Keigley v. Bench, City Recorder , 97 Utah 69 ( 1939 )

I concur in the order making the alternative writ of mandate and the alternative writ of prohibition in aid thereof permanent. But I think the majority opinion recognizes a rule of practice and procedure which is neither in harmony with the purport of our statutes concerning referendum nor with fundamental democratic ideals, nor with the public weal and welfare. That opinion recognizes or authorizes the practice and the right of any city or town recorder or county clerk to refuse to obey the plain, specific, and positive mandate of the statute just because in his opinion it may at some time in the future result in an abortive or ineffectual thing. To my mind that opinion has the effect of saying that a city recorder may, on a matter which at the time and stage of proceeding is not even branded, marked or colored with a public interest, deny to citizens and voters positive rights expressly granted by statutes just because in his opinion they hope to ultimately try to accomplish something in the community which he (the recorder) thinks that they should not be permitted to do. Or to put it another way, may a city recorder disregard the positive mandate of law and say that citizens may not attempt to ascertain the sentiment of the voters in regard to action taken by the governing body just because they may not be able to change the result of the action so taken? Should the city recorder, or any one else acting through him, prevent the electors of the city from making a public record in a manner provided by law of their opposition, or possible opposition to action taken by the governing body just because it may not be possible to change the result of the action taken? May he say that the citizens shall not be permitted to petition for a redress of grievances or even to ascertain if the people are interested enough in the matter to ask that they be permitted to be heard?

These matters are all inherent in our democracy. They are basic in representative government. They are fundamental in our constitution, and safeguarded in our statutes. And it seems to me that the prevailing opinion brushes them aside and recognizes in a little appointive office of city recorder dictatorial ideas in plain derogation of the statutes. The laws governing these matters are set forth in Chapter 10 of Title 25, R.S.U. 1933, enacted pursuant to Section 1 of Article 6 of the State Constitution. The procedure therein set up with respect to a referendum is as follows:

(a) An application for "petition copies" signed by five qualified electors of the city shall be filed with and certain fees paid to the recorder; (b) The recorder shall then solicit bids from three printers for printing the required petition copies; (c) The recorder notifies the persons who filed the application of the amount of the lowest bid for printing; (d) The amount of such printer's bid must be paid to the recorder by the applicants, called "sponsors," to pay for the printing before any further proceeding or steps are taken by the recorder; (e) If such fees are paid within the time prescribed, the recorder must have the petitions printed and prepared for circulation and deliver them to the sponsors; (f) These petitions may then be circulated by the sponsors for signing. If circulated and signed as required by law, by the required number of qualified signers, and filed with the recorder, they become "Petitions for Referendum." (g) Upon the filing of a proper "petition for referendum" (this includes proper matters of time, form, substance, and signers), the operation of the law to be referred is suspended until after the referendum election. (h) The city attorney then prepares a ballot title for the measure. (i) The recorder submits by proper ballot the measure referred to the voters at the next municipal election, not sooner than ninety days unless the governing body of the city sooner order a special election on the matter.

In the instant case the plaintiffs filed with the defendant as city recorder a proper application for "petition copies" of a proposed referendum petition and paid to the defendant the fees therefor. Defendant accepted the fee, filed the application in his office and a few days later notified the sponsors that he would not solicit bids for the printing. Sponsors then applied to this court for a writ to compel the defendant to proceed in the premises, in performance of his ministerial duties as recorder. The simple question is: Is the duty of the recorder, at the point reached in this instance, to solicit bids for printing, to notify one of the sponsors of the lowest bid, and if such amount be paid into his office by the sponsors, to have the petition copies printed and delivered to the sponsors a purely ministerial, a positive mandatory, a mere clerical duty or is it one that involves the use of discretion, or of judgment, or an act involved in the management of the affairs of the city so as to be essentially an executive duty? If the former, the writ should be made permanent. If the latter, the alternative writ may be quashed. That the matters here presented fall within the first class or group there can be no doubt and the opinion of my associates so concedes.

A discussion of the use of the writ to compel the performance of a purely ministerial or clerical duty is discussed inWhite v. Welling, 89 Utah 335, 57 P.2d 703, and amplified inColeman et al. v. Bench, 96 Utah 143, 84 P.2d 412, to which the reader is referred. The confusion between counsel and what I deem the error in the prevailing opinion results from a consideration of the difference between legislative and administrative matters rather than what is here involved, to wit, the distinctions between purely ministerial or clerical duties on the one hand and executive duties on the other hand in the administrative field. That the recorder is in no sense a legislative officer, that he has no duties or functions in the legislative field, and that all his duties fall within the administrative as distinguished from the legislative or judicial fields, will be conceded by all. The recorder here contends that the ordinance in question is not a matter of legislation, is not an act of the city commission in its legislative capacity, and so subject to a referendum, but is an act of the city commissioners acting as the executive department of the city, and as such their acts are not subject to legislative review, repeal, or referendum by the people acting as one of the repositories of the legislative power of the city. Conceding for the argument, but expressly withholding any ruling upon it, that such contention may be well taken, it cannot avail the defendant in this action. He is as far as this case is concerned no part of the executive power of the city. No such authority is vested in him, and he is vested with no discretion or judgment over the policies or management of the city. He does not determine its policies or control or manage its business or activities. He is an appointed clerical officer whose duties are prescribed by law. By the provisions of Chapter 6 of Title 15, R.S.U. 1933, the Board of Commissioners, Mayor and City Council, and Board of Trustees are respectively made the legislative and governing body in cities of the first, second and third classes, and incorporated towns. By Section 15-6-14 it is provided that in cities of the second class, such as Provo, the executive and administrative powers, authorities and duties, are vested in the commissioners by departments. The duties of the recorder are fixed by Article 2 and Article 3 of said Chapter 6, and provide that he serves under the City Commission in a clerical or purely ministerial capacity as its bookkeeper and auditor. His duties while performed in the administrative field are generally clerical or purely ministerial, and in no sense executive ones. To make clear my position, and without quibbling over or being tied up in terms, the administrative field in government covers or embraces two sets or divisions of activity — those purely ministerial, that is, clerical in nature, and those executive, that is, involved in the management, direction and control of the policy, affairs and business of the city. One officer or employe may have duties purely clerical, one may have duties purely executive, and another may have some duties that are clerical and some duties that are executive. It is the nature of the particular duty at the time that determines whether mandamus will lie or not. And because in a particular procedure some duties may be executive in character, and so cannot be compelled, does not justify an official in refusing to perform those duties which are clerical in character. Until the proceeding reaches that point in an orderly procedure where the duty of the official is one executive in character, he should be required to perform his duty promptly and without equivocation, stalling or delay. The clerical officer, that is the one whose duty at the time is clerical, should be required to act and perform as a clerk, and not assume to be an executive until an executive duty devolves upon him.

In the instant case the duties of the city recorder are clearly set forth and defined in the statutes. Nothing is left to judgment or discretion. Every step he must take, the time and method of doing it and the result thereof are prescribed. There is no public interest at stake or in any way involved. No restrictions are placed upon the public; no rights of the city limited, curtailed, expanded, construed, acted upon or influenced. No obligation is imposed upon the city; no city money expended; city property used, or city activities affected. The matter is wholly between the sponsors and the incumbent of the city recorder's office. He took their money and then refused to perform his duties for which they paid him. It may be that the printing bids would be so high or because of a change of heart that the sponsors would abandon this idea. It may be that if the petitions were printed and circulated the sponsors could not obtain the requisite number of qualified signers, or they may be signed by 95% of the qualified signers in the city and still they may never be filed, asking for a referendum. Up to this stage neither the city corporation nor the public interest is or can be affected by the proceeding had. What is being done does not affect the management, control, business, enterprises, finances, activities or general police powers or duties of the city. How then can the duty of the recorder be anything but a purely clerical duty which he must perform without equivocation or delay?

If and when the circulated petitions properly signed and asking for a referendum are presented to the recorder for filing, a somewhat different situation is presented. I opine that if such petition in proper form, properly and sufficiently signed and authenticated, is presented to the recorder, accepted and filed by him, a new duty is imposed upon him to carry out his duties prescribed by statute in submitting the matter to a vote of the people at the next ensuing municipal election more than ninety days after the filing of such petition, unless the city commission order that a special election be sooner held to vote upon the matter. When such referendum petition is filed with the recorder, the public interest and concern are drawn into the picture; the city's activities or policies as determined by the commission are in part interfered with, its proposed activity or policy at least temporarily abated, and the hand of the city officials in regard thereto stayed. If at any time the recorder may be regarded as engaged in executive duties so as to permit him to question the right to a referendum, it would seem clear that such time is when a proper and sufficient petition is presented calling for the referendum, and the acceptance and filing of which by him prevents the ordinance from going into effect, stays the hand of the city officials, and for a time at least abates or holds up the policy which the city, through its commission, would otherwise pursue. As to whether he can raise the question at all we need not now decide. Certainly he may not raise the question when he did here. I concur therefore in the order making the writ permanent. I think costs should be taxed against the defendant personally.