Show I N KNOCKED OUT e I I y A s L Williams is in I 1 foe Consomme A LENGTHY DECISION i I < The Quo Warranto Case Carefully Care-fully Reviewed by Judge Zane AND LGEIARDY IS THE COLLECTOR A Very Interesting ana Able Opinion Based Upon Reason and the Law Judge Zane rendered his decision yesterday yester-day morning in the case of the People ex re vs L G Hardy involving the title to the office of collector of Salt Lake county The decision was in favor of Mr Hardy the present incumbent It was as follows This is an action to determine the claims of A L Williams and Leonard G Hardy to the office of county collector of Salt Lake county The relator asks that Hardy maybe may-be adjudged to be unlawfully holding the office and that he be removed and that A Williams be adjudged to be entitled to it and inducted into it etc hIt appears from the facts agreed upon so far as 1 deem it necessary to refer to them that ono Nathaniel Jones was elected to the office of county clerk of Salt Lake county at the general election held on the first Monday of August 1SS4 and that ho duly qualified and held it that on the first Monday Mon-day of August 1SSG he was reelected as his own successor that in October of the same jear ho resigned and the respondent Hardy was appointed by the county court to fill the vacancy That on the first Monday Mon-day of August 1SS7 Hardy was e cote d to the office as his own successor and qualified qual-ified and entered its duties and at the general gen-eral election in August ISbO he was again elected ana qualified and in 1891 at the general eection in August Mr Williams was elected and that he has executed a bond which has been approved by the county authorities Under this state of facts the question arises was the election of Williams in August 1S91 and the election elec-tion of Hardy in August 1SS9 authorized by law And a further question arises was the election of Hardy at the general o oction in August 1SS7 valid The counsel rely upon sections 201S and Q20 of volume 1 compilation of 1SSS The first section is At the general election in 387S and biennially thereafter there shall be elected by the qualified voters of the several counties of this Territory an assessor as-sessor and collector of each county whose te m of office shall be for two years and until their successors are duly elected or appointed and qualify Each collector elected under the provisions of this act shall enter upon the duties of his office on the 1st day of June next follow fol-low ng his election having first qualified It will be seen that this section provides that the election shall be held at the general gen-eral selection in 1878 and biennially thereafter there-after The term is two years The election elec-tion is August of the years indicated by even numbers and the qualification in the June following The qualification is in the year indicated by odd numbers and at that time the term commences and is for two years and until their successors are duly I elected and qualified The time for I the election occurs at the expiration I of two years from the preceding election but if there is no election at that time the term is according to the provisions of the statute extended till the successor is duly elected and qualified so that the length of the term depends upon the election of the successor There can be no actual vacancy as long ao the rightful right-ful occupant continues to hold the office that is until death resignation removal or cqine legal disability The statute is evidently evi-dently like the statute of most of the states in respect to similar offices It is so provided in order that vacancies in the office of-fice may not occur from a failure to electS elect-S ction 2020 is relied upon as authorizing by implication the right to election in August 1SS7 and also in August 1SS9 and in 1891 The language that it is insisted raises the implication is this In case of the office of the assessor or collector becoming vacant the county court of the county where such vacancy occurs shall have power to fill such vacancy va-cancy by appointment until the next general gen-eral election The term vacancy is here used If there is a vacancy the county court has the power to fill it by appoint mont but if there is none the county court lies no power to fill it Did the failure to elect at the time fixed by law create a vacancy va-cancy or did the law itself fill the vacancy by saying that the term of the incumbent or the office shall be until the successor shall be elected and qualified The authorities are decided as to the construction of similar language The authorizing to appoint does not arise merely from a failure to elect it arises only when the death of the incumbent occurs oc-curs or he has resigned been removed or is under some disqualifying disability But when the incumbent is qualified to hold the office and he still is in the office it does not become because of a failure to elect a successor his term still goes on until the successor comes in and takes the place there is 110 vacancy the old officer goes out and the successor takes his place The office is filled also when an officer holds over in that case the man is big I own successor Under the section quoted the county court when a vacancy occurs bas the power to fill it by appointment until tho next general election It is clear there that the county court fills the vacancy until the noxt general election and then the people fill it and the term terminates Us it would have had there been no vacancy The vacancy that precedes the election and qualification last referred to is filled by the county court before and the remaining portion of the term is filled by the voters at the election Other provisions of the statute of the territory refer to vacancies Section 270 relates to territorial or county officers It provides in case of the death resignation or other disability of any territorial officer authority is given to fill There the vacancy va-cancy is described as by death resignation or other disability In the section that follows the one referred re-ferred to the words are used in case of vacancy by the death resignation or other disability of any probate judge and again Or in case of a vacancy by the death resignation re-signation or other disability of any county or precinct officer except probate judge or justice j of the peace made elective and soon so-on In section 276 of the ame book Congress Con-gress in providing for the election of na delegate l to Congress used this language Paine in his work on elections refers numerous decisions In section 227 he J says The constitution of California contained con-tained the following sections When any office shall from any cause become vacant and no mode is provided by the constitution constitu-tion and laws for filling such vacancy tho governor shall have power to fill such vacancy va-cancy by granting a commission which i shall expire at the end of the next session of the legislature oat r o-at the next election by tho people peo-ple nor shall the duration of any office not fixed by the constitution ever exceed four years A statute was in these words f li Each of said commissioners shall hold his office for the term of fonr years and until bis successor is elected commissioned and qualified us in this act provided The supreme court held that under the constitution con-stitution of the state it was proper that executive officers elected by the people peo-ple should hold over rather than that the duties should devolve upon those Jn whose election the people had AO choice that temporary executive apt a t t Y6l r I pointments were admissib e only when 1 there were no incumbents of particular offices to hold over and perform their duties That if there was a vacancy in any just sense after the expiration of the term and before the election and qualification qualifica-tion of a successor the statute itself filled the vacancy for the time being by provid ing that the former incumbent should hold until the election and qualification of a successor and that a failure to elect a successor suc-cessor to an office at the expiration of his term did not create a vacancy to be filled bY executive appointment A township trustee who was elected at the April elec tion in 1SGS but did not then give a new bond did not vacate the office but was entitled en-titled to hold it until his successor was elected and qualified An officer elected for a term of years and until his successor is chosen and qualified may hold over for an indefinite period if no successor be elected and qualified Reference has also been made to a decision cision of the supreme court of Indiana made in 1883 found in the Northeastern Reporter volume 16 page 3S4 State vs Harrison It is upon the point as to what constitutes a vacancy for which an appointment appoint-ment may be made The case involves a controversy between the relator Joseph L Carson and the respondent Thomas H Harrison concerning the right to exercise t e office of president of the several boards of trustees of the benevolent institutions of the state The court says Pursuant to the provisions of the act the respondent was elected president of the boards on the 7th day of February 1883 The legisla uro failed to elect a successor in 1SS7 as the law required and the respondent continued tin ued and still continues in the office asserting as-serting the right to hold over until a sue lessor shall have been duly elected by a succeeding legislature Being of opinion that the failure of the general assembly to elect a successor produced a vacancy in the office the governor appointed and commissioned the relator as president of the several boards on the 27th day of May 18S7 The law provided that a person per-son should hold until his successor was elected and qualified and the court referring refer-ring to the law says So much of the above mentioned section as applies to tne office in dispute reads as follows When during recess of the general assembly a vancancy shall happen in any office the appointment of which is vested in the general gen-eral assembly the governor shall fill such vacancy by appoinment which shall expire when a successor shall have been elected and qualified It must nevertheless never-theless bo borne in mind that the power of the governor to make a valid appointmont does not arise until there is a vacancy in fact The court says The word vacancy cancy as applied to an office has no technical tech-nical meaning An office is not vacant so long as it is supplied in the manner provided pro-vided by the constitution or law with an incumbent who is legally qualified to exercise ex-ercise tue powers and perform the duties which pertain to it and conversely it is vacant in the eye of tne law whenever it is unoccupied by a legally qualified incum bent + vho has a lawful right to continue therein until the happening of some f unun e eventAfter After citing a number of cases the court says When an office has been conferred upon one legally eligible and has been accepted ac-cepted no vacancy can oe said to exist therein until the term of service and rig ht to hold as fixed by the law expires or until un-til the death resignation or removal o i the person elected or appointed iI The policy of provisions of that nature ito s i-to prevent the happening of vacancies in office except by death resignation removal re-moval and the like They rest upon the assumption that the wiser and more nru dent course is in case the electoral body fails to discharge its functions to authorize tho incumbent to hold over until the succeeding suc-ceeding election rather than that a vacancy should occur to be filled by the appointin power In recognition of the wisdom of this policy the or anic law of the state declares de-clares as follows Whenever it is provided pro-vided i in this constitution or in any law which may be hereafter passed that any officer other than a member of the general assembly shall hold his office for any given time the same shall bo construed to mean that such officer shall hold his office for such term and until his successor shall have been elected and qualified 4 The term of office is fixed at two years cer tain with a contingent extension YVhea the contingency happens this extension is as much a part of the entire terms as any portion of the two years It is CtrLlilIl tuuruioru IUBL an emcee to whIch the above constitutional provision applies are held by the same title or by as h < gh and lawful tenure after the prescribed term until the title of a duly elected an J qualified successor attaches as before and Airing sUch term This right to hold over continues until a qualified successor has been elected by the same electoral body as that to which the incumbent owes his election elec-tion or which by law is entitled to elect a successor That case lays down the rule e explicitly that where an officer holds for a term and until his successor is elected and I qualified that the time he holds after the term fixed say two years in this case is as much a portion of his term as the time preceding i pre-ceding That in either case he holds by virtue of the law The law makes it a part of his term The case of Parcel vs the State ex rel Lowery in the 110th Indiana page 112 This was a proceeding commenced on the 10th day of January 18S6 by un information informa-tion t in the name of the state on the rela tion of Robert A Lowrey against Clark R j Parcel to test the right of the latter to hold I the office of county commissioner for the i Third district of Pulaskl county In that 1 case the incumbent died and Clark R Parcel was thereupon appointed to fill the vacancy It seems that there was no ques ion about tho vacancy there was an actual vacancy caused by deathnot a case where the person held over The court says But according to the agreed statement state-ment of facts it does not appear that anyone any-one was elected at the November election in 1SS4 That was the regular election Hence at the expiration of Lowrys second term no successor having been elected and qualified he continued rightfully to holdover hold-over until his successor was elected and qualified No election having taken place in 1SS4 to fill the term which was to commence com-mence in 1SS3 that term remained vacant except as the relator occupied it under his right to hold over until the election and qualification of his successor The term being thus vacant it came under the provision pro-vision of section 4678 R S 1881 which required re-quired that at the general election in 1SS6 all existing vacancies in office should l be filled unless otherwise provided by law The question is was itotherwise provided by lawl The statute referred to it as follows fol-lows A general election shall be held on the first Tuesday after the first Monday Mon-day in November in tho year 1882 and biennially thereafter on the same day at which election all existing vacancies in offices and all offices the terms of which will expire before the next general election thereafter shall be filled unless otherwise provided by law This act regarded the offices substantially as vacant for the purpose of being filled when a person held over There was a law expressly providing for the election where there were any existing vacancies or where the term would expire before the next general election The court says The relator having been elected his own successor in 18S2 his second term of service S ser-vice must be deemed to have commenced at the regular period in 3SS2 He could not by holding over after the expiration his first term and failure tovqualify until one year of his second term had pissed extend the latter term or make his second term commence at an irregular period It seems that he was elected at the regular time but he deferred qualifying for one year and claimed in consequence of his not qualify ing for one year that his term did not commence com-mence until that time The court says he cannot extend his term in that way He i was in office and it was his duty to qualify I but if he did not qualify his term commenced com-menced just the same The case is not analagoun to the one in point Plaintiff also relies upon Sawyer vs Haydon in the First Nevada page G4 The contest was as to the office of prosecuting attorney The one in office resigned and respondent was appointed and entered upon the duties of office An election was held and the plaintiff received the majority of 1 the votes The points necessary to refer to are It is urged on tho part of tho appellant I ap-pellant first that the general policy of the territorial laws was to make all office elective as far as practicable and when a case of necessity arose requiring tho temporary tem-porary appointment of an elective officer that appointment should not extend and was not by law intended to extend beyond the next general election when the people would have an opportunity of electing Second that the law having vested the peo fie with cower to elect crosecutlntr attor i a eys for the full term they would have the rIght without any special statute on the subject when assembled at a general election to fill any vacancy in that ffice that might then exist and also to elect an officer to fill the unexpired term when the vacancy had temporarily been filled by the county commissioners In that case before the term had expired it seems a general election occurred and the plaintiff was elected at that general election not at he end of the term The court says The uestion then resolves itself into this Can the people by virtue of an Inherent right in themselves when assembled at a general eral election elect an officer for a fractional term when the statute law authorizes them to elect for the full term but is silent in regard to the election of such officer for the ractional term But we think no court or judge has gone so far as to hold that the people might hold an election or vote for any particular officer at a general election unless special revision was made for electing such officer for the particular term to which he was seeking to be elected either in the constitution or some statutory enactment actment For an able and lucid argument on these points we would refer to the opinion of Mr Justice Baldwin in the case of McCune vs Weller 11 Cal 49 The court in this case however uses this language It would apply however to an officer appointed In this case had the law of 1862 after providing pro-viding for the election of a prosecuting attorney at-torney for two years gone on in the same law to provide that in tho case of vacancy the county commissioners should fill that vacancy until the next general election and no special provision had been made to fill it for any period reaching beyond the next election perhaps it might be said here was a case where the legislature had by direct language conferred upon the eleo tors of the county the right at the general election biennially to elect a prosecuting attorney and had by implication conferred confer-red on them the power to elect for a fractional frac-tional term The case in hand is one In which there was no vacancy where the person holds over by virtue of the law There is no vacancy and no appointment or right to appoint The State vs Dodson Northwestern Reporter Re-porter volume 31 page 783 is cited The court says Charles W Meeker was elected to said office qualified and entered upon the duties thereof that on the 6th day of March 1886 the said Meeker was by the board of county commissioners of said county legally removed from said office of-fice for cause and that on the same day the respondent was duly apppointed to said of nflee ficeby said board to fill the vacancy caused by the removal of said Meeker and that said respondent duly qualified and entered upon the duties of the office and has continued con-tinued to fill the same hitherto It is seen that there was an actual vacancy a vacancy va-cancy in fact The court says The points presented and urged by the respondent may be stated as follows 1 That no election of clerk of the district court in i and for said county could be legally held at the general election of 1886 Because i t was not the regular timo for electing the clerk but was a general election But the court refers to the law and says Section 101 of the same chapter provides that every civil office shall be vacant upon the hap I pening of either of the following events al t any time before the expiration of the term I of such office as follows 1 The resignation resigna-tion of the incumbent 2 His death 3 His removal from office etc In this case there was a resignation the law provide it should be vacant Section 105 provides pro-vides that appointments under the provisions of this chapter shall be in writing writ-ing and shall continuo until the next election elec-tion at which the vacancy can be filled and until a successor is elected and goal lied etc Section 107 provides that vacancies vacan-cies occurring in any state judicial district county precinct township or any publi elective office thirty days prior to any general election shall bo filled thereat T 0 apply this provision to the case at bar had < Meeker been removed less than thirty day before the general election of 1886 that election would have been one at which the vacancy caused by his removal could not have been filled not because of any peculiarity i peculi-arity in the term of office but because of the language of the section last above quoted But as the office became vacant thirty days before said election it was an election at which said office could be filled I thus have reached ww hreayched the conclusion and from it I see no escape e that a clerk of a district court in and for Saline county could bo legally elected at the general election of 1S6 whose term of office would expire in the month of January 1883 Of course the law there expressly provides for the elec tion But the trouble with this case is that this section relied upon provides that ata vacancy shall be filled by appointment until the next general election and at that next general election it shall be filled by election until the end of the term but there is no vacancy here There was no vacancy that authorized an appointment and hence this law does not apply because it expressly ex-pressly says The county court of the county where such vacancy occurs shall have power to fill such vacancy by appointment appoint-ment until the next general election but there was no vacancy in this case Ti ute law had filled the office and tho officer in it was holding by virtue of tho law ho was there lawfully and had the right to hold until his successor was elected and qua i i fied and then no vacancy will occur because be-cause the successor will take office just as his successor would have taken it if the election had been hold on the 1st day of August 18SS at the proper time and his successor had qualified in the following June 1889 There was no election in ISgS and in June 1889 there was no authority to hold an election because there was no vacancy and the + same as to 1891 There had been no ap pointment made and there was no vacancy va-cancy and the appointed in office as an I officer held over until his successor was elected and qualified By election of an officer it means a legal election an officer elected by law Here there was no election provided for in August 1889 or in i891 either expressly or by implication because there was no vacancy I see no escape from the conclusion that the present incumbent in-cumbent Mr Hardy holds over under the statute and that he will hold until his successor suc-cessor is elected at the general election ni August in 1892 and he is qualified unless the legislature changes the law or a vacancy occurs by death resignation removal or other disability |