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Show iJMDftfS DEFECTIVE i ' REGDlff IN- lit ,1 CONTESTED CASES 3 Has Lapse of Memory When Asked Who Voted For 1 IJEames For Marshal Memory Returns Very .Quickly However, And She Could 'Tell Exactly Who Voted For Peterson. Judge Howell's Decision Com- t plete Vindication of Contention of Mayor And Republicans. Tho easeof EiraSEnrpeV.VsWNlels; C. jljotorson, which was shelved some tlmu ngo, pending tho return of Ho- coriter Mae Benson from- a- vacation, was. called on Fridnyievcnlng at, 8 ' . ,. t .. . :. ' ' o'clock In Judge, Howell's court. As thu;vecordor was the only WltnesW'tH lio' called ,all, eyes were upon iter, nndyher testimony "was listened to svlth-lnterent. It had been rumored tliafsoiho rovela'tlons might bo forth coming when "tho b.ooks ,wqro open- ei?f and the crowded spectators wore4 not disappointed, for It was thfc recorder's testimony, and admission that'she hatj failed to complyy wl,th the, law In tho matter of making up tho 'records that gav'q tho decision to "N?cley'' Peterson, All tho , conten- tlonstot Peterson ctT al., and of the Ddmocratlc. members of the council wortSTactTit naught, and "Neeley" won ontT slnglo point, the DEFECTIVE JlritJOIlDS OK THE CITY rffccOKD- I'.U.us will be clearly observed by leading the ruling of tho court. St jJ& WIfen court opened large crowd vjfot wiffTjirescnt. The olty recorder was called and took tho witness stand. Her. voice was "soft and low'' ind tho court admonished her' a 'number ot times to speak louder. Sho seemed somewhat reticent, and ati,tino, ro minded ono of Mark Twain's -"Inno; eence Abroad," undi nlsoi exhibited' tre'rhe lapses of. memory, it took nea sraiie time to refrpshhor. memory and lecall the names' "of tliu councllmen who 'voted for Ezra Earnest 'nh'd1 especially es-pecially was her- enunciation .very, much disturbed,' and her 'faclul expression ex-pression was very cloudy when" "sho uttered "thoTtrrrfeS-'or "Qu'ayle7"S(of. ens and Merrill. On the other hand when nsked who voted for ".Neeley" Peterson, her countenance beamed, the clouds rolled away, memory re sponded Instantaneously, and with a smile of satisfaction she , repeated tho namqs VHnyboll, Calne, .Worley and Evans" with all tho grace',, delivery deliv-ery and expression of an experienced actor. Vory evaalvo at times, with ficrjuent desires to "soy to tho court" such things thnt had not beon asked ?!:,.,",;, testimony.. re,Ycaled..tho. .tact I that tho "yeas and nays'1 had -not been entered in the "Journal of -Its (the councils) proceedings'; u'nd was tho only point on' which tho court ruled In favor of tho defendants", as Nearly evidenced ' In ' tho' ruling 'Si tho court which follows: t'THK -OUftT: ,,Tbls cuse"- goutld- men, asjbeen W Wed to "tli'cSiiit Injn tjomowliat VoiillrtY wnyIn tills . vjIho, tmuwhen tho first hearlu'g was had, the stross, which" was laid by colinsel on both ides, and tho proof which wa3f submitted t6 tho court coil- cerned tho question us to whether fir nbl CERTAIN ALLEGED RULES Op THE COUNCIL HAD BEEN COMPLIED WITH IN THE CONFER, NlATION OF THESE PLAINTIFFS TO OFFICE BY THE MAYOR OF "rE CITY, whereas at tho very uhd IP Q f the Inst hearing and aU during I ims hearing the stress Jias'beeil laid upon the question as to whether of not tho MANNER OF RECORDING THE CONFIRMATION OF THE AP-HQINTMENTS AP-HQINTMENTS .COMPLIED- WITH THE STAJUTE. "bo defondanlii In thls ease IkiV-'J egptonded that horo word certain' ntles vhlch jmd baea.jidQpted. iouu Ijni's ago and by n pravlouajcptiiicU Irtithnt whlcK Is now InTpxlgtlinco In I-oganiClty. thosrulef rclaling to a lefcrcrfco&o cujmltree ft all apt Pglntments mado by tho mayor, and slio reference In tfils Instance -.tlWtl!o.cUi.nc.li: i lolifW-P it'r-rules n,nil, lnv.alldatvd ha ncUoiu-yji soms to me, gentiemen, that there Is nQth. Ing whlchfhaSjbeen sholvh In evidence In reUtronl"tov these rules wh(c!i would justify the court in holding thaO'these' appointments were '"Rot properly confirmed and thtrt '"are sevrral-reasons which actuated mtjni arriving, at this decision. In the "fUst place, It scorns to mo thai, whlfd""it is true in a rertuln sense, that the council or various c6uncils of Logan Cay,, although, composed partially' of different louhcTlmcii, should lie 'h'ejd to lif h continuous body, so that-the bifslness of tlio city may not be. In-terpipled, In-terpipled, liut4 thnt still forho ,pur. poho of their lutcrunl organization they, are separate bunjes.i and' that the rules of one council do not continue ".to be the rules .of the succeeding coun. ell, composed even partially of ,.'dff 'ferent members. If seems to me .that even if this were not true, that Inasmuch Inas-much as at ono of- Iho early meetings .of )je c(iuuc( a .motion was njado tint a committee should, be aiipoUited to' Miggqst tin rules which should govern tho council and that untli-tlie rommt,teq, reported tho old ctlfoB should remain In force, that Cijc-n the committee did report, lis It- did prioritoithe action taken upon thebe appontments, the old rules wero ho lonc;lr' In lojiorntlotr although thpfe wj.s no netldn taken upon tRe r?jio'rt of, tho co"mmltteu. It' seems to me. further fur-ther hat Irjismuch as when'theso a-pilntments a-pilntments were before "the council fop confirmation,.?!! the opuncilmen who "were 'present' .aV the' 'meeting finally fi-nally p"art"iclpate"d In the vole "upifn thctr conflfmstlonrtharthey'thereby tacitly waived the. rule which provides pro-vides or Jhe reference to a csmmlt-tee csmmlt-tee awTevJen If' It were utill'ln force that It could be, waived by .unanimous consent.! I.o.t; mo pav also thai If tho ,forogolng.,rca8ons were not sufficient to justify t,ho cqur, .n Jioldlng that ibe council was not, .bound by its old rules, I a,h,quld(be prepaapil,tu hold ,thnt it WOULD MAKE, NO DIFFER-ENCE DIFFER-ENCE EVri'N IP THE'cdUNCIL1 DID VIOL'X'TE ITS b'WN RULES IF THOSE RULES" WERE SIMPLY lRruTES,v7rTrcHrFA'D----BEEr ADOPJ.ED BYTTHE COUNCIL ND WEljE NO.-T- PRESCRIBED BY STATUTE. If "Is lfue that Bomov of the- - eases make a jrjiBtJnq)tan i lA'tweji ulon ''pclHj,l4ayn, been adopted by oidluanco aud niles which. havo not beon so adopted but I Confess I cannot hyecirjT'sqof any irtyi dlplnctln'n.Jjt seems time It loebiVt'mako any dlfforcnco"'hctlier t' rules nro prescribed by ordinance or aro adopted simply as ruleg J; tether even lie.vfcon'stltuto SIMPLJJ A .CODEi.iP.F JpARLIAMEfiTAfiA PROCEDURE FOR THE COUNCIL, AND' THE COUNCIL" IN ACTING MAY WAIVE THEM, MAY AMEND TH EMI 'JM AY- REPEAL THEM," OR MAY EVEN VIOLATE THEM, AND ESTILL THEvUEGALtTYttP..ri ITS ACTION WILL NOT BE VITIATED, VITI-ATED, , ; . - . . It is truo thero nro certain cisci which petrhnpn do not sustain this doctrine, but perhaps those enses may .bo variously, explained.., Fou.Insstancv, lp an Oiegon case, I roool!ectthaUa councimnnhad'voted hlrpBolMulo ofj flco1, andlu"ri6lnitno''hari vIolated-n diIq Qf thv omrcR unO. tho .court Jioltl that ho could not fcako advantage jO hlfown wrong, nutmlthou'gh thereHs "aVofllral-loly 'foplnlon j upon thbJ HubJoQl', I tarn fJrmly convinced tha the legality of the action of the coun- l?ujil,C9MjJ te atlSiWSfrljP pimply because the council failed to follow Its own parliamentary procedure, proced-ure, and I am certainly sustained In this view at least by the supreme ctnirt of Massachusetts. . . 'S.llhallyr would fie, Inclined tMolcIf ,v,l,rt ,l necessary that Inasnjucha8.by Insistence ifpon a rule requiring a re-fcience re-fcience to a committee conceding It to be In force; ' the legislative will which provided that five members may confirm an appointment made by the mayor In a city, of the class of Logan could be thwarted thereby, that the rule must give way to the expression of the legislative will, . . Turning now to the other branch of the ense, It seems to me that the contentions mado by the defendants are- meritorious. Our statute, belnii Section 202, provides thnt the- coun' ell 'shall sit 'with' op?i dopn on'd krep a journal of Its own proceedi'icjs. The yeas and nays sh-!l be taken up'. on the passage of all ordinances and all prepositions to create any liability liabil-ity against the city, and in ,all other cases at the reqdest of any member, which bhall be enteird upon the journal of Its proceeding's," Now M course It has nlready been held liv our supreme couit In tl.o case tt Sta(n. against .Sheets UkU ,1)10 confirmation confir-mation of an appointment to officer when thotf Is 1111 ordinance nlieady I'i pxiiitc'iM'o prescribing tin- Salary bfjythu office I a propon'ti 11 whiih "ryratr-" 11 liability ngnlrrii the city. Is'.tVde that tljat dcclsijjn yyas rn." JEI.d.-b' adiYlded court, and that both ot the judges who concurred In 'the prevailing opinion have now .ceased to be member; of it," arid the only remaining judge Is Judge Mccarty, Mc-carty, who dissented, but of cour;.-ti whnt)ir mnV be tho opinion of this court with sclhtloti to the merits ot thnt derision, until retorsed by tint supleuie court itself It Is binding upon up-on thin court, So that w have hero this sllmitlim, that the mayor ap' points 1 man to office, a salary be'ng attached to It by a previous ordinance and' we have his confirmation coming before the council. NOW OF COURSE BY REASON OF THE RECENT LAW PASSED BY THE LEGISLATURE, LEGISLA-TURE, IT REQUIRES THE1 VOTE OF ONLY FIVE 'MEMBERS FOR CONFIRMATION, AND TO THAT EXTENT THE STATUTE WHICh HAS BEEN QUOTED HAS CHANG-F.D CHANG-F.D AND THC 'STATE OF UTAH AGAINST SHEETS, WHICH HELD TVUT A MAJORITY OF THE COUN-ClL COUN-ClL MUST VOTE- FOR CONFIRMA-Co'ntluued CONFIRMA-Co'ntluued on Pago 8. Recorder's Defective Records Win in Contested Cases Continued from pago 1. TION IN ORDER TO CONSUMMATE IT, IS NO LONGERnDECLARATORY OF OUR LAW, but it nevertheless re. mains true that confirmation by five of the council must still be entered In the journal and that the yeas and nays must be shown In that recorc." Tho public purpose which w it sought by the legislature to be sii served by this statute has been polnY I'd out by counsel for the defendants, that is, to say,, it places the council upon record as to the manner In' which they vote, and thin recording bt, their votes is necessary to the con- ' cummailon of their action .It does not simply go to the manner of pijok Vlng bow they voted', about whli'h, there is no contention In this caiV but It is a requisite! and final step In, the confirmation Itself. .! In the American and Kngllsh l.'iii cyclopedia, 2nd ICditlnn, Volume 20; Juige 1214, appears the following Ihji-gunge: Ihji-gunge: ,,' "A provision of a munlclpnl cliili'j ter reiiulrlng the ayes and nays fot the members i of the govern-i lug body, when voting on1 matters presented, to be-called anlf, recorded, has been In some instances instan-ces held .directory 'merely, lint the", weight of authority seems to be Unit such ruriiilrement Is deslg'ned to iu compllsh an Important public picrj-pose, picrj-pose, ns Imposing upon the member ' of the miinleiiml governing bodies in; sense of responsibility for their ajjj Hon, nnd hence Hint It cannot bo r'p ganled as Immaterial nor Its obseryj nnce dispensed with. , . "Where the nyes and nays are ri., quired to bo taken and entered, tllh, proceeding, to be valid,, .must appear ftom tho record Itself, or a duly ntir .tlorlzrd copy, and '(.'aniuit .be prove)d , by extrinsic evidence." j And to the same effect seems to lie the statement which is made 2S Cyb'. page 3.34: "As a general rule, regular tlons which prescribe tho manner fo which a voto of tho body shall tip, taken Is mandatory, and failuro a .coniply With them Is ratal to any ncn tlbir taked. Thus when a voto Is rp quired ti, b,er by ballot, a viva vodo vote Is Ineffectual. So when It Is nn 'Uulred that-ithe xvottt shal be by yei and nays, which shall bo recordeoj,1 ,any Other ,niodo of , voting on tljri question Is vain and tiitilo; and u rei-bril which rails to .show tho votoi or the members on a measure thu lirescrlbed II. fatally dofectl'vo ,and lji competent to support tho action taken." tf may lie true that for certain purposes tho provisions of this sta tutoAinlght bo dispensed wtty especially espec-ially yhero rt liability has been created cre-ated ngnlnst the city by reason or the performance of certain work for the city, hut It" seems to me that tho purpose of the chnctment of this slqtuto yas such thnt the ,i;ourt ought to be very, loath not to Inforce Its provisions mosb strictly. -This Is a proceeding' In the nature of, a quo wnrrahto' tojlnforije a cor-tnln cor-tnln nian's UUo l,o nn offlep and It Is against another clnlmant. It seems to mc It is not In tho nature or a, collateral col-lateral proceeding, but rather In the nature 6r n direct proceeding, and that thcreroro In such a case, If the statute has not been compiled with, then tho notion of the council Is not operative. It might be suggested that it is somewhat technical to held that the plaintiff's confirmation to office must be held not to be consummated simply because there was a, failure to record the vote In Just the way required by the statute, and yet, as has been pointed out in one case, the name of which I am not able to give you, but It Is one of the cases cited by counsel for the plaintiff or defend-1 ant, this failure to record .the .votei need not cause any Injustice, FOR THE REASON, THAT LT IS WITH- IN THE PROVINCE OF THE COUN- CIL, IF IT DISCOVERS THAT ITS MINUTES HAVE NOT CORRECTLY SHOWN T.HE PROCEEDINGS AND" AS' THE LAW REQUIRES, TO OR DER ITS. MINUTES' AMENDED NUNC PRO TUNC, IN THE SAME MANNER THftT THIS -toCOURT MAy-;AMEND ITS OWNrJfJNUTES. I 'am mistaken In Hjlnklbp that this- c'aso'was a caseSxlieiruy coun- sel. but It Is a case whlcltJv obtained b. reading a little furtW nlong in oho of . thcThqoks that counsel cited Itv Is.jjtho' ense of I.ogansport vs. Crockett, or tho case of Plnoyllle vs. T'iirchtlh.l. wlilcji wil ije,, fgtn(! In the Am. & Kngllsh Kncyy., ofJ Law 2nd, Kdltlon, Volume 20, pago 1214, In thqhoie,1( It seem to me,, then, 'finally,, for tlie' reason that the minutes orJOUK-NAL orJOUK-NAL OF THE COUNCIL IN THIS CASE DO NOT SHOW THAT THE YEAS ANDt NAYS, OF THE' COUN-OILMEN, COUN-OILMEN, AS THEY VOTED UPON THE PROPOSITION TO CONFIRM THESE APPOINTMENTS, WERE RECORDED, THAT THEIR CONFIRMATION CON-FIRMATION VAS' NoVcOMPllET ED AND IS NOT VALID,' AND'FOR THAT REASON THE PLAINTIFFS ARE NOT ENTITLED UNDER THE SHOWING THUS FAR MADE, TO THE OFr'lCES' WHICH THEY S'EEK The ordeV ' , think ' will be made, of dismissal, take 'It that that disposes or all the matters that I have .to dlspbso'of In these eases, unless un-less counsel desire to direct my'nt tehtlo'n tp something else. It may, be understood that the cases will., be dismissed. air. Walters. 1 wjll take an exception. excep-tion. . Ml .1 Judge MuHoneaux. , May the , ,de-fc-uUntitH. have, their ,casLs? i. ThOCourt.' 1 take it' they will be entitled' to' their taxable costs. ' " Thereupon tho court adjourned , . ?o- r ... |