State Ex Rel. Stain v. Christensen

35 P.2d 775, 84 Utah 185, 1934 Utah LEXIS 87

• Court: Utah Supreme Court
• Decided: May 4, 1934
• Docket: No. 5515.
• Status: Published

Opinions

ELIAS HANSEN, Justice.

By this proceeding in quo warranto the parties have invoked the original jurisdiction of this court for the purpose of determining who is the Treasurer of the State of Utah. The facts are not in dispute. A. Edsel Christensen was elected State Treasurer in the general election held in 1928. He took the oath of office and filed a bond as required by law and assumed the duties of that office on the first Monday in January of 1929, and from that time to the present has continued to act as State Treasurer. In the general election of 1932 Charles A. Stain was elected State Treasurer. He took the oath of office on the first Monday in January, 1933, but has failed to give any bond. On December 12, 1933, the Governor appointed Enos Hoge State Treasurer. He took the constitutional oath of office and on January 4, 1934, filed his bond with the proper officers. Charles A. Stain claims that he is, and since the first Monday in January, 1933, has been, the State Treasurer. He further contends that the law with respect to the giving of a bond casts upon the State Board of Supply and Purchase the duty of furnishing his bond, and that if the law be so construed as to cast upon him the necessity of giving a bond before he may lawfully assume the duties of State Treasurer, then such law is unconstitutional because it is an attempt to add qualifications to the office of State Treasurer not authorized by, but contrary to, the provisions of our State Constitution. It is urged on behalf of A. Edsel Christensen that he is entitled to retain the office of State Treasurer until his successor has been elected and has taken the oath as required by the Constitution and has given a bond as required by law ; that the Governor was without legal authority to appoint Enos Hoge to the office of State Treasurer because there was no vacancy in that office.

Enos Hoge contends that Mr. Stain has forfeited his right to the office because of his failure to give a bond within the time provided by law; that the term for which Mr. Christensen was elected expired in January, 1933, leaving a vacancy in that office; that the Governor having appointed him to fill that vacancy and he having taken his oath and filed his bond, he is entitled to that office.

The provisions of our state Constitution which it is claimed have a bearing on the question which divides the parties are:

Article 24, § 16:

“The provisions of this Constitution shall be in force from the day on which the President of the United States shall issue his proc lamation, declaring the State of Utah admitted into the Union; and the terms of all officers elected at the first election under the provisions of this Constitution, shall commence on first Monday, next succeeding the issue of said proclamation. Their terms of office shall expire when their successors are elected and qualified under this Constitution.”

Article 7, §§ 1 and 3;

Section 1. “The Executive Department shall consist of Governor, Secretary of State, State Auditor, State Treasurer, Attorney General, and Superintendent of Public Instruction, each of whom shall hold his office for four years, beginning on the first Monday of January next after his election, except that the terms of office of those elected at the first election shall begin when the State shall be admitted into the Union, and shall end on the first Monday in January, A. D. 1901. The officers of the Executive Department, during their terms of office, shall reside at the seat of government, where they shall keep the public records, books and papers. They shall perform such duties as are prescribed by this Constitution and as may be prescribed by law.”

Section 3: “* * * No person shall be eligible to any of the offices provided for in section one of this article, unless at the time of his election he shall be a qualified elector, and shall have been a resident citizen of the State or Territory for five years next preceding his election. The State Auditor and State Treasurer shall be ineligible to election as their own successors.”

Article 4, § 10:

“All officers made elective or appointive by this Constitution or by the laws made in pursuance thereof, before entering upon the duties of their respective officers, shall take and subscribe the following oath or affirmation: ‘I do solemnly swear (or affirm) that I will support, obey and defend the Constitution of the United States and the Constitution of this State, and that I will discharge the duites of my office with fidelity.’ ”

Article 7, § 10:

“* * * If the office of * * * State Treasurer * * * be vacated by death, resignation or otherwise, it shall be the duty of the Governor to fill the same by appointment, and the appointee shall hold his office until his successor shall be elected and qualified, as may be by law provided.”

Article 24, § 2:

“All laws of the Territory of Utah now in force, not repugnant to this Constitution, shall remain in force until they expire by their own limitations, or are altered or repealed by the Legislature.”

At the time Mr. Stain was elected the law provided:

“The state treasurer shall give to the state a surety company bond in the sum of $350,000.00; the premium of said bond shall be paid by the state.” Laws of Utah 1921, c. 129 p. 362.

“The state treasurer shall give a separate and additional corporate surety bond in such amount as may be fixed by the governor, conditioned upon the faithful performance of his duties as custodian of the state insurance fund. The premium of said bond shall be paid out of the state insurance fund.” Comp. Laws Utah 1917, § 3109, p. 670.

“Whenever state officers, officials of ■ state institutions, or other persons are required to give official bonds to the state, such bonds shall be approved by the state board of examiners, and recorded by the secretary of state in a book to be kept for that purpose. * * *” Comp. Laws Utah 1917, § 4306.

At the time of the adoption of our state Constitution and the admission of Utah into the Union, the law of the territory of Utah provided:

“The Territorial Treasurer shall, before entering upon the duties of his office, * * * give a bond to the Territory of Utah in such sum not exceeding the whole amount of the revenue of the Territory for the year next preceding his election, nor less than one-half thereof; and with such sureties as the auditor of public accounts and the probate judge of Salt Lake county shall determine and approve, conditioned for the faithful performance of the duties of said office * * *” Comp. Laws Utah 1888, vol. 1, c. 3, p. 250, § 9.

The first Legislature to convene after statehood passed a law which required that:

“The State Treasurer must execute an official bond in the sum of three hundred and fifty thousand dollars.” • Laws of Utah 1896, c. 53, § 8, p. 143.

The second special session of the Legislature of 1938 enacted two laws, one of which provided that all public officers who are by law required to give bonds may give personal bonds in lieu of surety bonds. It was further provided that:

“In case of failure of any public officer to have his sureties justify when so required or to furnish additional sureties when required, as herein provided, the hoard or officer charged with the duty of approving the bond of such officer shall declare such office vacant within sixty days after notice personally served upon the officer, and at the expiration of said sixty day period such office shall become vacant unless such sureties justify or additional qualified sureties be furnished within said period.”

That act took effect October 2, 1933, Second Special Sesssion Laws of Utah 1933, c. 13, p. 26. The other act of the Second Special Session contained, among others, the following provisions:

“Whenever any person duly elected or appointed to any office of the state or any of its political subdivisions, fails to qualify for such office within sixty days after the date of beginning of the term of office for which he was elected or appointed, such office shall thereupon become vacant and shall he filled as provided by law. * * * Any elected or appointed official who has failed on the effective date of this act to qualify for the position to which he was elected or appointed, shall be deemed to come within the provisions of this act, and the office of such officer shall become vacant at the end of forty days after the effective date of this act unless legal bond is given before the expiration of such period, and such office shall be filled as provided by law.”

That act also took effect October 2, 1933. Second Special Session Laws of Utah 1933, c. 25, p. 50.

Our state Constitution contains no express provisions relative to the giving of a bond by the treasurer or other state officer, nor does it expressly authorize the lawmaking power of the state to require the giving of a bond by any of such officers^ It is Mr. Stain’s contention that it was not competent for the Legislature to add to the requirements contained in article 7, § 3, and article 4, § 10, of our state Constitution, as a condition precedent to his right to assume the duties and enjoy the emoluments of the office of State Treasurer. In support of such contention he cites numerous authorities and adjudicated cases. Most of the cases relied upon by him will be found collected in the footnotes in 46 C. J. 937, 59 C. J. 117 and 113, and Cooley’s Constitutional Limitations (8th Ed.) vol. 1, pp. 139 to 141. We have carefully examined the cases relied upon by Mr. Stain.. A considerable number of them support the doctrine that a constitutional declaration that certain persons are ineligible to office implies that all other persons are eligible. A different doctrine prevails in some jurisdictions, as will be seen from an examination of the following cases: Darrow v. People ex rel. Norris, 8 Colo. 417, 8 P. 661; State ex rel. Thompson v. McAllister, Mayor, 38 W. Va. 485, 18 S. E. 770, 24 L. R. A. 343; State ex rel. Atty. Gen’l v. Covington et al., 29 Ohio St. 102. None of the cases cited go to the extent of holding that the Legislature may not require the officer whose qualifications are fixed by the Constitution to give a bond as an assurance for the faithful accounting for money received by him in his official capacity, It will be observed that article 7, •§ 3, deals with eligibility of persons for the offices therein named at the time of the election. This court, in the case of State by Barnes, Attorney General, ex rel. Korns v. Shores, 48 Utah 76, 157 P. 225, 226, in distinguishing between the meaning of eligibility and qualification for office, said:

“There is a clear distinction between ‘eligible,’ as used in section 221, and ‘qualification,’ as used in the Laws of 1899. The former means capable of being legally chosen, and relates to- the legal capacity of being appointed, elected, or chosen, as well as holding (3 Words and Phrases and 2 Words and Phrases, Second Series) ; the latter, fitness of the person for the particular pursuit or performance of duties of the office or position to which he is chosen (7 Words and Phrases).”

It was held in that case that a statute which provides that no person shall be eligible to such office (in cities and towns) who is not a qualified elector of the city was not repealed by the later statute which conferred express power on the city council to prescribe and define by ordinance the qualifications and duties of officers and employees.

In the case of State of North Carolina by Attorney General Hargrove ex rel. Lee v. Dunn, 73, N. C. 595, it is said:

“All the difficulty in arriving at the proper solution of this question, grows out of not drawing the distinction between eligibility or qualifications for office; and assurances for the faithful discharge of the duties of the office. * * *

“After prescribing who are eligible to office, the Constitution, in section 4, provides that every one, before entering upon the duties of office, shall take an oath to support the Constitution, and to be faithful in office. But this does not enter into eligibility for office. One must be eligible when elected; the oath is after election. It is simply an assurance which one is to give after election, and before entering into the office that he will be faithful to the government and to his office, which assurance is binding on his conscience. And this is the only assurance required of many officers, such as the Governor, members of the General Assembly, Judges, etc. And that is the only assurance which is required in terms by the Constitution.

“But can it be supposed that every other assurance is prohibited? If so, then no bond can be required; and so the public funds, and all moneys in the hands of officials, are in jeopardy. This proposition is so monstrous that it was admitted for the relator that a bond and surety could be prescribed by the Legislature and demanded by the Board, although none is prescribed by the Constitution. But by what reasoning can it be maintained that a bond may be required? Only upon the ground that a bond is a reasonable and proper assurance for the public safety; a regulation which experience has shown to be necessary; reasonable in itself, and deprives no man of his rights, and is not intended, directly or indirectly, to abridge them. Cooley’s Const. Lim., 1, 602. If that reasoning is sound, as unquestionably it is then any other assurance which can be supported by the same reasoning may be required.”

There is eminent authority and good reason to support the doctrine that when a Constitution prescribes eligibility for an office, its declarations are conclusive of the whole matter whether the language used is affirmative or negative in form. But so far as we are advised that rule has never been extended to preclude the lawmaking power from requiring-the giving of a bond by one elected to an office, upon the theory that such a law is in conflict with constitutional provisions such as are contained in our state Constitution. When a constitutional provision deals with the subject-matter of eligibility to office, much may be and has been said in favor of the view that such provision disposes of the whole matter of eligibility to office. But we can perceive of no sound basis for extending the implication to include matters foreign to the subject-matter of eligibility to office, such as the giving of a bond for the protection of moneys which may come into the possession of an officer after he assumes office. So, likewise, a constiutional provision requiring the taking of an oath is so foreign to the giving of a bond that a requirement that an officer must take an oath of office may not well be said to imply that a bond may not be required.

It is the established doctrine in this and other jurisdictions that the whole lawmaking power is committed to the Legislature except such as is expressly or impliedly withheld by our federal and state Constitutions. Kimball v. Grantsville City et al., 19 Utah 368, 59 P. 1, 45 L. R. A. 628. That it is competent and proper for the Legislature to enact laws for the protection of public money is not open to doubt. Long before Utah was admitted to statehood, an act of the territorial Legislature was passed requiring the giving of a bond by the treasurer of the then territory of Utáh, which law was in effect at the time .of the adoption of our state Constitution, and in amended form has continued in effect until the present time. The Constitution expressly provides that all territorial laws not in conflict with the Constitution should remain in force until altered' or repealed by the state Legislature. Moreover, the language of article 7, § 10, wherein it is provided that certain officers appointed by the Governor shall hold office until their successors shall be elected and qualified, as may be by Ixm provided, lends support to the claim that the Constitution was not intended to preclude the Legislature from requiring the giving of a bond' by officers intrusted with public moneys. It is difficult to believe that those who took part in drafting our state Constitution or the people who voted for its adoption believed that anything therein contained precluded the Legislature from requiring a public officer who is intrusted with the custody of public moneys to give a bond as an assurance for the faithful accounting of such moneys.

By numerous decisions it is the established doctrine in this jurisdiction that an act of the lawmaking power may not be declared unconstitutional unless such act is clearly in conflict with some provision of our state or federal Constitution. The authority of the Legislature to re-quire the State Treasurer to give a bond may be sustained under that provision of article 7, § 1, of our state Constitution, wherein it is provided that the State Treasurer “shall perform such duties as are prescribed by this Constitution and as may be prescribed by law.” The requirement that the State Treasurer shall give a bond may in a sense be said to be a duty imposed upon him. Such is the view expressed in the dissenting opinion of Mr. Justice MOFFAT. To so classify the giving of a bond, however, does not solve the question which is here presented for determination. Assuming for the moment that Mr. Stain became the de jure State Treasurer when he took his oath of office, how stands the case? As soon as he became such de jure officer he was required to perform the duties of that office, one of which was to give a bond as by law required. The power expressly granted by the Constitution to the Legislature to prescribe the duties of State Treasurer carried with it such implied power as was necessary to the effective exercise of the power so expressly granted. If the moneys of the state in the hands of the State Treasurer are to be at all times protected by a bond, it is obviously necessary that the bond be given before the moneys are turned over to an in-coming State Treasurer. But it is urged in the dissenting opinion that the law as it existed when Mr. Stain took his oath of office did not require him to furnish a bond before he assumed the other duties of State Treasurer. That is so, but neither did the law fix any other time when the bond should be furnished. It is one of the cardinal principles applied by courts in the construction of a statutory provision to so construe it as to give effect to the purposes sought to be accomplished by the lawmaking power. It would seem clear that one of the principal purposes sought to be accomplished by the act requiring the State Treasurer to give a bond was to protect the moneys which should come into his hands. Complete protection may not be afforded unless the in-coming State Treasurer furnishes a bond before the state moneys are placed in his custody. Loss to the state may occur the first day or the first week of the term of office as well as at any other time. The statute requiring the State Treasurer to give a bond, being silent as to when such bond should be given, should receive such a construction as to give full effect to the purposes sought to be accomplished by the act. If the act requiring the State Treasurer to give a bond be viewed as prescribing the duties of the State Treasurer, it should be so construed as to require the performance of that duty by the in-coming State Treasurer before and not after he enters upon the performance of the other duties of that office.

While we have been unable to find an adjudicated case which bases the power of the Legislature to require a bond from the State Treasurer upon the doctrine of the police power of the state, still the principle upon which that doctrine is bottomed supports such a law.

It was said by Mr. Justice Holmes, in the case of Noble State Bank v. Haskell, 219 U. S. 104, 31 S. Ct. 186, 188, 55 L. Ed. 112, 32 L. R. A. (N. S.) 1062, Ann. Cas. 1912A, 487, that:

“It may be said in a general way that the police power extends to all the great public needs. * * * It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare.”

It was said by Mr. Justice Wanamaker, in Leonard v. State, 100 Ohio St. 456, 127 N. E. 464, 465, that:

“The dimensions of the government’s police power are identical with the dimensions of the government’s duty to protect and promote the public welfare. The measure of police power must square with the measure of public necessity. The public need is the polestar for the enactment, interpretation, and application of the law. If there appears in the phrasing of the law and the practical operation of the law a reasonable relation to the public need, its comfort, health, safety, and protection, then such act is constitutional, unless some express provision of the Constitution be clearly violated in the operation of the act.

“Moreover the growth of the police power must from time to time conform to the growth of our social, industrial, and commercial life. You cannot put a strait-jacket on justice any more than you can put a straight-jacket on business. Private initiative, enterprise, and public demand are constantly discovering and developing new methods and agencies, honest and dishonest; and the police power must be always available to afford apt and adequate protection to the public.”

The Supreme Court of Wisconsin has said:

“The doctrine that the police power is really a law of necessity forms the key, it would seem, with which to unlock the mysteries, so far as practicable, of what is within and what is without the limits of such power. Not that a police regulation, in form or pretense, to be one in fact must supply some absolute essential to the public welfare, but that the exigency to be met must so concern such welfare, be sufficiently vital thereto, as to suggest some reasonable necessity for a remedy affordable only by a legislative enactment.” State v. Redmon, 134 Wis. 89, 114 N. W. 137, 142, 14 L. R. A. (N. S.) 229, 126 Am. St. Rep. 1003.

We are clearly of the opinion that it was competent for the Legislature to enact the law requiring the State Treasurer to give a bond. Nor is that law susceptible of the construction that it was the duty of the State Board of Supplies and Purchase, and not of Mr; Stain, to secure the required bond.

It is next urged that Mr. Stain may not be deprived of his right to give bond until the expiration of the term for which he was elected. We cannot yield assent to such view. It is now more than a year since the term of office for which he was elected began. So far as appears, his prospects for now securing a bond are no better than they were when he was elected. It will be noted that under the provisions of Second Special Session Laws of Utah 1933, c. 25, Mr. Stain was given forty days after the effective date of the act in which to qualify. Upon his failure to do so, the act provides that he thereby forfeited his right to the office. Mr. Stain was thus given to and including November 11, 1933, in which to furnish his bond. If it was competent for the Legislature to require Mr. Stain to furnish a bond, as we have held it was, so, likewise, it was competent for the Legislature to make provision that in the event he failed to furnish a bond within the specified time he forfeited his right to the office. He frankly concedes that he has been unable to give the required bond, and so far as it is made to appear there is no likelihood that he will be able to give such a bond. The Legislature may well have believed that the administration of public affairs should not be indefinitely held in abeyance nor thrown into confusion by the failure, beyond a reasonable time, of a public officer to qualify for the office to which he has been elected. The act under review was calculated to cure such evil and was within the province of the lawmaking power to enact. The act is not in conflict with any provision of our state Constitution.

It was urged at the oral argument of this cause that the failure of Mr. Stain to secure a bond was due to the intermeddling of others. There is no allegation of any such fact in his petition. ' Therefore, such question is not before us and we are not called upon to discuss the law applicable when such facts are present.

The view is expressed in the dissenting opinion that we may not in this proceeding pass upon the question of whether or not Mr. Stain has forfeited his right to the office of State Treasurer. The issues raised by the pleading in this case are not limited to the question of whether Mr. Stain was or was not entitled to the office of State Treasurer at the time he made demand for the possession thereof. Indeed, the record is silent as to when such demand was made. So far as appears it may have been made immediately after he took his oath of office or immediately before the bringing of this proceeding. The relief sought by Mr. Stain is to be declared entitled to the office of State Treasurer. A proper determination of his present right or his right as of the time he filed his petition may not be had by a determination of whether he did or did not have such a right at some time in the past. One who seeks the aid of a court to be inducted into an office must show a present right. If the showing be that one has been entitled to the possession of an office but that such right has ceased to exist, a court may not properly lend its aid to place such a person in office. In 51 C. J., it is said, at page 315:

“Quo warranto, or a proceeding in the nature thereof, is a proper and appropriate remedy to test the right or title to an office * * *”

At page 316:

“In a proceeding wherein the relator seeks possession of the office, he may recover only upon the strength of his own title, and not upon any infirmity or weakness in the title of defendant or respondent.”

And at page 319:

“Failure to qualify by filing the bond and taking the oath required is ground for ouster by quo warranto, but the rule is otherwise as to a failure to take the oath, or do some other act, within the required time, where it is done before the institution of the proceeding.”

If the failure of an incumbent in office to give bond is grounds for an ouster by quo warranto, it necessarily follows that a proceeding in quo warranto may not be successfully maintained to place one in office who has forfeited his right thereto by failure to give a bond. Cases are cited in the dissenting opinion where it has been held that a person who has performed the duties of an office without having given the required bond is entitled to the emoluments thereof; that the official acts of one who is performing the duties of office without having furnished bond are valid; and that one who has assumed the duties of office by giving a defective bond or no bond should be given a reasonable time after notice to file the proper bond. Such cases do not aid Mr. Stain. He is not, and has not been, in possession of the office of State Treasurer. He has failed to give a bond within the time fixed by Second Special Session Laws of Utah 1938, c. 25.

It was urged at the oral argument that during the past certain state officers have served without a bond although there was at the time a statute requiring the giving of a bond. The record before us is silent as to the facts so claimed. We need not pause to determine whether we may take judicial notice of what is claimed in such respect because it is clear from the language of Second Special Session Laws of Utah 1933, c. 25, that the Legislature intended to prevent the State Treasurer and other public officers from hereafter serving as public officers without the required bond. By his delay in giving his official bond beyond the time fixed by the Legislature, Mr. Stain has forfeited his right to the office of State Treasurer.

It remains to be determined which of the other two parties to this controversy is the de jure State Treasurer. The solution of that question depends upon whether a vacancy may be said to have existed in the office of State Treasurer at the time the Governor appointed Mr. Hoge to that office. Obviously if no vacancy existed in the office of State Treasurer, no one could lawfully be appointed to fill such office. It will be observed that under the provisions of Second Special Session Laws of Utah 1933, c. 25, heretofore quoted, an office becomes vacant and shall be filled as provided by law whenever any duly elected or appointed person fails to qualify for such office within sixty days after the beginning of the term of office for which he was elected or appointed. It is urged on behalf of Mr. Christensen that such law is unconstiu- tional because, by the act, the Legislature has attempted to exercise powers which are essentially judicial, and also that the Legislature has by the act attempted to reduce the term of office of State Treasurer contrary to the provisions of our state Constitution. A similar attack upon the act is urged by Mr. Stain, who also contends that the act is unconstitutional because it is class legislation and offends against article 1, § 24, and also offends against article 6, ■§ 23, of our state Constiution, in that the act contains more than one subject. But little need be said with respect to the last two objections. This court, in a number of cases, has had occasion to discuss the rule applicable in determining whether a given legisative enactment is or is not class legislation. One of the last cases decided by this court involving that question is that of State v. Packer Corporation, 77 Utah 500, 297 P. 1013. Tested by the rule there announced, the act under review is not unconstitutional. Nor may it be said that the act is vulnerable to the claim that it contains more than one subject. Baker v. Department of Registration, 78 Utah 424, 3 P. (2d) 1082.

A more difficult question is presented with respect to the other objections urged against the validity of the act under review. It is said in 46 C. J. 973 that:

“The legislature has no power to create a vacancy in order to evade the constitution or to defeat the will of the people, and, where there is in fact no vacancy, cannot create a vacancy by declaratory enactment. The reasons for which an office will become vacant, however, may in the absence of constitutional inhibition be fixed by the legislature. Thus it may, unless so inhibited, add new causes producing vacancy in office to those already provided in the constitution. A statute declaring a vacancy in an office on the failure of one duly elected thereto to qualify, when applied to an officer not elected to succeed himself, is unconstitutional as contrary to a constitutional provision that the term shall extend until the successor shall be elected and shall qualify.”

To the same effect is Mecham on Public Officers, ■§ 387, p. 254. If the constitutional provision, article 7, § 1, under which Mr. Christensen was elected to the office of State Treasurer, contained a provision that he should hold office until his successor was elected and qualified, then and in such case it would seem that the Legislature was without authority to declare a vacancy, because it is the established doctrine in this jurisdiction that when an officer holds over under an express statutory provision until his successor is elected or appointed and qualified.

“The right to hold over * * * is as much a part of his term of office as the regular period prescribed by statute,” and that “a failure to elect at a period fixed by the statute creates no vacancy in the office, but imposes a right and a duty upon the incumbent to continue in office until his successor is legally elected and qualified. * * * ” People v. Hardy, 8 Utah 68, 29 P. 1118, 1119; State v. Elliott, 13 Utah 471, 45 P. 346.

Other cases where the same doctrine prevails will be found collected in 50 L. R. A. (N. S.) at page 368, and in 74 A. L. R. 486, 487. A contrary rule obtains in other jurisdictions. 74 A. L. R. 494. Neither our Constitution nor statutory law expressly authorizes Mr. Christensen to hold over until his successor is elected and qualified. Our state Constitution contains a provision that he shall be ineligible to election as his own successor. In the absence of any constitutional or statutory provision for an incumbent in office holding over beyond his fixed term (or until his successor shall be chosen and shall qualify), the greater weight of judicial authority, and what we conceive to be based on sound principles of public policy, permits such officer to hold over until his successor has been chosen and has qualified. In some of the cases so holding, exceptions have been made with respect to the members of the Legislature and possibly judicial officers. Mecham on Public Officers, § 397, p. 257; Throop on Public Officers, §§ 170 and 325, pp. 182 and 326; 22 R. C. L. 554; 50 L. R. A. (N. S.) 365. The reason for the rule is obvious. It is thus expressed in the case of Robb v. Carter, 65 Md. 321, 4 A. 282, 283:

“The office being a trust created for the public good, it follows that a cessation of the benefits derived from it ought not to be sanctioned because of a failure to make an appointment by those whose duty it is to appoint. No such, failure should he permitted to cause a temporary extinction of the trust * * * for it must be borne in mind that an official is frequently the custodian of important books, papers, and other property, the care of which ought not to be abandoned, and which he cannot properly surrender to any one not legally authorized to assume control.”

The important duties and responsibilities of State Treasurer are such as to require constant attention and that by some one who is legally authorized to perform such duties and assume such responsibilities. We are clearly of the opinion that it was the right- and duty of Mr. Christensen to continue to perform the duties of State Treasurer until some one was legally authorized to assume and perform the duties of that office. Moreover, in the light of the fact that both Mr. Stain and Mr. Hoge are claiming the right to the office, Mr. Christensen was justified in refusing to turn the office over to either of them until it should be determined by a court of competent jurisdiction who is entitled to that office. It, however, by no means follows that Mr. Christensen is entitled to continue to hold the office of State Treasurer against the claim of Mr. Hoge. The rule which makes it the right and duty of a public officer to hold over after his term of office has-expired in those cases where there is no constitutional or statutory provision for holding over is founded upon public necessity. When the public necessity ceases the rule likewise has no application. There is a vast difference between a constitutional or statutory provision which expressly provides that an incumbent shall hold over his term until his successor is elected and qualified, and a Constitution or statute which is silent upon the question of holding over. The former is the express will of the lawmaking power. The latter a judicial construction limited generally to those cases where public necessity requires such a construction. Moreover, it is clear that the purpose sought to be accomplished by the provisions of the Constitution making the State Treasurer ineligible to election to succeed himself was to limit the term of the State Treasurer whether he holds by election or appointment. It is reasonable to assume that the framers of the Constitution were fearful that if, perchance, some irregularity should occur in the handling of state money by the treasurer during his term of office, there was danger that such irregularity might not be detected and might continue if he was permitted to continue in office for a longer period of time than one term. Such being the apparent purpose of the constitutional provision, it was competent for the lawmaking power to enact such laws as were calculated to give it effect. The danger which the framers of the Constitution apparently sought to avoid by making the State Treasurer ineligible to succeed himself would, in a measure at least, be nullified if the treasurer were permitted to indefinitely continue in office by reason of his elected successor’s failure to qualify. The act of 1933 precludes the occurrence of such danger. A law calculated to give effect to the Constitution and not in conflict with its express provisions may not be said to be unconstitutional. Nor may it be said that by the act under review the Legislature attempted to exercise judicial functions. The act does not declare that a vacancy does or does not in fact exist in the office of State Treasurer. On the contrary, the act merely provides that when certain facts therein mentioned are found to exist, such facts create a vacancy. While the lawmaking power may not by declaratory enactment create a vacancy, it may within constitutional limitations add new causes which produce a vacancy. In the light of the constitutional provision making the State Treasurer ineligible to succeed himself and the clear implication to de drawn therefrom that he should not hold office for more than one term except in case of necessity, we are of the opinion that it was competent for the Legislature to enact chapters 13 and 25, Second Special Session Laws of Utah 1933. In the main, the following cases support the view that the Governor was authorized to appoint Mr. Hoge to the office of State Treasurer: State v. Cocke, 54 Tex. 482; State of Connecticut v. Clark, 87 Conn. 537, 89 A. 172, 52 L. R. A. (N. S.) 912; State v. McLure, 84 N. C. 153; Gosman v. State, 106 Ind. 203, 6 N. E. 349; Com. ex rel. Todd v. Sheatz, 228 Pa. 301, 77 A. 547, 50 L. R. A. (N. S.) 374, 21 Ann. Cas. 54; Etter v. McAfee, 229 Pa. 315, 78 A. 275; State ex rel. Kenner v. Spears (Tenn. Ch. App.) 53 S. W. 247; Hood v. Miller, 144 Okl. 288, 291 P. 504. The distinction between an officer holding over because of a provision that he shall hold until his successor is elected and qualified, and an officer continuing to perform the duties of an office because no one is authorized to perform such duties, is pointed out in the case of Peterson v. Benson, 38 Utah 286, 112 P. 801, 32 L. R. A. (N. S.) 949, Ann. Cas. 1913B, 640.

We are thus of the opinion, and so hold, that Mr. Christensen was the de facto State Treasurer until the appointment and qualification of Mr. Hoge, and that upon the appointment and qualification of Mr. Hoge, he became the de jure State Treasurer and as such is entitled to the office. In the light of the issues raised by the pleadings and the fact that the interests of the state and its funds are involved in this controversy, we are of the opinion that each party should pay his own costs. Such is the order.