State v. White

• Decision Date: 17 August 1912
• Docket Number: 2387
• Citation: 41 Utah 480,126 P. 330
• Court: Utah Supreme Court
• Parties: STATE ex rel. MORCK v. WHITE

126 P. 330

41 Utah 480

STATE ex rel. MORCK v. WHITE

No. 2387

Supreme Court of Utah

August 17, 1912

Rehearing Denied September 9, 1912.

APPEAL from District Court, Third District; Hon. C. W. Morse, Judge.

Quo warranto by the State, on the relation of Carl M. Morck against Charles H. White, to try title to office.

Judgment for relator. Defendant appeals.

REVERSED AND REMANDED.

J Louis Brown for appellant.

David W. Moffat for respondent.

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

OPINION

FRICK, C. J.

This is an action in the nature of quo warranto to try the title to the office of city justice of the peace of Murray City, Salt Lake County. Both appellant and respondent claim to be legally entitled to the office. The case was submitted to the district court of Salt Lake County upon an agreed statement of facts, from which it appears that the respondent, Morck, for the years 1910 and 1911, was the duly elected, qualified, and acting city justice of the peace for Murray City; that his term of office, by virtue of the general law of this state, expired at noon on the first Monday of January, 1912; that the appellant, White, on the afternoon of said date was duly appointed by the board of commissioners of Murray City to fill the vacancy which said board assumed existed by virtue of the expiration of Morck's term of office as aforesaid, and said White duly qualified and entered upon the discharge of, and discharged, the duties of said office under said appointment. The district court, however, found as a conclusion of law that the respondent, Morck, was entitled to the office as a holdover, and was thus entitled to hold and to discharge the duties of the office aforesaid. The court therefore entered judgment ousting the appellant from said office and reinstating the respondent, Morck, therein. Appellant asks us to reverse said judgment.

Appellant's counsel contends that the district court erred in its conclusions of law and in entering judgment as aforesaid. The questions involved on this appeal are purely legal and arise as follows: Comp. Laws 1907, sec. 213, as amended by Laws 1909, p. 230, so far as material prior to 1911, read as follows: "In addition to a mayor and city councilmen there shall be elected in all cities of the state a city recorder, a city treasurer and a city justice of the peace; and also in cities of the first and second class a city attorney and city auditor, . . . provided that in cities having a population of over 15,000 the office of city justice of the peace is hereby abolished and no election for said office shall be held." Murray City is a city of the second class having less than 15,000 population. In said city respondent, Morck, in the fall of 1909, was duly elected city justice for the term ending at noon on the first Monday in January, 1912. In 1911 the legislature of Utah adopted what is known as the commission form of government for cities of the first and second class and abolished the offices of mayor and city councilmen. (Chapter 125, p. 224, Laws 1911.) In that chapter, section 213, already referred to, was again amended to read as follows: "In all cities of the second class in this state there shall be elected at large a mayor and two commissioners who shall constitute the board of commissioners of the city for which they are elected, and there shall also be elected a city auditor. The city justice of the peace is entirely omitted from among the officers that shall be elected. Nor is there anything said about that office being appointive. In the section following. No. 214 of the same act, it is among other things provided: "The board of commissioners may appoint all such officers and agents as may be provided for by law or ordinance and fill all vacancies occurring therein." This refers to city officers. In another section in the same act it is also provided as follows: "The term of office of all the present elective officers in the cities of the first and second class shall expire at 12 o'clock, meridian, on the first Monday in January, 1912." (Section 887.)

Both parties insist that the office of city justice of the peace in and for Murray City was not abolished, and both appeal to the familiar doctrine that an existing office is not to be deemed abolished unless the intention of the authority possessing the power to abolish to do so is clear. (29 Cyc 1368.) From what is found in the legislative acts upon this subject, it is not only not clear that the legislature intended to abolish the office of city justice of the peace for cities of the second class having less than 15,000, but in view that the legislature by express language which we have quoted abolished said office only in cities having more than 15,000 population it might well be inferred that in all cities of the second class having less than that number the office was intended to be retained. Counsel for both parties have adopted this view. What divides them, however, is this: Counsel for respondent contends that, inasmuch as it is provided by the general law of this state that all officers shall hold office for the term for which they are elected and until their successors are elected and qualified, therefore respondent held over. Upon the other hand, counsel for appellant contends: ...