The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1894-07-28

The territorial supreme court met
yesterday at p. m. with a full bench
and handed down twenty-siX opinions
besides disposing of a dozen motions
for re-hearing, the largest amount of
business ever transacted by that tri
bunal in one day. OF the twenty-six
opinions eighteen confirmed the judg-
ments of the lower courts and eight
were reversals. OF the applications for
motions for new trial nine were de-
MED.
The reversal of Judge Zane in the
matter or the powers of the municipal
corporation to levy a special sprinkling
tax was the case of most Importance
to the general public. The supreme
court held that the city had no author
ity to levy such tax and that is was
illegal and void. The opinion was
unanimous, being signed by Chief
Justice Merritt and Associate Justices
Smith. Bartch and Miner In this i'm
portant case Richards & Richards and
w. T. Gunter were the attorneys for
the four hundred plaintiffs. in whose
favor this final judgment was
rendered. Another decision inter-
esting specially to municipal Of
fee holders was that in the case
of A. S. Kendall VS.. j. G. McAllister,
in which their honors held that Ken
dali had not been legally removed
from the office of provision inspector,
that the mayor had no power to re-
move him and that the council who
had the power had not legally eXercis-
ed ii in that before removing they
ought to have given him a hearing and
an opportunity tc answer any charges
preferred against him which they did
not do.
The opinion was delivered by Judge
Bartch and concurred in by Judges
Smith and Miner. This is a reversal
of the ruling Of Chief Justice Merritt.
The following is a synopsis of all the
cases in which opinions were handed
down with the results:
SPRINKLTNG TAX ILLEGAL.
Orson H. Petit ct al. appellants VS..
Harry T. Duke, treasurer Of Salt Lake
CITY.
The action was brought by the real
estate owners in this city to enjcin the
defendant from collecting a Sprinkling
tax levied by a local assessment on their
premises abutting on certain streets of
said city.
The plaintiffs set out in their COM
plant certain ordinances Of Salt Lake
city creating sprinkling districts and or
dinances leVying a tax of &c per linear
districts.
1t is alleged by the appellants that
said tax is illegal and void and that
defendant has no authority to collect
the same for the reason that Salt Lake
city has no authority to levy taxes by
local assessment for Sprinkling pur-
poses.
The defendant demurred to the COM
plant on the ground that the facts sta
ted were not sufficient to constitute a
cause Of action.
The demurrer was sustained by the
court below and plaintiffs declining to
amend, judgment was entered in favor
of the defendant disnlfssing the com
plant, from which appeal was taken
Their honors in their opinion stated
that authority to levy taxes must be
given to the city by express words or
necessary implication. The legislature
has expressly conferred upon the city
power to levy and collect taxes for gen
eral or special purposes on real estate
and personal property and for the light
ing, sprinlzling and cleansing of streets
1t has also given the city power 10 levy
taxes by local assessment for sewerage,
paving and other like purposes includ-
ing street improvements and repafrS
water works and gas mains but the
SprinlIling of streets is not included in
the enumeration of instances in which
local assessments may be levied MI
opinion and in conclusion it says: The
tendency Of municipal government to
av'ogate to itself power and to encroach
upon the rights Of the citizens, has led TO
the establishment of salutaIy rulee of
construction limiting their powers to
those expressly granted or arising by
reasonable and necessary implication
from the grant = We think the
tax was levied without authority of law
and is therefore illegal and void. The
demurrer should have been overruIed
and the injunction granted The iudg-
ment Of the lower court is reversed -
Chief Justice Merritt delivered the
opinion in which all the other judges
conquered.
ANOTHER OF THE SAME.
In the case Of o. H. Petit ct al, APP
pellants, VS.. z. r. Clute, assessor and
collector, of Salt Lake county, respon-
dent.
In this action the judgment of the
lower court is reversed on the author
ity Oftthe case of. O. H. Petit and 9th
ers VS.. II. r. Duke, treasurer of Salt
Lake city, the question involved being
the same in both cases. All judges
concurfed.
Richards s. Richards ana w. T. Gun
ter were the attorneys for the appel
lants.
KENDALL VS.. -McALLTsTER.
The people, on the complaint of Alma
S. Kendall, appellant, VS.. James q. Nc
Allister, respondent.
This was quo warranto action to
test the right of the respondent to hold
the Office Of inspector of provisions for
Salt Lake city and to discharge the
duties and receive the emoluments
thereof
The defendant demurred to the COM
plant on the ground that it did not
state facts sufficient to constitute a.
cause Of action. The demurrer was
sustained in the lower court and the
plaintiff .electing to stand by his COM
plant, judgment was entered in favor
OF the defendant. From this Judgment
the plaintiff appealed
On November Is, 1892, appellant, Alma
S Kendall. was appointed to the office
of inspector Of provisions in this CITY.
On January 2, 1894, the mayor appoint
ed James G. AIcAllister in place of A.
S. Kendall, who is hereby removed"
On January IS, 1894, the city council
adopted the following resolution:
Resolved. That the Office of inspec-
tor of provisions be and the same is
hereby declared vacant and that Mr.
Kendall be and he is removed"
y, The council then confirmed the may
s5r's appointment Of McAllister. upon
which Kendall presented his bill for
services and was refused payment and
his services were no longer recognized
by the council.
The opinion states .'the law appears
to be well settled that the power of re-
neval exists only for cause and its ex-
ercise is regulated by statute. An Off
Ger who is rightfully in office can not
be removed without an opportunity, TO
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