Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1894-03-29
FIRE CHIEF DEVINE.
10 Pals Ia His Answer " Tia.
Writ oil Mandate.
HoSrAoUE's GRIEyoUS MLuEyisi


last week 10 Fire Cairf Devlnc, nj the
instance Of Charles II. Montague, "a
drposcI pipoman Of tue fire depart.
meni, calling upon the doien inut 60
show cause why the petitioner should
not DO by him restored 70 his former
position.
The substance Of Afoniaguo'a com.
plaint was that he had been member
Of the Salt Lake fire department since
tho year 1891, aud that on March l0.h
Of the present year he WA die.
charged by the dofunian, without
probable cause ami without any
charges having been preferred against
him. The petition was lojgci under
the provisions Of Powere's Fire and
Police Commission bill, passed by the
late territorial Legislature.
The parties 90 tue proceedings were
present, tue petitioner being represent
Ell by Judge Powers aud Attorney ID.
n. 5tfaup aud Fire Chief Dovino BY
CITY Attorney huge.
Inc defendant this morning, lust
after tho opening VI court, filed HE
return ami answer . tho writ, setting
forth the various reasons why hu does
not restore Montague 10 his former
y lsltion OF piprmsn. lie denies u that
Montague was nj any time discharged
without cause OF warrant ui law;
(2l that tho discharge proceedings
were ex parlc, OF that NJ cnafgus hal
been preferred against him. HH then
alleges that Montague u "hally dia.
oascd anl IN ICtod with catarfh Ia the
r-aI, whlcu produces "a most tout nuI
offensive smell, rendering the air In
toe room occupied by him disagrceablv
anl unwholesImu aud almost unnuaf-
nblc," that lac was periodically afflicted
with rheumatism and unable 10 per-
f1rm bis dutiua Ia the iire department,
aui that ~ tuch times the hfu uhloi
was comuellcI 10, anu did, appoint
another person 10 tako hi plact-hll u
whlcn, Gays Mt. Deyine, was "detfi.
mental 10 and tended " lesiou the
efficiency Of the department" That
10 was neee-sAfy In the branch OF the
lire department whpro Montague had
been heretofore employed fof other
employees ~ sloup on alternate nights
la the eame room occupied by Mon.
tayuu tbs previous night. That "tho
bed was rendered Onensive from the
smell OF oatarTh left by him 10 such an
extent "that his ojnifervs could not
sleep ,heTe with any degfeuof comfort"
Montague, II u further ayeffui, was
n disagfcoaole, and discharged his
duties Ina the department "in achurl.
ish and reluctant manner, and by his
conduct aud manifest dispJaltiOn 10
resent and dis0bsy the lawful orders
aud directions Of those placed over him
tended 10 create contentious aud do
stroy discipline In the department."
IL therefore, on March l1.h last, be-
came necessary 10 suspend Montague
from further service. The de'endAnt
asked under these circumstances that
the application DO dismissed, with
reasonable Gusts,
Judge Powers, on behalf OF the
petitioner, said ho took Il that the only
matter that could be properly brought
before this court under the petition was
a question Of law. AZ ~ tho answer
filed, as he viewed II. u had NO bearing
Whatever on this hearing. The prti.
ton was lodged Tor the purpose Of
obtaining the construction by this
court OF what was termed Fan act 10
appoints board Of police and IRE com
missiOnurs Ia (Couain) citru and 10
place the police au1 IRE departments
of said cities upOu uOn-partlHan
basie,n passed by tho last legislature.
II this law wAs not applicable " the
chlelH OF departments ifJm the tims Oi
It's approval, then this court would
not review the discretion vested In
those oiilceTs As regarded removal, GU
question OF manlAmus. lhs whole
question, then, before his Hoaor land
everything else was whvel) was
whether under this law, after its pas.
sage and approval, tue Ire chief mad
tho right 10 remove any man under
him; and that point came up properly
under the demurrer, Al the court held
that he had that right c.uusol Tor the
petitioner were content, rhis, then,
was the proposition; II lnls law was
10 force from the time Of lie approval,
aud preventel the removal OF any man
under IT, terms, and Montague hau not
been removed IN accordance herewith,
then the mauunmua would lie; but N ID
were commended that the law did not
take effect until the b0ari Of commits
sion named under the act should have
been appoluttd, then lh5 mandAmus
would not lie.
T5ec. y OF the act states that "wlthin
thirty days after the passage aud ap-
proyal oI this act there shall DO APP
pointed In all cities (0i 1900 or more
iuhabltanls) bIarI ui ponce anu hfe
commissioner" ctcl
Judge Merritt sali a, tho act pro-
vided there should 10 commission
appointed, tue question now was
whether II went into effect from this
time OF It's passage, VI NOT until this
commissioners were appointed,
Judge Hoge remarked that this act
was signed ON the sth Jay OF March
and, in his opinion, % became law
forthwith, II tne position taken by
the petitioner here was correct, then
the city had been without any govern
ment Ol the lire department. rom
March 9Th down 10 ne present
time, AZ no commission had yet
beea named, aud % would signify
that however Inefficient On derelict OF
duty tho employees might be-, the chief
would DO perfectly helpless aud the
citizens OF Salt Lake would bs at the
simple mercy Of any man VINO might
be negleotiui OF or Indifferent 10 duty
who might refuse 10 40 win tho do.
partment when called OUT The quea-
ton arose did the Legislature oontem.
plate any such calamity ha might arise
under this aoi7 he believed mat the
lire chief had a right 10 step In anu
suspend any member VI Tue depart