Show DECISION IN THE COUNTY DISPUTE in the third district court wednes day sept 23 judge J zane rendered the following decision in the case of the people of the territory of utah ex rel and walter murphy county attorney of salt lake county plaintiff vs leonard 0 hardy defendant his honor said this is an action to determine the claims of A L williams and leonard G hardy to the office of county collector of salt sak lake county the relator relate r asks that hardy may be adjudged to be unlawfully holding the office and that he be removed and that A L williams be adjudged to be entitled to it and inducted into it etc it appears from the facts agreed upon so far as I 1 deem it necessary to refer to them that oue one nathaniel jones was elected to the office of county clerk of bait lake aou county nty at the general election held on the first monday of august 1884 and that lie he duly qualified and held it that on the first monday of A august aguf it 1886 he was reelected elected re as his own successor that in october of the same year he resigned and the respondent hardy was appointed by the county court to fill the vacancy that on the first monday of august 1887 hardy was elected to the office as his own successor sorl and qualified and entered its duties and at the general election in august 1889 he was again elected and qualified and in 1891 at 3 the general election in august mr as williams was elected and that he fehte hea ex executed eluted a bond which has been pro proved ved by the county aut authorities ula DB ap an der this thia state of facts the question arises was the election of williams in s august 1891 and the election of hardy in august 1889 authorized by bv law and a further question lu estion arises arim 1 was the election of hardy at the I 1 ken cell oral eral election in august 1887 valid the counsel rely upon sections 2019 a and nd 2020 of volume 1 compilation 1888 the sect or of 1 1 ig 11 1 at the h general election in 1878 and biennial ly thereafter there shall be elected by the qualified voters of the several of this territory an all assessor counties and collector for each county whose fernr of office shall be for two years and u until antil their successors are duly elected or appointed and tand qualify v each coU coW ector elected under the visions of this act shall enter MO dro d duties of his office upon unon the on the fl first rat d dav 0 of r june next following his elee election tion ag hav av first 11 II I I 1 ing qualified fled it will w be seen that this section i provides that the election shall be held at tile the general ela 4 elee tion in 1878 and biennially th 1 after the term is two the election is august ye vea of the years indicated by eve even nu number abers and the qualification in the ju june ne following the qualification 1 is in th the e year indicated by odd Du numbers nabers and ana that time the term commences and to 1 for two the years term ot of officer is i for two years and until their I 1 are duly elected and qualified successors mi 1 time for the election occurs at the 1 pir pi ration atOD of two years from the dreoer ek ing election but if there is no electon boson at that time the term is S a according c 0 adl TWO the provisions gf this stat statute ute exten extended till the successor is duly elected thattie len length 9 th of thet chete baha vm an 1 depend a upon the electia ri of or there can be no actual vacancy long as the e occupant Pa ot co nUna to hold the office that is until death I 1 resignation removal or some iea leand disability the statute e is evidently like the statute of most moat of the states in respect to similar of offices it is few provided provided that in order that en nales in the office may not occur from ft a a failure to elect section 2020 is relied 1 upon as authorizing by implication the thai right to election in august 1887 and I 1 also in august 1889 and in 1 1 1891 tho tt 1 language that it is insisted raises abi tte implication is this in case of the office of the or collector becoming v vacant the co couff ty court of the county where au udde vacancy occurs shall have power to Q such vacancy by appointment until th next general election the ten vacancy is here used if there isi ia vacancy the county court has tb power to fill it by ap appointment p 0 bettt att there is none the cou county 1 ty court has 13 power to fill it did the failure 1 I elect at the time fixed b by y jaw C create vacancy or did the law itself fill kv til vacancy by saying that the terin the of the office shall few g until the successor kuc huc cessor shall be elected qualified the authorities are decided as tot construction of similar language 1 ll 11 authorizing to appoint does not ashak merely from a failure to elect I 1 jt lt arfi eft only when the death of the occurs or he has resigned bemi beauhl c moved or is under some disqualifying disability i but when the incumbent qualified ualifi ei to hold the office and he is a q still ila in D the office lt it does oes become vacant because of a not failure to elect a successor his still goes ou on until the successor terna term in and takes the place there is comes the old officer goes out vacancy bancy va successor takes his place the and t the be nil fill tl tj also when an officer effice is office holds over in that case the man is his successor under the section own the county court when a minted d quote sancy ncy occurs i has the power to fill it jacl until the next general hw appointment in elec by L tiou ann it is clear there that th the e court fills the vacancy until county general election and then next the e people abole fill it and the term terminates the would have had there been as it i no VACA ncy vacancy that precedes the the and qualification last referred raf erred inin election filled sued by th the a county court before to 19 remaining portion of the term nii the and voters at the election filled flold by bv the in visions of the statute of khz the other provisions pro refer to vacancies section territory m to territorial or county w M re relates rii lates it provides in case of the officers S resignation or other disability of death S territory Terri territorial tor Is I 1 officer authority is auy any fill fili there the vacancy is III S Vs bribed in to so as by death resignation 0 or r other othe r disability that follows the one section I 1 in n tl the e words are used in I 1 to the referred tee the death of vacancy r by case gon aber other dif disability ability of any probate or arid and again or in case of a juds e the death resignation or v by disability of any county or pro pre other officer except probate judge or ednot 0 made elective of the peace justice 5 son in section of the same on and so for the sk in providing election section book ICO congress of agress a de delegate ega t e to Cong congress reps used this language paine in his work on elections re decisions in section fors faro to numerous athe the constitution of 22 7 beisys bes be says the following sec contained Can california fornia any office shall from hona when become vacant and no icv pause any provided ded by the is provi 5 mode and laws 0 tor for filling such tion a the gove governor anor shall have vacancy wc ancy by grant such vacancy an fn power ing gwi er commission to nil fill which shall elpi expire re n a next session of the the of end eind at the or at the next election by office the people op not Tenor nors fixed shall hall by the the duration constitution of any exceed four fou r year A statute was ever words each of said commis in in these rioters snail shall hold his office for the term of four ye years sirs and until his buccos commissioned and elected is mor bor qualified ll 11 as in this act provided the barreme court held that under the constitution of the state it was proper that executive officers elected by the people should hold over rather than should devolve that the duties upon those in whose election the people had no choice that tha t temporary executive ampol appointments were e admissible only when there were no I 1 incumbents neu of par offices to hold over and per form their duties that if there was a sense after the ex m daanoy in any just W pi ration of the term and before the M election and qualification of a r mor the statute itself filled 10 lied the vacancy 0 tw for the time being by providing that the former incumbent shou should id hold un til the election and qualification of a successor and that a failure to elect a successor eor to RD an office at the expiration of his bis term did not create a vacancy to be filled by executive appointment A township trustee who was elected at the april election in 1868 but did not then give a new bond did not vacate the office but was entitled 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 of the supreme court of indiana made in 1888 found in the northeastern reporter volume 16 page state vl ve harrison it is upon the point as to what constitutes a vacancy for which an appointment may be made the case involves a controversy between the relator joseph L carson and the respondent thomas H harrison concerning the he right to exercise the office of president of the several boards of trustees trusted c of the benevolent institutions of the S state tate the court says saya pursuant to the provisions of the act the respondent was elected president of the boards on the day of february 1883 the legislature failed to elect a suen successor in 1887 as the law required a and d the respondent continued and still continues in the office asserting the light to hold over until a successor 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 day of may 1887 11 the law provided that a person should hold bold until his successor was elected and aad qualified and the court referring preferring to the law saye so much of the above mentioned section as applies to the office in dispute reads read as follows I 1 when during a recess of the general assembly a vacancy shall happen in any office the appointment of which i to vested in the general assembly aaa embly the governor shall fill such vacancy by appointment which shall expire when a successor shall have been elected and qualified it mus must t nevertheless be borne in mind that the power of the governor to make a valid appointment does not arise until there is a vacancy in fact the court says saye the word vacancy as applied to an office has no technical meaning an office is not vacant so long as aa it it is 1 supplied in tho the manner provided provi ded by the constitution or law with an incumbent who is legally qualified to exercise the powers and perform the duties which pertain to it and conversely it is vacant in the eye of the law whenever it is unoccupied by a legally qualified incumbent who has a lawful right to continue therein until the happening of some future event after citing a number of cases the court says bays when an office has been conferred upon one legally eligible and has been accepted no vacancy can be said to exist therein until the term of service and right to hold as fixed by the law expires or until the death resignation or removal of the person elected or appointed the policy of provisions ot of that na ture la is to prevent the happening of vacancies in office except by death resignation removal and the like they rest upon the assumption that the wiser and more prudent course is in case the electoral I 1 ody fails to dig die charge its functions to aut authorine author horike lize the incumbent to bold over until the succeeding eding election rather than that a vacancy should occur to be filled by the appointing power in recognition of the wisdom of this policy the organic law of 0 the state declares as an follows whenever it to is provided 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 be construed to mean that such officer shall hold his office for such term and until his successor shall have been elected and qualified the term of the office is fixed at two years certain with a contingent extension when the contingency happens this ex tension is as much a part of the entire term as any portion of the two years it is certain therefore that all offices to which the above constitutional provision app applies ies are held by the same title or by as high and lawful tenure after the prescribed bed term until the title of a duly elected and qualified successor attaches as before and during such term this right to hold over continues until a qu qualified al lifred successor has been elected by the same electoral body as that to which the incumbent owes his election or which by law is entitled to elect a successor that case lays down the rule explicitly that where an efel afi oer holds for a term and until his suo sue cessor cesso r is elected and qualified that the time that he holds after the term fixed say two years in this case is as much a por portion t ton of his term as the time preceding 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 lowrey in the indiana Indi aua sua page this was a proceeding commenced on the day of january 1886 by an information in the nameon name of th the state eState on the relation of robert A lowrey against dark clark B R parcel to test the right of the latter to hold the office of county commissioner for the third district of pulaski county in that case the incumbent died arid and dark clark B R parcel was thereupon appointed to fill the vacancy it seems seema there was no noques ques tion about the vae vacancy ancy there was an actual vacancy caused by death nota not a case where the person held over the court says I 1 but according to the agreed statement of facts it does not appear that any one was elected at the november election in 1884 bif that was the regular election hence cherice at the expiration of lowrey Is a second term no successor having been elected and qualified he continued rightfully to hold over until his sue cessor was elected and qualified no eie otien having taken place in 1884 to fill the term which was to commence in 1885 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 T h 9 term being thus vacant it came under the provision of section motion B R S 1881 which required red thatah the tha general election in 1886 all existing vacancies in office should be filled unless otherwise provided by law the question is was it otherwise provided by law laithe The statute referred to is as follows A general e election shall be held on the 1 first tuesday after the first monday in november in the year 1882 and biennially thereafter on ou 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 nw law j 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 1882 his bis second term of service must be deemed to have commenced at the regular period in 1882 he could not |