The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1894-02-11

lion is made for the appointment of /
subordinate officer by the head of thu
department, who should have tn
charge and custody of the records
books and papers appertaining to tn
lofiice, when the head of the depart
lment should be removed from
the office by the president o
Is, 81, AZ. When the navy department
was established in the year 1898,
IStory, 49S. provision is made for thu
Icharge and custody of the books, re
lcords, and documents of the depart
Imsnt. in case of vacancy in the Office
LOT secretary, by removal or otherwise
4 1t is not here said, by removal by tn.
president as is done with respect to The
heads of the other departments; anC
yet there can be no doubt that he hold:
his office by the same tenure as tbs
lother secretaries. and is removable
ny the president. The change o.
lphraseology. arose probably, from its
having become the settled and vel
understood construction of the consti
tuition, that the power of removal was
vested IN the president alone, in sucf
cases; although appointment of the Of
ncer was by the president and Senate
Can there be any reasona BILE doubt
but tina; under this decision, which
Is as binding on this court as an act
lof the legislature itself, the statute il
lquestjon, considered separate and apart
from any other acts of the Legislature
c"nfers upon the mayor the power to
remove the appointive officers of the
city
The tenure OF appointive officers is
not fixed by it, neither was the tenure
loi sthe clerk in the case quoted, fixed
by law.
There IS no express power authoriz.
! ing the mayor to remove. neither does
me constitution Of the United States
CONFER this power upon the president
IL express terms, nor was such power
conferred upon Judge Lawrence to re-
move his clerk. As the constitution Of
inc united States beyond any doubt
uoder TINS decision, which ever since
us rendition has been recognized and
followed, vests the. president with The
power 70 remove at Will officers an
pointed by him. and with the advice
ana consent Of the Senate. il newt
stn3y follows that the law Of 1892. which
ia me very terms Of the clause of the
constitution referred to, gives the
mayor the power to appoint certain
oIncers by and With the advice and
consent OF the council, also. by force
~ us express terms. gives to the mayor
ficers. 9'On ol-
The analogy thus far between the
odSs al bar and the case quoted is
perfect and complete. If therefore tbe
mayor has not the power to remove
dePolhtNe officers. it must be by virtue
az some subsequent statute limiting
oae act OF 1882. or by some provisions
OF previous statutes in conflict with
llle idtler act There is no subsequent
act on the subject and therefore for
ne sake OF the argument let it he
s {. .'. That there are provisions
o. ptiof statutes inconsistent with the
llght of the mayor to remove. What
tnen IS the result? Simply this and
nothing more, all such provisions nv
n NTH section OF the act Of 1893
Whleh provides for the repeal of ali
laws inconsistent with the provisions
Iot SAID act are in express terms. re-
pealed and have no force, leaving the
power OF the mayor TO remove as fnJl
ana complete as is the power of the
president under the constitution. and
as was the power of Judge Lawrence
sustained by the supreme court. can
any proposition be palmer?
IN the decision of the case Quoted
me court further says on page PSI
me power vested in the court Gudge
La WrehNe) was continuing power,
ana TIE mere appointment of a s,1c-
cessor Oo the clerk would per Sc be
a removal of the prior incumbent so
lar al least. as his rights were con
cerned. There con1d IL ,,ot on ~
Two clerks at the same time. The
olllees would be inconsistent with each
utief ana could not stand together.
~ follows that under the statute of
49, the power TO appoint is also a
centlnulng power (the same is also
true Of the president under the con
sutuuon) and is not exhausted in
edch case by its exercise. It's exercise
may be repeated at the will of the
dI.polnung power and each new APP
polntment works a removal of the
prior incumbent, and that any pre-
Vious statutes fixing the tenure of the
dppomCVe officers, for any definite
period. is inconsistent with the CON
nnulng power of removal and that all
such statutes are in express terms re-
pealed by the fifth section of the
statute of 1892. In other words bv the
very terms and legal force of the latter
statute the tenure of all appointive
ofnoers is dependent upon the will of
the appointive power. But s,lnnose
the council should fail to confirm the
mayor appointee. what then would
follow? Simply this. There would he
o. vacancy until the mayor 5hould
make another appointment.
do not think that the question Ct
the. power Of the council to remove
without charges preferred is necessarily
involved in this case 1t certainly is
not IT, as | am convinced, the laayor
has the right to remove.
Respectfully submitted.
r. n. BASKIN
of council for defendant.
Judge Merritt took charge of the ma
pers and will render an opinion at the
earliest possible moment.