Show THOSE SALARY CASES JUDGE ORDERS peremptory auditor commanded to issue the warrants just befaro his departure for the coast on saturday evening judge sanford filed his decisions in the cases of P ii williams vs nephi W clayton bolivar roberts vs nephi W clayton and arthur pratt vs nephew Clayton which were argued before him in october last during the session of the legislature that body appropriated as compensation pensa tion for the territorial superintendent 0 district schools for the years 1886 and 1887 the plaintiff was appointed superintendent of district schools byes governor murray in 1886 and afterwards in 1887 under the provisions of the tucker edmunds law was mado commissioner of the district schools of the territory mr williams made application for tho entire amount appropriated claiming that he was entitled to the salary for 1886 by virtue of his appointment by the lamented murray and that for 1887 because of his appointment by the supreme court the auditor however did not see eye to eye with mr williams in this matter and declined to issue the warrant for the 1883 salary because as he alleged mr williams had not performed the duties of the office which was filled by L john nuttall who had been elected by the people to that position the refusal of the auditor to issue the warrant resulted in the issuance of a writ of mandamus which ordered the defendant to issue the warrant or else show cause why he should not the case was argued and submitted as was also those of arthur pratt vs nephi Se phi W clayton and bolivar JR vs nephi W clayton tho former asked that the ba compelled tc issue to him a warrant for the salary of the auditor of public accounts for the years 1886 and 1887 and the latter made the same request regarding the salary of the territorial treasurer for the same period 1500 the decision in the pratt vs clayton case is as follows this proceeding ia brought to compel the defendant de facto auditor of accounts for utah territory to issue hu warrant in favor of the plaintiff by statute the public auditor shall examine and audit all pub lie accounts connected with the pacu biary affairs of the territory comp vol 1 page The claim of the plaintiff has not been examined and audited though requested on the other trial the plaintiff offered evi dianco showing that he was the legally appointed officer and entitled to the office and that his right thereto biad been determined by the supreme court of the territory in ahr case of tha people vs clayton Paca ilc he porter in that casa the court held that this plaintiff pratt was the auditor of public accounts and that this defendant clayton Clayt cn was not that decision although appealed appa aled from has not been modified or reversed and must be regarded as the law of this case where there is on appeal a new trial of the issues before tried and same issues are tried on the review it has been hold that the prior judgment does not conclude ane rights of the parties on tho appeal taken in tho case referred to supra thera has not bean and cannot be a new trial of tha issues the appeal does not therefore the judgment rendered below blank vs wheeler 28 corn the judgment roll in the case of the people vs clayton was properly received in evidence 80 N Y it may be regarded as well settled that the plaintiffs right to ih domce has been fully determined ter mined and that ada cation ia conclusive until reversed or set aside in some proceeding instituted for that pur posa the objection that the plaintiff has not performed the services required of him by law to be performed as au aitor comes with bad grace from the who has prevented tho rendit B of such service and is wholly nn tenable that is a matter of which the defendant may not avail himself it is further argood that the plain claim should not bo audited by the defendant because lie haa already his own claims for services as auditor and that the warrant so issued to himself has been paid by the treasurer of the territory the fact that he has audited his own demand is no reason why ho examine and audit the claim of the auditor who has boon declared to be the legal incumbent of the office the quo carranto warranto war judgment vas notice to him and that judgment of ouster was rendered long prior to the date of the audit of his own claim the territorial treasurer whoa the demand of tho plaintiff shall have been audited and presented to him for payment may raise sueh defenses and objections as he may think prop the drawing of the warrant the examining ef the claim of the plaintiff and its audits are acts purely ministerial erial and should be performed by the defendant A peremptory writ of mandamus may issue out of and under tho seal 01 directing the defendant forthwith to proceed to examine and audit the demand of the plaintiff in the williams vs clayton cass 9 court said it is a role generally observed aud followed that a writ of mandamus will sot be granted to a person who has a full fall remedy of other moans to establish his rights in this case however the plaintiff shows that the office to which he claims he was duly appointed has been abolished and no incumbent thereof disputes his right thereto and that he cannot in a proceeding by quo carranto warranto war obtain a decision as to who has the legal title at the trial was shown that the plaintiff had held occupied and discharged the duties of superintendent of district schools for utah territory under an appointment thereto by the governor of the territory dated march 13 1886 the power of the governor to make s similar appointment was examined and decided by the supreme court of this territory in the case of the people vs clayton 11 pacific reporter and that decision must be received authority for holding the appointment of the plaintiff herein to be valid and legal the defendant alleges in his an on return to the alternative writ granted him that L john nuttall was the acting superintendent of district schools from august 1881 up to january 1887 but if the governor held the power to appoint tho plaintiff on march that appointment annulled the office ol 01 John NuttalL the sum apportioned by the legislature in the year 1885 for the payment of the salary of the superintendent and commissioner of schools for 1886 and 1887 was not apportioned by that body and tho defendant had BO power or right to make such apportionment portion ment upon the proofs presented at the time of the issue herein I 1 am of tho opinion that the plaintiff has shown sufficient cent cause to entitle him to a peremptory writ of mandamus therein let tharo fore such a writ issue out of and under the seal of this court directing the defendant herein to do and perform such acts as are prayed for herein roberts vs clayton this is an application that a writ of mandamus issue out of the court for tho reasons slated in the cases of williams vs clayton and pratt vs clayton and upon the proofs presented at the trial I 1 am of the opinion that a writ should bo granted as grayd for herein the effect of the payment of the money out of the territorial treasury to another party claiming to be troas aurer may be raised when a demand for payment to this plaintiff is mado after the audit let a peremptory i writ issue |