the Constitution and has given a bond as required by law; that the Governor was without legal authority to appoint Enos Hoge to the office of State Treasurer because there was no vacancy in that office.

Enos Hoge contends that Mr. Stain has forfeited his right to the office because of his failure to give a bond within the time provided by law; that the term for which Mr. Christensen was elected expired in January, 1933, leaving a vacancy in that office; that the Governor having appointed him to fill that vacancy and he having taken his oath and filed his bond, he is entitled to that office.

The provisions of our state Constitution which it is claimed have a bearing on the question which divides the parties are:

Article 24, § 16:

"The provisions of this Constitution shall be in force from the day on which the President of the United States shall issue his proclamation, declaring the State of Utah admitted into the Union; and the terms of all officers elected at the first election under the provisions of this Constitution, shall commence on first Monday, next succeeding the issue of said proclamation. Their terms of office shall expire when their successors are elected and qualified under this Constitution."

Article 7, §§ 1 and 3:

Section 1. "The Executive Department shall consist of Governor, Secretary of State, State Auditor, State Treasurer, Attorney General, and Superintendent of Public Instruction, each of whom shall hold his office for four years, beginning on the first Monday of January next after his election, except that the terms of office of those elected at the first election shall begin when the State shall be admitted into the Union, and shall end on the first Monday in January, A. D. 1901. The officers of the Executive Department, during their terms of office, shall reside at the seat of government, where they shall keep the public records, books and papers. They shall perform such duties as are prescribed by this Constitution and as may be prescribed by law."

Section 3: "* * * No person shall be eligible to any of the offices provided for in section one of this article, unless at the time of his election he shall be a qualified elector, and shall have been a resident citizen of the State or Territory for five years next preceding his election. The State Auditor and State Treasurer shall be ineligible to election as their own successors."

Article 4, § 10:

"All officers made elective or appointive by this Constitution or by the laws made in pursuance thereof, before entering upon the duties of their respective officers, shall take and subscribe the following oath or affirmation: 'I do solemnly swear (or affirm) that I will support, obey and defend the Constitution of the United States and the Constitution of this State, and that I will discharge the duties of my office with fidelity.'"

Article 7, § 10:

"* * * If the office of * * * State Treasurer * * * be vacated by death, resignation or otherwise, it shall be the duty of the Governor to fill the same by appointment, and the appointee shall hold his office until his successor shall be elected and qualified, as may be by law provided."

Article 24, § 2:

"All laws of the Territory of Utah now in force, not repugnant to this Constitution, shall remain in force until they expire by their own limitations, or are altered or repealed by the Legislature."

At the time Mr. Stain was elected the law provided:

"The state treasurer shall give to the state a surety company bond in the sum of $ 350,000.00; the premium of said bond shall be paid by the state." Laws of Utah 1921, c. 129 p. 362.

"The state treasurer shall give a separate and additional corporate surety bond in such amount as may be fixed by the governor, conditioned upon the faithful performance of his duties as custodian of the state insurance fund. The premium of said bond shall be paid out of the state insurance fund." Comp. Laws Utah 1917, § 3109, p. 670.

"Whenever state officers, officials of state institutions, or other persons are required to give official bonds to the state, such bonds shall be approved by the state board of examiners, and recorded by the secretary of state in a book to be kept for that purpose. * * *" Comp. Laws Utah 1917, § 4306.

At the time of the adoption of our state Constitution and the admission of Utah into the Union, the law of the territory of Utah provided:

"The Territorial Treasurer shall, before entering upon the duties of his office, * * * give a bond to the Territory of Utah in such sum not exceeding the whole amount of the revenue of the Territory for the year next preceding his election, nor less than one-half thereof; and with such sureties as the auditor of public accounts and the probate judge of Salt Lake county shall determine and approve, conditioned for the faithful performance of the duties of said office * * *" Comp. Laws Utah 1888, vol. 1, c. 3, p. 250, § 9.

The first Legislature to convene after statehood passed a law which required that:

"The State Treasurer must execute an official bond in the sum of three hundred and fifty thousand dollars." Laws of Utah 1896, c. 53, § 8, p. 143.

The second special session of the Legislature of 1933 enacted two laws, one of which provided that all public officers who are by law required to give bonds may give personal bonds in lieu of surety bonds. It was further provided that:

"In case of failure of any public officer to have his sureties justify when so required or to furnish additional sureties when required, as herein provided, the board or officer charged with the duty of approving the bond of such officer shall declare such office vacant within sixty days after notice personally served upon the officer, and at the expiration of said sixty day period such office shall become vacant unless such sureties justify or additional qualified sureties be furnished within said period."

That act took effect October 2, 1933, Second Special Session Laws of Utah 1933, c. 13, p. 26. The other act of the Second Special Session contained, among others, the following provisions:

"Whenever any person duly elected or appointed to any office of the state or any of its political subdivisions, fails to qualify for such office within sixty days after the date of beginning of the term of office for which he was elected or appointed, such office shall thereupon become vacant and shall be filled as provided by law. * * * Any elected or appointed official who has failed on the effective date of this act to qualify for the position to which he was elected or appointed, shall be deemed to come within the provisions of this act, and the office of such officer shall become vacant at the end of forty days after the effective date of this act unless legal bond is given before the expiration of such period, and such office shall be filled as provided by law."

That act also took effect October 2, 1933. Second Special Session Laws of Utah 1933, c. 25, p. 50.

Our state Constitution contains no express provisions relative to the giving of a bond by the treasurer or other state officer nor does it expressly authorize the lawmaking power of the state to require the giving of a bond by any of such officers. It is Mr. Stain's contention that it was not competent for the Legislature to add to the requirements contained in article 7, § 3, and article 4, § 10, of our state Constitution, as a condition precedent to his...