Show A DECISION MADE Auditor Pratt to Pay Over the Appropriation For the Aerlcultural College Board of Edo cation A Son of John Patterson Nearly Killed by n LullOther rewB The most important case in the Founth district court was that of W S McCornick et aL astrustees etc vs Arthur Pratt et a1 Some time ago tho plaintiffs in thu action brought suit to compel Auditor Pratt to pay to them the G5000 appropriated appropri-ated by the territorial legislature for the building and completion of the agricultural college ut Logan The main question this case is whether the members of tho board of construction constructon of the agricultural college of this territory cers as named in the appropriation act are oln cersAn An office is a special trust or charge created by competent authority Kent gives this definition Offices consist in aright a-right and a corresponding duty to exercise u public or private trust and to take the emoluments belonging to it The duties of tbe office must be of D public or private nature and should interest or affect the pubuo right or interest of the state and where the employment is by the state and duties are public or private the position ian i-an office I not merely honorary certain duties v ul fcp connected with It the performance of Men will be the consideration for us being conferred upon n particular individual individ-ual who for the time will be an officer 1 he officer is distinguished from the employee in the greater importance dignity responsibility and independence of I his position in being required t tko an official oath and give an official bond in tim liability to be called to account as 0 public officer for misfoasauce or nonfeasance non-feasance in office and often in tne tenure of the position I Section 4393 Requires all officers to take an oath and file tao required ooud under I penalty The legislature in creating this board of I construction must have intended to create the office with referense to the above act as it imposes upon each member of such I boar the duty of giving a bond in tho sum of 825000 to bo approved by the territorial auditor and to qualify by taking the official oath on entering upon their duties s Each member is to receive 5300 for his c services to be paid upon the completion of the building warrants for the 05000 appropriated ap-propriated are to be drawn by the auditor of public accounts upon the order of tbe chairman of tho board I any doubt could arise as to what the intention of the legislature was in creating the board and whether in doing so it intended in-tended to create an office such doubt is dispelled when we read from the act itself that each member of such boark shall Quaufv by taMng Vic official oath before entering upon their duties To require the board to qualify and take the official aatii is to lix the official status of the board it is to require them to taKe the official oath pertaining to the office thus created which they hold or are about to hold and to which tbey are appointed That is that they will perform tao duties of the office to which they have been appointed ap-pointed to the best ol their ability and support sup-port the constitution of the United States To qualify is a term used in legally assuming the duties of an office To take the official oath is a term that implies an office exists which is to bo fled by the person taking tho oath It is plain that the duties of this board are not merely honorary honor-ary A great public trust and duty is imposed im-posed upon it They aro to plan negotiate nnd expend tie sum of 05000 for buildIng build-Ing and constructing the agricultural col iCe of this territory they do this n their I official capacity as a board of construction The case of the people vs Nichols 52 N Y 478 and People vs State 45 l 397 are readily distinguishable from the case at bar in many respects The dissenting opinion of Justice Lawrence in the last named case is supported by the great weleht of authority of this country Saction 7 of the organic act conferred the power of authority of the appointment of such officers in the governor by and I with the consent of the legislative assembly assem-bly ThE object of this section of the organic nct as held by Mr Justice Lawrence in a similar case must have been to guard the purity or the legislature by taking from it the power of creating lucrative or important import-ant places and bestowing them on personal or party adherents And the provisions of the act should be BO construed as to effectuate this purpose For these and other reasons and without entering into a more critical examination of this question I must hold that defendants defend-ants demurrer to plaintiffs petition and writ of mandate is overruled and defendants defend-ants demurrer to petition of intervention of George Thatcher et al is sustained Permission granted defendant to answer over in three days and in default plaintiffs writ of mandate is granted as prayed Payment to be made by quarter yearly installments in-stallments as provided in C L 1SSS p 253 see 20 as prayed Thirtythree authorities authori-ties are here cited |