is not a necessary party in the mandamus proceedings.

official oath and bond is not one of which defend4. The objection that plaintiff has not filed his ant can avail himself; such oath and bond having been duly presented to him as auditor, and he having refused to receive or file them, as required by law.

5. A disbursing officer has no right to assume that money appropriated by the legislature in payment of the salary attached to a named office is payable to any other than the officer de jure, and his disregard of this rule is at his own risk.

6. One cannot be a de facto officer when he is constantly in hiding, has no place of business, and his friends in secret. cannot be communicated with except by means of

7. An officer de jure is entitled to his salary, notwithstanding the refusal of other officers in his department to have the communication with him necessary to a full discharge of his duties. 8. Under organic act Utah, § 7, authorizing the legislature to provide for the election of "all town.

legal wife, and therefore not exempt from testifying. When all the facts had been adduced before them, then, if there was still a claim to the exemption, it was a question for the court to decide whether, in view of all the facts, she was the legal wife of the accused. If the question asked had not been connected with the exemption which the petitioner claimed, a different case could have been presented. The grand jury may not override the statute allowing the exemption, but they are authorized to ascertain how much weight and substance there was to be given to her declaration that she was the legal wife. The surrounding circumstances, which go to show her legal marriage, were proper and material. The jury was not to be estopped from the further examination by the assertion that she was legally married. It was incum-ship, district, and county officers not herein otherbent on the petitioner to show that she was, wise provided for," and providing for the appointment of all other officers by the governor, with under the law of congress, the first wife of the the advice and consent of the legislative council, accused. And the question proposed was the territorial superintendent of schools was re sufficient to bring out the priority of her mar-quired to be appointed by the governor, and not elected. riage. Every question which tended to establish her right to an exemption was proper. The case is in some respects similar to the disqualification of a clergyman from disclosing any confession made to him in his professional capacity. This exemption is based on the fact that he is a clergyman or priest. And that fact must first be established before he can be allowed or required to testify. His answer that he is a clergyman is not conclusive on the jury. They may interrogate his claim, and by a searching examination test it. The power of a grand jury is co-extensive with, and limited by, the criminal jurisdiction of the court to which it is an appendage. It clearly appears that the district court had jurisdiction, and that the proceedings are regular, and valid upon their face. The writ must be dismissed, and the prisoner remanded to the custody of the marshal, there to remain until she shall show herself willing to purge herself of the contempt for which she stands committed.

(6 Utah, 86)

WILLIAMS v. CLAYTON, Auditor. (Supreme Court of Utah. March 8, 1889.) QUO WARRANTO-MANDAMUS-OFFICERS DE JURE

AND DE FACTO.

9. A territorial act does not have to be disapproved by congress to render it unconstitutional. 10. A repeal of a territorial act by congress is not necessarily a recognition of its former va lidity.

Appeal from district court, Third district. Mandamus by P. L. Williams against Nephi W. Clayton, auditor, etc., to compel him to issue a warrant in payment of plaintiff's salary as superintendent of schools. Defendant appeals.

J. G. Sutherland, for appellant. W. Van Cott and P. L. Williams, for respondent.

BOREMAN, J. On the 13th day of March, 1886, the plaintiff, P. L. Williams, was appointed and commissioned superintendent of district schools for Utah territory by the governor of the territory. He claimed to be such superintendent until the 3d day of April, 1887, when the office was abolished by an act of congress, and by that act the office of commissioner of schools was created, to be filled by appointment of the supreme court of the territory. The plaintiff was by the supreme court appointed to the office of commissioner of schools on the 2d day of April, 1887. The legislature in March, 1888, made an appropriation of the sum of $1,500 for Salary of "the territorial superintendent and commissioner of schools" for the years 1886 and 1887. Plaintiff made demand upon the defendant for a warrant upon the treasurer for the $1,500 thus appropriated. The defendant drew his warrant for $750, for the year 1887, but refused to draw a warrant in favor of the plaintiff for the year 1886, alleging that he had given a warrant for $750

1. While it is true that quo warranto is the proper proceeding to try the title to an office, and that it cannot be tried in mandamus, such trial of the title means the right to possession of the office, when such possession is held by another, whom the purpose of the action is to oust. When there is no such occupant, quo warranto cannot be resorted to; and it is no objection to mandamus to compel the auditor to issue a warrant for plaintiff's salary as superintendent of schools that such to L. John Nuttall, and that Nuttall was salary has already been paid to a third person, now out of office, who claimed the same as superintendent de facto, and that hence the right to the

office is involved.

2. The plain, adequate, and speedy remedy by an ordinary action, which will defeat the right to mandamus, must be a remedy against the defendant in mandamus, not against third persons.

3. The alleged de facto superintendent, to whom the salary was paid, and who is now out of office,

acting superintendent for that year, under an election said to have taken place in 1884. The plaintiff then applied to the district court for a mandamus to compel the defendant to issue his warrant upon the treasurer for said $750 claimed by plaintiff. Judgment was given for the plaintiff, and thereupon the defendant appealed to this court.

from Nuttall. He may have been insolvent, but, if solvent, it was very plain that he could not have been reached. He was in concealment, and could not be found, after diligent search by plaintiff. Yet if he were solvent, and could be found, an action against

speedy remedy. Such a remedy, in contemplation of the statute, must be against the same party. It does not mean that a man must exhaust every source from which it might be supposed he could collect the money. It simply means that he must have exhausted every plain, speedy, and adequate remedy to collect it through or from the same party. It does not require him, before resorting to mandamus, to sue everybody else that might be liable for the money. The proceeding against the defendant was to compel the issuing of the warrant to the plaintiff. An action against Nuttall would not accomplish this object. The warrant could only be issued by the auditor, and mandamus was the only means left to plaintiff to secure this action, and it was consequently proper. People v. Smyth, 28 Cal. 21.

The defendant contends that the title to the office is involved in this action, and that consequently the plaintiff has mistaken his remedy, and should have first proceeded by action in the nature of quo warranto to try the title to the office. It is no doubt true that, as a general proposition, the proceed-him would not have been an adequate or a ing by quo warranto is the proper one in which to try the title to an office, and that it cannot be litigated in mandamus. But such trial of the title, when the rule requires resort to quo warranto, means the right to the possession of the office when such possession is held by another, and the purpose of the action is to oust the occupant. It is not to be resorted to when there is no occupant. The authorities cited by counsel bear out this idea. If the object of the present action were to try the title to the office of superintendent, and had been brought by one out of possession against one in possession, proceedings in the nature of quo warranto would be proper and necessary; but the title to the of fice, so far as it can be litigated in quo warranto, is a question that could not possibly arise in this controversy. Nuttall is not in possession of the office, and was not when the action was brought. He could not, therefore, be ousted, as he was already out of the oflice, and the object of quo warranto proceeding had been accomplished, the judgment in such proceeding being one of ouster. If there be no intruder in possession of the office when the action is brought, there could be no judgment of onster. A proceeding, therefore, in the nature of a quo warranto would not have been necessary or proper. Nichols v. McLean, 101 N. Y. 536, 537, 5 N. E. Rep. 347; State v. Jacobs, 17 Ohio, 143; Com. v. Athearn, 3 Mass. 285; Teal v. Sweeting, 2 Johns. 183. Nuttall was not only out of the office, but had been out of it over a year, when this suit was brought, and in fact the office itself had been abolished.

It is claimed that Nuttall should be a party to the proceeding before any judgment could be entered against the auditor. If Nuttall were in office as a de facto officer at the time the suit was instituted, he might have had an interest in the salary, and had the right to claim it adversely to the plaintiff. But such was not the fact. He was out of office, and could, as against the de jure officer, have no right to the money There was therefore no necessity for making him a party.

The cases to which our attention has been called were where the de facto officer was in the possession of the office. As there was no authority for issuing the warrant to Nuttall, payment to Nuttall could be no defense. The appropriation claimed by the plaintiff was made when Nuttall, as stated, was not in the office, and no one was holding it. The It being clear that the title to the office of office had been abolished. In the appropriasuperintendent could not be tried by a pro- tion no reference was made to a de facto ceeding in the nature of quo warranto after officer, and there was nothing in the act to the oflice had been vacated by the alleged de show that the legislature intended to make facto oflicer, Nuttall, and after the office it- the appropriation for the benefit of Nuttall, self had been abolished, there could be no or of any one else than the legal claimant. legal objection to passing upon such title in The description fits no one except the de jure some other action in which it might arise. officer. The defendant had no authority to It arises incidentally in this case. It is not assume that the legislature intended that the direct object of the action, but is first which it did not state. A disbursing officer brought into the case by the answer of the has no right to assume that the money was defendant, which denies the right of plain-payable to any one other than the legal offitiff's claim to have been the officer. The cer, and his disregard of this rule is at his proceeding is to compel the issuance of the own risk. The defendant had knowledge of warrant prayed for, and, to secure this, resort the plaintiff's appointment, and that he had is had to mandamus. That is a proper pro- been commissioned by the governor, and it ceeding, if there be no other plain, speedy, was his duty to have recognized him as such and adequate remedy. It is claimed by the officer. The objection that the plaintiff had defendant that such adequate remedy existed not filed his oath and bond is not one that through an action against Nuttall, to whom the defendant can avail himself of, for it was a warrant had been issued for said $750 now he, and not the plaintiff, that was to blame sought by the plaintiff. So far as the recov- for such failure. The oath and bond were ery of the money was concerned, there is no presented to the defendant as auditor, and certainty that it could have been recovered he refused to receive or file the same, although

the law required him to file them. The plain- | Comp. Laws 1888, p. 41. Section 7 of the tiff exhausted his power when he offered organic act authorizes the legislature to prothem for filing. He had done his duty, and the auditor cannot now plead his own failure of duty to defeat the plaintiff's claim.

vide for the election of "all township, district, and county officers, not herein otherwise provided for." But the same section proBut we do not think that Nuttall was a vides for the appointment of all other officers de facto officer during the year 1886. A man by the governor “with the advice and conwho holds a public office cannot discharge sent of the legislative council." The plainthe duties of such office when he is in hiding. tiff bore the commission of the governor. He cannot conceal himself from the public, That was prima facie evidence of the due and yet claim to be a public officer. Nuttali appointment to the office to which the govwas so concealing himself, presumably to ernor was authorized to make appointment. escape from some criminal charge. He had It gave the plaintiff title to the office. It was no place of business, his whereabouts were therefore immaterial whether Nuttall had unknown, and he could not be found after been elected to the office or not. We are undiligent search, and could not be communi- able to see that a repeal or suspension of a cated with even by letter addressed to him law by congress could be a recognition of its through the post-office. Whatever communi- former validity. It was evidently seen that, cation he had with his friends was in secret. in spite of the decisions by the courts, the The defendant himself did not know where legislature persisted in their attempts to fill he could be found, and had seen him but such offices in some other way, and, so far at once in the whole year. The defendant's least as the office of school superintendent communication with Nuttall was through a was concerned, congress was determined to third party. The officer de jure discharged put the matter beyond all question by repealall the duties of his office so far as was with ning the act itself. There was no attempt to his powers. He cannot be held responsible pass upon the constitutionality of the legisfor school officers refusing to communicate lative act, and certainly nothing to recognize with him, when he had done all he could to its former validity. The judgment of the have such communication. His right to his district court is affirmed. pay does not depend upon the action of third parties. He did all that the law required of him, and in doing that he showed himself entitled to the pay, and no payment to another party, who is in hiding, and concealed from the public, can defeat the rightful claimant.

HENDERSON, J., concurs.

JUDD, J. I concur in the judgment in this case.

PEOPLE v. Swazey.

(6 Utah, 93)

CATTLE BRANDS-FELONIOUS MARKING.

1. Where, on trial for knowingly marking the sheep of another, under the statute of Utah of 1886, the evidence entirely fails to identify the sheep marked by defendant with his own brand as being the same sheep lost, several months before, by a third person, and fails to contradict defendant's explanation and proof as to having bought them in good faith, a conviction cannot be

sustained.

2. The proof of identity in such cases must be by evidence the most direct and positive of which the case is susceptible.

Appeal from district court, First district. S. R. Thurman and Geo. Sutherland, for appellant. David Evans, Asst. U.S. Atty., for respondent.

It is urged that Nuttall was elected to the (Supreme Court of Utah. Jan. Term, 1889.) office of superintendent in 1884, and that no other person had been elected since that time, and consequently that Nuttall held over. The question of the validity of Nuttall's election here arises. The same question, but in regard to other officers, has been before this court on former occasions, and it has been held that all such offices should be filled by appointment of the governor, and in no other way. Duncan v. McAllister, 1 Utah, 81; People v. Clayton, 11 Pac. Rep. 206. A like decision was made in Idaho. Taylor v. Stevenson, 9 Pac. Rep. 642. Long usage is not a valid basis upon which to rest the validity of the election law under which Nuttall was elected. The case of Duncan v. McAllister, supra, was decided in 1873, and in the face of that decision the law under which Nuttall BOREMAN, J. The defendant was indicted was said to have been elected was passed in for knowingly marking the sheep of an1880. Nor does the fact that the enactment other, it being alleged in the indictment that was never disapproved by the congress weigh on or about the 1st day of February, 1887, in favor of its validity. An unconstitutional he "did knowingly, intentionally, willfully, law does not have to be disapproved by con- unlawfully, and feloniously mark certain gress to render it invalid. The organic act sheep, to-wit, about seventy-eight head of and the laws of congress stand as the consti- sheep, by then and there marking and cuttution of the territory. Bank v. County of ting an under upper slope on each ear of Yankton, 101 U. S. 129. The legislative said sheep, and by recutting an under slope power of the territory shall extend to all in each ear of said sheep, the said sheep be"rightful subjects of legislation," but such ing then and there the property of one Washlegislation must be "consistent with the con- burn Chipman, with the intent thereby to stitution of the United States, and the pro-cheat and defraud the said Chipman out of visions of" the organic act. Organic act, § 6, his property in said sheep." The defendant

was found guilty by the jury, and, a motion for a new trial being overruled, he was sentenced to the penitentiary. He has appealed from both the judgment and the order overruling the motion for a new trial. The indictment was based upon a peculiar statute of this territory, passed in 1886, and which reads as follows: "Any person who shall knowingly brand or misbrand, mark or mismark, any neat cattle, horse, sheep, goat, ass, or mule not his own, or who shall intentionally brand over a previous brand, or in any manner deface or obliterate a previous brand, or shall cut out or obliterate a previous mark on any neat cattle, horse, sheep, goat, ass, or mule not his own, shall be deemed guilty of a felony." The appeal of the defendant is based upon two grounds First, that the evidence was insufficient to warrant a verdict of guilty; and, second, that there was an error in the charge.

that it was attempted to identify them as belonging to Chipman. The mark used by Chipman was "an under slope in each ear, and an upper bit in the right ear." The mark of the defendant was somewhat similar. It was an under slope in each ear, and an upper slope in each ear, or, rather, two upper and two under slopes in each ear. The constable testified that all of the defendant's sheep, so far as he noticed, had the double-slope mark. Various witnesses testified that the defendant's herd were all marked with a mark claimed and used by the defendant, although some of the sheep were also marked in other ways. The evidence shows that defendant had not marked his sheep with any intention to obliterate other marks, but simply to place his own mark upon them. In doing this some old marks were, as a necessity, partially obliterated. The Chipman sheep all had an "upper bit in the right ear," but MolyAs to the first ground, the general rule is neux's mark was an "upper bit in the right that a verdict will not be set aside for this ear and an under bit in the left ear." And reason if the evidence substantially supports Molyneux testified to having sold to the deit. There must be an absence of evidence fendant 110 head of sheep. And Ole Oleson, against the defendant or a decided preponder- from whom the defendant purchased 36 head, ance in his favor. People v. Clauson, 2 marked his sheep with an "upper bit" in the Utah, 502; People v. Biddlecome, 3 Utah, right ear, his mark being "an upper bit in 208, 2 Pac. Rep. 194: U S. v. Harris, 19 each ear, a hole in the right, and a half unPac. Rep. 197. The verdict must be plainly der crop out of left." Of the six head first wrong, and if it be manifestly against the taken, three had holes in the ear, and one weight of the evidence, it is the duty of the other was clearly identified as having becourt to set it aside. The evidence in this longed to Brough, and by him sold to the decase shows that Washburn Chipman had two fendant. Yet these four were claimed and herds of sheep on the range, in Emery coun- sworn to as the property of Chipman, when ty, in this territory, numbering together it is conclusively shown by the evidence that some 4,200 or 4,300 head. The defendant such could not have been the fact. The poslived in the same county, and was engaged session, therefore, of the Chipman mark was in ranching, and had 50 or 60 head of horses, not a certain proof that the sheep belonged to about 25 head of cattle, and about 268 sheep. Chipman. The remaining 72 head might Other men had herds of sheep on the range have come from Molyneux and Oleson, and in the same vicinity and county. In No- they might reasonably have been adjudged to vember, 1886, Chipman's herdsmen missed have so come if the "upper bit in the right about 140 sheep from Chipman's herds. It ear" was to be taken as a means of identifidoes not appear that Chipman was there, or cation. But some of the sheep taken from knew anything about it, nor was he a wit- the defendant, and which he is charged with ness in the case. It was not an uncommon having wrongfully marked, were not identithing for the various herds of sheep in that fied as having the "upper bit" in the ear. vicinity, as elsewhere, to get mixed to some The witness simply judged, as he said, that extent. A few of the Chipman sheep were it had been there, and had been cut out, befound in other herds, but much the largest cause the "old slope was there." From all number (some 78 head) were claimed to have the evidence it is manifest that the presence been found in the herd of the defendant, and of the "upper bit in the right ear" was not a it was for marking these 78 that he was in- clear means of identification, nor one at all dicted. The ownership of these sheep by satisfactory. It might show a possible idenChipman was stoutly denied by the defend- tity, but not one of reasonable certainty. ant, who claimed to own them, and to have The only other ear-mark by which it was bought them of various persons. They were sought to show that these sheep were the taken from him on writs of replevin, first 6 property of Chipman was that Chipman's head and then 72 head. On the indictment sheep were all marked with an "under slope for marking these 78 sheep the burden was in each ear." But that was part of the deupon the prosecution to prove the title to fendant's mark, and it was upon all of the these sheep to be in Chipman. Nobody saw defendant's sheep,-the whole 268 head. them, or any of them, taken from Chipman's There was nothing to show that the defendherds, nor taken from their immediate vicin- ant had no right to adopt and use the mark ity; nor were they seen to stray from such that he did use, nor was there anything to herds. The only possible means of showing show that Chipman's mark was more sacred them to be the property of Chipman was by than defendant's. One was as worthy of the ear-marks, and this was the only way recognition as the other. And the defendant v.21p.no.5-26

testified that he did not know the Chipman | Rep. 394; State v. Hodge, 50 N. H. 510; 3 brand or mark when the sheep were taken Greenl. Ev. (14th Ed.) § 31; State v. Hale, from him. But was the evidence in regard 7 Pac. Rep. 523; Ingalls v. State, 48 Wis. to the under slope of sufficient clearness 647, 4 N. W. Rep. 785. And the rule of prewhereby to identify the sheep with reason-sumption is sometimes fallacious and danable certainty as the property of Chipman? gerous as a criterion of guilt. Wills, Circ. What was there in the "under slope" to show Ev. p. 71, side p. 54. The offense with which that they were the property of Chipman any the defendant is charged is in the nature of more than of the defendant? The sheep of larceny, and should in this respect be gov both had the "under slope. "Some of the ev-erned by the same principles. But it may idence for the prosecution was to the effect be said that the marking itself was, in addithat the upper slope on the ears of the 78 tion to the possession, a suspicious circumhead was fresh, and the "under slope" was stance. Yet the suspicious character of this old, but other evidence for the prosecution fact is entirely removed when we see that showed that there was no apparent differ- the evidence shows that there was apparently ence as to age between the upper and the and in fact no effort or intention to obliterunder slope; and some of the evidence was to ate any old marks that were upon the sheep, the effect that the under slope had, as the but the whole effort was to simply put the witness thought, been scraped, and on some defendant's mark upon the sheep, without of the sheep only a part of the old slope re- regard to whether it interfered with any mained. The constable who seized the sheep existing marks or not. The evidence shows thought there was a remnant of the old "up- that this was the custom of the country with per bit" and a remnant of the old "under regard to small bunches of sheep. The people slope" perceptible on each of the sheep tak- did not seem to rely upon the ear-marks on en, and that was, as he thought, enough to sheep as certain means of showing title. identify them as Chipman's property; and There was no evidence that any of these hence he took them on the civil process as marks were recorded. Each person used belonging to Chipman. As to the "upper such mark as he chose. And there is nothbit," we have already seen that that could not ing to show that the defendant knew the safely be relied upon as a means of identify- Chipman mark. In fact, he testifies, as aling the property as belonging to Chipman. ready stated, that he did not know it when The only means, therefore, left for identify- he purchased the sheep. It is a common ing the sheep as Chipman's was the "under slope," or a remnant of it, and that could only be considered as conclusive by a rejection of the testimony of witnesses, both of the prosecution and the defense, who testified as to the mark used and claimed by the defendant, and with which all of his sheep were marked. That would seem to be a frail thread to overcome the rule that the defendant is presumed to be innocent until proved guilty. The proof of identity was not direct and positive, but the rule is that the proof must be made by testimony that it is the most direct and positive of which the case is susceptible. Com. v. Kinison, 4 Mass. 646; Garcia v. State, 26 Tex. 209; People v. Eckert, 19 Cal. 604.

If it be assumed, however, that the sheep were the property of Chipman, there was no evidence that the defendant came by them wrongfully, except that they were found in his possession. If the property had been found in the defendant's possession immediately after the loss, such possession might have been a circumstance to be taken into consideration by the jury, with other circumstances, in arriving at a conclusion as to the guilt or innocence of the defendant. But of itself it was not sufficient. It seems now to be an established doctrine, especially in this western country, that in larceny the recent possession of stolen property is not of itself sufficient to warrant a conviction. People v. Ah Ki, 20 Cal. 178; People v. Gassaway, 23 Cal. 51; Sahlinger v. People, 102 Ill. 241; State v. Raymond, 46 Conn. 345; People v. Noregea, 48 Cal. 123; People v. Fagin, 6 Pac.

practice all through this mountain country to have herdsmen constantly with sheep, and we can readily see why less regard seeins to be paid to marks on sheep than on other animals. Brands and marks upon horses and cattle which are not herded, but allowed to run upon the range unaccompanied by herdsmen, are treated as very strong evidences of title or ownership. But it seems different as to sheep. If there was no positive identification of the property, the rule as to recent possession ought not to apply. Wills, Cire. Ev. p. 73, side p. 556. But in this case the element of recent possession, with or without accompanying circumstances, did not exist, and no guilty knowledge could be inferred from the possession. The Chipman herdsmen testify to having missed the sheep in November, 1886, and they were not found in the defendant's possession until in February following, a space of three months. Evidently that was not possession of this kind of property recently after the property was lost or stolen. The evidence of the defendant's possession was proper to go to the jury for their consideration in connection with the other circumstances. But the rule as to presumption of guilt does not apply if the prisoner "can account for such possession in some way consistently with his innocence." Id. § 4, p. 64, side p. 47, and cases. possession of the property by the defendant. whether recent or not, was explained by the defendant in an apparently reasonable manner. He said that he had bought the sheep, and gave the names of the parties from whom he had bought, and these men were on hand

The