Wenner v. Smith

• Decision Date: 15 January 1886
• Citation: 4 Utah 238,9 P. 293
• Court: Utah Supreme Court
• Parties: URIAH J. WENNER, RESPONDENT, v. ELIAS A. SMITH, APPELLANT

9 P. 293

4 Utah 238

URIAH J. WENNER, RESPONDENT, v. ELIAS A. SMITH, APPELLANT

Supreme Court of Utah

January 15, 1886

APPEAL from a judgment of the district court of the third district. The opinion states the facts.

Judgment of the court affirmed with costs.

Messrs Bennett, Harkness and Kirkpatrick, for the appellant.

Mr. U J. Wenner and Mr. Thomas Maloney, for the respondent.

POWERS J. ZANE, C. J., and BOREMAN, J., concurred.

OPINION

POWERS, J.:

This case comes to us on appeal from the third district court. It appears by the findings of fact, that the plaintiff Uriah J. Wenner was in August, 1884, and had been for three years prior thereto, a citizen of the United States and a resident and taxpayer of the city and county of Salt Lake, in Utah Territory, It also appears that there was no election in the territory of Utah in August, 1882, as provided by the statute, for the reason that all the elective offices of the territory had been vacated by the act of Congress, approved March 22, 1882, entitled "An act to amend section 5352 of the revised statutes of the United States, in reference to bigamy, and for other purposes," and the fact that the commissioners appointed under section 9 of the act did not arrive in Utah to fill the offices and provide for the election. In consequence, therefore, of the provisions of the act, there was no election of county officers held in Utah in 1882.

No question is made but that in August, 1880, the defendant possessed all the qualifications required by the statutes of Utah territory for holding the office of probate judge of Salt Lake county, and at the general election held in August, 1880, he was elected to that position, and on the twenty-fourth day of the same month he was commissioned by the governor of the territory as such officer, entered upon the discharge of the duties of the office, and held it continuously until March 1, 1884.

Some time prior to 1862 the defendant has been a member of the Mormon church, and has believed that polygamy was permissible to him. He was married to two women previous to 1862, and since then to the present time he has treated the women as wives. He has not entered into new or other marital relations since 1862.

September 16, 1882, the governor of the territory of Utah, Hon. Eli H. Murray, deeming that there was a vacancy in the office of probate judge of the county of Salt Lake, under the provisions of the act of Congress referred to, and a provision of a subsequent act of Congress, approved August 7, 1882, the same being a provision contained in chapter 433 of the laws of the first session of the forty-seventh Congress, appointed the plaintiff to the office. The plaintiff thereupon, and on the eighteenth day of September, with two good and sufficient sureties, to-wit, William G. Green and Adam S. Patterson, executed an official bond conditioned for the faithful performance of his official duties as probate judge, in the penal sum of five thousand dollars. The sureties were residents of the county of Salt Lake, and each worth the sum of five thousand dollars over and above his debts and liabilities in property not exempt from execution. On the same day that the bond was executed the plaintiff took an oath to the effect that he would honestly and faithfully perform the duties of the office of judge of probate, which oath was then and there attached to the bond.

James Cummings was then the treasurer of Salt Lake county, and on the eighteenth day of September the plaintiff tendered him, at his office, the bond with the oath attached and requested the treasurer to file the same. Cummings then and there unqualifiedly refused to approve, or file, or accept the bond and oath, assigning as his only reason for such refusal that he did not recognize the appointment of the plaintiff to the office. Thereupon the plaintiff deposited the bond and oath with the secretary of the territory, for the use and benefit of whomsoever it might concern, as being the best substitute practicable for the filing required with the county treasurer. On the twenty-second day of September, 1882, the governor of the territory issued to the plaintiff a commission for the office of probate judge, in due form and under the seal of the territory, duly attested by the secretary. On the same day the plaintiff exhibited his commission to the defendant, informed defendant of his appointment and qualification to and for said office, and demanded of defendant that he relinquish to him the office of probate judge, and deliver to him the books and papers pertaining to the office--all and singular thereof, and the defendant refused.

The plaintiff, in accordance with the provisions of the statute, was appointed for the term of eight months. The fees and emoluments of the office of probate judge, received by the defendant during the term of eight months next ensuing September 22, 1882, amounted to the sum of one thousand four hundred dollars. For these fees and emoluments so received, the plaintiff made demand of the defendant before bringing suit, but payment was refused. The defendant held the office during the said term of eight months, believing that he had a right thereto, and the fees and compensation received by the defendant were not more than the reasonable worth of the official services performed.

Upon this state of facts, the learned judge who tried the case in the court below found as conclusions of law:

1. A vacancy existed in the office of probate judge of Salt Lake county on the sixteenth day of September, 1882, which the governor of Utah territory was by act of Congress authorized to fill by appointment.

2. By the appointment of the governor, by the efforts made to qualify, and by the commission of the governor, plaintiff became and was on the twenty-second day of September, 1882, entitled to enter into and hold said office of probate judge, and have and keep the fees and emoluments thereof for the term of eight months next ensuing.

3. Plaintiff is entitled to judgment against defendant for the sum of one thousand four hundred dollars and interest thereon, at ten per cent. per annum, from August 28, 1884, amounting, principal and interest, to one thousand five hundred and sixty-three dollars and thirty-three cents, and for costs of suit.

There are three questions raised by the record: 1. Was there a vacancy in the office of probate judge which the governor was authorized to fill? 2. Can the plaintiff recover without first vindicating his title to the office in a direct proceeding? 3. What is the measure of damages if the plaintiff was entitled to judgment?

1. We think that the first question must be answered in the affirmative. We think that on the day that the appointment was made a vacancy existed in the office, which the governor was authorized to fill, and that he performed his plain duty in the premises. It had been provided in substance by section 8, chapter 47, of the first session of the forty-seventh Congress, that no bigamist, polygamist, or person cohabiting with more than one woman, should be eligible to or entitled to hold any office. Congress also enacted, as will be seen by reference to page 313 of the laws of the same session, that "the governor of the territory of Utah is hereby authorized to appoint officers in said territory to fill vacancies which may be caused by a failure to elect on the first Monday in August, 1882, in consequence of the provisions of an act entitled 'An act to amend section 5352 of the revised statutes,'" etc.

This act was approved August 7, 1882, the day appointed by law for the annual election in Utah, and it is conceded that the election failed in consequence of the provisions of the first-named act, commonly called the "Edmunds act."

The law authorizing the governor to fill vacancies caused by a failure to elect at the election of August, 1882, is commonly called the Hoar amendment. At the time of its passage the statutes of the territory provided "that on the first Monday in August, 1874, and every two years thereafter, there shall be elected by the qualified electors of the several counties of Utah territory one probate judge, whose term of office shall be two years, and until his successor is elected and qualified." The first Monday in August was also the day for the general election: Comp. Laws 1876, sec. 18.

On the first Monday in August, 1880, the defendant was elected to the office of probate judge of Salt Lake county, and shortly after entered upon the duties of his office. By the law just quoted, the successor of the defendant would have been elected at the election on the first Monday in August, 1882 had that election been held. Had such a successor been elected, there is no question but that he would have been entitled to the office by filing the bond and oath of office. As we have seen that election was not held, because Congress, by section 9 of the Edmunds act, vacated all election offices in the territory, and those appointed by the president under the provisions of that section had not qualified and were not in a position to conduct the election on the day provided by the statutes of the territory. The condition of affairs was brought to the attention of Congress, and it passed the law authorizing the governor to make appointments: 13...