Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1894-03-31
DEVINE WAS WRONG.
Plpnln Montague is to b. Restored
10 HIS Position.
50 HELD JunGE MERRITT TODAY


Chici Justice Merritt THE mlrn'u 6
decided the case Of Montague vs de.
vino, argued on THURSDAY lat, Boz
which the fro chief was called uiou 60
chow cause why he should not restore
the petitioner TO the position OF Dire.
man IN the nro department irum
which ho had been suspended ior
reasons Previously stated, aud as cot
forth 30 Dcvinc's answer.
His honor said be- had given the
matter ~ much attention az the time
at his disposal would allow, n1I ho diJ
not think tho proofs that had been nd.
duced were sufficient 20 authorize the
petitioners summary removal from
Office. The hut question that ato,c
here was whctherR writ Of matdamus
was the proper remedy % usagh this
Gaze. Judge Merritt, tuon quoted from
The Compiled Laws Of Utah, ASS, Vol.
~. patusWpus $3.50 and 3ial, sections
1u1 aul 0bj, a. iyhJWt.
"a writ VI mauiamus may be issued
by any court iu tuis Territory except
iusiict's or probate court, 90 amy in.
icflor tribunal, corporation, board o.
person, 10 compel tue performance Of
an act when tue law specially cuju'uH
nH n July fUtuliug from M tillce, trust
uf aiauutj 10 10 compel the admission
oi party 20 tuu uso aud enjoy mrut of
risut W office g. which heels entitled
Auu tho riEut O. which be- not lu die.
putc, au1 irOm when hu IL u0l unlaw.
iuly pfuciuiCd by such inferior
iuuunni, corporation, board or Iufs0u.
"lhis writ must DO Issued mai
cases where there " not plain,
speedy anu adequate remedy in the
ordinary course Ui law etc
Judge Merritt quoted also rom
High'a Extraordinary Lpgal RemoIirf,
Paragraphs % aud IS. section % IL 10
the effect that m8niamus 4 n prcu.
LARRY appropriate remedy to correct au
improper removal from a public unicu
" privilege aud TO restore tho tefs0n.
"Aud where ono has leun wruugfuuy
deprived Of bis Office by the illegal
appointment Of another, tho wit viii
go 10 compel his restoration, even
though tho pcfs0u appointed ia his
slcaI bee IN p0sscssiOn dc yao,J"
Section 6s 10Y: "ihu general com.
mon law rule, tnui " Wafraut hr TO-.
mOval VI an officer spucins 'hHrgea
should DO brought agains. htm,anu I'll
ias witutfsus M the matter,
should be sworn, IN hell
applicable even 10 offices unknown 90
tue common law ana created by
statute, aud a disregard vi this rule ia
the nmotion Of M officer may author.
". tue aid OF a mnnuHmus 10 compel
hls restoration. And the wit will 10
g. n board OF commissioner appointed
10y an act Of legislature tor tho perform.
ance Of certain pablo duties, requiring
thsm 10 restore member whom they
have displaced Ia disrrgatd ~ the
common law principle above sta'oi.',
hiH Honor had no doubt, therefore,
that the title 10 this Oillcu could not Je
tried by mandamus; aud that whore
an officer was appointed 90 the charge
Of either the police or hte department,
aud there was mo- statutory provision
tor the appointment OF his assistants.
aud no such power was given 20 any
other board, naturally ho would have
the right TO appoint " remove; but
the Legislature in this case had under.
taken 20 pass IA act providing that
all such matters aa removal shall
be- vested In a certain board Of com.
miBsioueIs; that no rmrloy0 In those
departments shall be removed excspt
ior cause, TO bo stated to such board,
and whose conclusion thereon, he sur.
posed, would be- final. A. to the policy
VI the Legislature IA passing that aci.
whether Il was done iUf partisan or
an - NN ugu q
this court 10 ctlticise or determine, Ho
had only TO oonstfuo the law on the
iublUct, not 10 pronounce whether
the policy was good Or BAD. II tbs
Legislature chose 10 pass that law, n
was certainly within H. power 10 10
10, and, Ia his opinion, the act went
INTO effect Immediately; it took the
power 81 amOtiOn away from ths
heads Of tho departments and vested
II Ia the board OF commissioner, ever
though that body was not yet appoint.
ed. This latter inrt was no fault al
all OF the petitioner Under all tho
circumstances, therefore, his honor
hell that the petition would lie anu
that the alternative writ OF mandate.
heretofore issued, should be made per.
emptOry
AhAN hANANAkAN ~ ANHANANN W tue Doc
sition lTom which his chief ousIed MIN.
COURT NOTES.
The case OF j. T.. DeW0o 10y Vi A.
HeDbgen has been appealed by the
defendant 10 the Third district court
from Justice Blazers court,
Grace l.. HendtfsOu has hled an
action for divorce against David Hem |
der3on In the Third district court on |
the ground OF desofIlOn.
The motion for new trial la the |
case Of the People against James Mich.
olson, convicted Of rape, has beon over.
ruled by Judge Merritt Nicholson |
will therefore undergo his twenty years
in the "peu."
SEVERAL SHORT MATTERS.