Tooele County v. Mare

• Decision Date: 10 July 1936
• Docket Number: 5308
• Citation: 90 Utah 46,59 P.2d 1155
• Court: Utah Supreme Court
• Parties: TOOELE COUNTY v. DE LA MARE et al

59 P.2d 1155

90 Utah 46

TOOELE COUNTY v. DE LA MARE et al

No. 5308

Supreme Court of Utah

July 10, 1936

Rehearing denied October 14, 1936.

Appeal from District Court, Third District, Tooele County; Oscar W McConkie, Judge.

Action by Tooele County, a municipal corporation, against Isabel De La Mare and another. From a judgment for plaintiff defendants appeal.

Superseding opinion in 89 Utah 23, 39 P.2d 1051.

REVERSED AND REMANDED, WITH DIRECTIONS.

A. E. Moreton and H. L. Mulliner, both of Salt Lake City, for appellants.

Harley W. Gustin, of Salt Lake City, J. T. Pence, of Big Piney, Wyo., and C. E. Baker, of Tooele, for respondent.

ELIAS HANSEN, Chief Justice. FOLLAND, EPHRAIM HANSON, and MOFFAT, JJ., concur. WOLFE, Justice, dissenting.

OPINION

ELIAS HANSEN, Chief Justice.

Plaintiff secured a judgment against defendant Isabel De La Mare for the sum of $ 58,053.35 and against the defendant National Surety Company in the sum of $ 40,000. Defendants appeal. The controversy resulting in the judgment grew out of the failure of the Tooele County State Bank, where defendant Miss De La Mare, as county treasurer of Tooele county, Utah, had funds of the county on deposit. The defendant National Surety Company was the surety on the official bond of Miss De La Mare. The surety bond was for the sum of $ 40,000. This cause has heretofore been argued, and by a divided court an opinion rendered affirming the judgment of the trial court. Tooele County v. Isabel De La Mare and National Surety Company, 90 Utah 23, 39 P.2d 1051. Upon a petition filed by defendants a rehearing was granted. The cause has been reargued and resubmitted. After a re-examination of the question presented for review, we have reached a conclusion at variance with the former opinion. It therefore becomes necessary to recall the former opinion and substitute another in lieu thereof. The principal attack made upon the judgment appealed from by the assignments of error is that various findings of fact and the judgment are without support in the evidence. There is no substantial conflict in the evidence which establishes the following facts: Isabel De La Mare was the treasurer of Tooele county, Utah, during the ten years immediately preceding January 5, 1931. At a general election held in November, 1930, Mrs. Annie Campbell was elected to that office. A certificate of election was issued to her by the county clerk. At noon on Monday, January 5, 1931, Annie Campbell together with the other newly-elected officers of Tooele county, took their oaths of office. Mrs. Campbell did not sign the oath. After she took her oath of office, Mrs. Campbell submitted to the board of county commissioners a written appointment of defendant Isabel De La Mare as deputy county treasurer at a salary of $ 100 per month, to serve up to and including January 16, 1931. The appointment of Miss De La Mare as deputy was on that date, January 5, 1931, approved by the county commissioners. Mrs. Campbell had not filed her bond at the time she took her oath of office. The minutes of a meeting of the board of county commissioners held January 5, 1931, show that:

"At 12 o'clock, noon, the following officers were sworn in respectively, as follows: Fred Shelton, Commissioner, Richard Jeffries, Commissioner, C. E. Baker, County Attorney, O. A. Evans, Sheriff; Mrs. Annie Campbell, Treasurer; Miss Millie Shields, County Recorder; D. A. Lindsay, Justice of the Peace; R. Sterling Halliday, County Assessor; the oath being administered by County Clerk, Fred Bryan, who was, in turn, sworn by County Attorney C. E. Baker. The County Clerk having advised the Board that he had the bond for the county officers, except Mrs. Annie Campbell, which bond, he was advised by County Attorney Baker, would be filed today."

After Mrs. Campbell took her oath of office and Miss De La Mare was appointed and approved as deputy treasurer, they went to the Tooele County State Bank where Miss De La Mare had on deposit funds belonging to the county. Miss De La Mare took with her to the bank all of the money which she had at the office and deposited the same to the account of the county. The account of the county at the bank was then transferred from Miss De La Mare, as treasurer, to Mrs. Annie Campbell, as treasurer. Mrs. Campbell signed a card which was left at the bank so that her signature could be identified. She then drew a check against the county funds for the sum of $ 25 which she took with her to the county treasurer's office for use as petty cash. Prior to the transfer of the account at the bank, the firm of Beesley & Reeves, accountants, were employed by the county commissioners to audit the accounts of Miss De La Mare. They also directed Miss De La Mare as to how to make the transfer of the bank account to Mrs. Campbell. On the same date that the account at the bank was transferred, Miss De La Mare delivered the keys to the office to Mrs. Campbell, gave her the combination to the safe, and turned the management of the office generally over to Mrs. Campbell, who continued in control of the office until January 16, 1931, when Miss De La Mare ceased to act as deputy treasurer. On January 5, 1931, when the account of Tooele county was transferred there was on deposit to the credit of the county the sum of $ 76,297.73. Between January 5 and January 14, 1931, Mrs. Campbell, as county treasurer, received and deposited to the credit of the county the sum of $ 6,325.59. During that same period the county auditor and Mrs. Campbell, as treasurer, drew against the account checks and warrants in the total sum of $ 18,119.60, which was paid by the bank. The bank closed on January 14, 1931, at which time there was on its books a credit to the county, Annie Campbell, treasurer, the sum of $ 64,503.72. After the bank closed and during the course of its liquidation, and prior to the trial of this cause in the court below, the sum of $ 6,450.37 was paid by the bank commissioner to the county, leaving a balance owing to the county by the bank of $ 58,053.35. At the time the account was transferred from Miss De La Mare, as treasurer, to Mrs. Campbell, as treasurer, the former held as security for the payment of the deposit at the bank 60 shares of the 7 per cent preferred stock of the Utah Power & Light Company of the par value of $ 6,000; 50 shares of the stock of the Amalgamated Sugar Company of the par value of $ 5,000; 710 shares of the Consolidated Wagon & Machine Company stock of the par value of $ 12,000; $ 3,800 par value of Salt Lake Eagle bonds, and $ 22,500 of Blaine County Investment Company bonds. The record is silent as to the market value of these securities and as to what became of them. Miss De La Mare held no other securities for the payment of the money of the county on deposit at the Tooele County State Bank. The minutes of a meeting of the board of county commissioners held on March 3, 1931, shows that a resolution was passed wherein it is recited that Isabel De La Mare was elected for a 4-year term beginning January 3, 1927, and until her successor was duly elected or appointed and qualified; that she filed an official bond; that she continued as the duly elected, qualified, and acting treasurer until January 16, 1931, at which time she abandoned the office and refused to perform her duties; and that Annie Campbell was elected as treasurer, but failed to file a bond and to enter upon the duties of said office as successor of said Isabel De La Mare, or otherwise. At that meeting Phares Haynes was appointed treasurer. He took and subscribed to the official oath of office and filed his official bond, but up to the time of the trial of this cause his bond had not been approved. That part of the resolution which recited the election of Miss De La Mare, her continuing in office until January 16, 1931, her abandoning the office and refusing to perform her duties, and the failure of Mrs. Campbell to file a bond, was objected to. The objection was by the court overruled and an exception taken. That ruling is one of the errors relied upon by appellants for reversal of the judgment appealed from.

The ultimate question to be determined is: Does the evidence thus summarized support the judgment under review? Appellants argue at some length that Miss De La Mare's term of office expired on January 5, 1931, and that she was without authority to hold over beyond that term. Our attention is called to section 9, article 4, of the Constitution of Utah, which provides that:

"The terms of all officers elected at any general election, shall commence on the first Monday in January next following the date of their election."

We also have a statute, Laws of Utah 1921, c. 39 (now R. S. Utah 1933, 19-13-6) which, quoting from the 1921 statutes, provides that:

"The elective county and precinct officers, except otherwise provided for in this title, * * * shall be elected at a general election to be held in November, 1922, and every four years thereafter, unless otherwise provided, and shall take office at twelve o'clock meridian, on the first Monday in January next following the date of their election. * * * All officers elected under the provisions of this title shall hold office until their successors are elected or appointed and qualified."

It is appellants' contention that the quoted statute contravenes the quoted constitutional provisions. Cases construing constitutional and statutory provisions somewhat similar to ours lend some support to appellants' contention. We, however, do not deem it necessary to review the authorities bearing upon that phase of the case in hand because the question thus raised by appellants is set at rest against their contention by the law announced in the case of State ex rel. Stain v Christensen...