The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1894-02-11
YHE PROVISION INSPECTOR
The Case of Kendall VS.. Nc
Allister Heard.
SOME ABLE ARGUMENTS.
MAYOR BASKIN DEFINES HIS oPIN.
ION VERY CLEARLY.
A Brief History of the Case Which
Is TO Settle Vexed Questionable
Matter Taken Under Amusement
by Judge Merritt.

tOulCii dHeCtnS the authority OF Inc
respective principals to remove mum
cipal appointees was revived in Judge
Merritt's division Of the district court
yesterday morning The issue was ex
haustively reviewed and at the con
clusion of arguments that were pro
traeted until after o'clock. the court
took the matter under Amusement.
The title of tae case under which the
question arises Is that of The People
etc, by Walter 5. Murphy. county at
torney, on complaint Of Alma s. Ken.
dali against James G. McAllister.
The action was instituted by Kendall
TO dispossess McAllister, who occupies
the Office of inspector of provisions by
Virtue Of an appointment at the hands
of Mayor Baskin and his subsequent
contirma ton by the city council. The
complaint sets up that he was, on No
Nember IS. 1892. appointed TO the po-
sltion in controversy for a term of two
years; that he was removed without
authority; that the present incumbent
IS holding the office Illegally and upon
this contention prays for a writ of
custer and his own installation. the
plaintiff at the same time setting up
mat he is the legal occupant of the
office
The proceedings yesterday came UP
on the respondents demurrer to the
complaint that it did not contain suf-
ncient to establish a cause of action.
Mayor Baskin and City Attorney Hoge
appeared for the respondent, Frank
Pierce for the plaintiff and lie Grande
Young as special interpreter of the
law from which the prerogative in
question was derived.
Both sides launched briefs nearly the
length Of Magma Charta, after which
= IL.
the power of appointment carried an
inherent power of removal. and that
both were vested in the mayor. re-
viewed the case as it has been thrice
reviewed in the council and in the
columns of The Herald. He was followed
by lie Grande Young, who went back
into the primitive days of municipal
authority in Zion and who urged that
the power of removal rested with the
council upon a tWo-thirds vote of that
body.
Mr.. Pierce took a similar attitude.
whereupOn Judge Baskin took the
noor. In opening, the judge disclaimed
that his interest in the case extended
further than his interest in me good
government of the city. During his
lncunbency of the office OF mayor he
had exercised the right of removal.
frSt III the case of Janney who had
been appointed chief of police His
deduction was that if he had not the
power of removal, as contended by
plaintiffs, then the removal of Janney
was improper and he was chief of no
lice today Notwithstanding the terms
Of Chief Paul and Chief Pratt had in
terVened. Similar, he urged, would be
The case in the retirement of w H.
Ryan. and Alma. S. Kendall II was to
The interest Of the city and to the in
terest of good government to have the
questions adjudicated by a. competent
tribunal and IS senior counsel for
McAllister he submitted the following
concensus of his position:
The statute giving the appointing
power e the mayor provides:
Thai hereafter the mayor shall ap-
point by and with the advice and CON
sent of The council, all officers who are
now made appointive by said council
tSee Laws OF 1872. sec. 5. page 10
This statute is entirely silent on the
subject of the tenure of appeintive
officers. and when construed without
reference TO the provisions of other
acts Of the Legislature. there is no
doubt hut what it vests the mayor with
the power to remove appointive Off
GERS Al his pleasure. This conclusion
is fully sustained in eX parte Hennen.
Is Peters. go.
The case arose on an application for
a rule upon Judge Lawrence 10 show
cause why mandamus should not be
issued against him and requiring him
10 restore Hennen to the Office of clerk.
from which he had been removed by
the judge.
The tenure Of the Office of clerk was
not fixed by law.
The supreme court in the opinion.
page 257. said:
By the constitution of the United
States. art. ,. sec. =. it is provided
that the president shall nominate and
by and with the advice and consent
q the Senate, shall appoint certain
officers therein designated. and all
other officers of the United States.
whose appointments are not herein
otherwise provided for. and which
shall be eSta blished hy law: but the
Congress may by law vest the an
pointmen1 % such inferior officers as
they shall think proper. in the presi-
dent alone. in the courts OF law. or in
the heads Of departments.
Gage 2SS-@ The constitution is
silent with respect to the power Of re-
muval from office. where the tenure is
NOT liked. Il provides that the Judges
both OF the supreme and inferior
courts. shai hold their offices dining
good behavior. But no tenure is fxe5
Tor the Office of clerks Congress has
by law limited the tenure OF certain
oifleers te The term of four years. 3
story, 1870; but expressly Drn1idipor
that the officers shall. within tba7
term, be removed at pleasure: which
OF COURSE Is without requiring any
cause Ter such removal The clerks of
courts are not included within tbie
law. anc there IS no express Limitation
III ne constitution, or laws of Con-
eIeSs upon the tenure of the Office
AS officers the tenure of Whit, :;
flpt fixed LV the por,~f;.,,-;,,,
ny law. must be held either duyino
good behavior, or (Which is the same
thing IL contemplation of law. durin,y
the lfe of the incumbent. or nust he
heia al the viii or discretion of some
elarlhaeht OF The government. and
suolect 10 removal at pleasure.
IL cannot, for moment he ad,,f.+oz
that u was the intention OF fhe ca,,st;
luton, that those offices which Are
oshptoinated inferior offices sho1fld ~
helu during life. And if relnoral,la ~
pressure. by whom is such removal ~
pe madef In the absence of All cor
Sueul'onat provision. or statutory reon-
1al'''i, lt would seem to be q sound
ana necessary rule to consider ~
power OF removal as incident IN IN
power OF appointment This power 81
removal from Office was a subject ,,a,,et,
disputed. and upon which a. great al
Nerslty OF opinion was entertained =,
IL nc carry history of this government
IN. ms related, however. TO the power of
- ~ ~ eSluent 10 remove officers an
pointed with the concurrence Of a.
Senate. and the great question VIZ az
whether the removal was to be nv The
president alone, or with the concn,.-
renee Of the Senate, both constitl,ts,l.-
the appointing power. No one 5enia55
me power Of the president and Senate
Jointly 10 remove, where the fsr,,,..
of the Office was not fixed nv tb eel ao,, :
stlturon; which was a full recoen;-
uon OF the principle that the nnT-ar