The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1897-06-15

MN Il VIII u COAtlBtlll4ls lAAC
defendant board to reinstate him TO the
office of chief of police. The district
court denied the petition and now the
supreme court reverses that decision
and holding that the petitioner was il
legally dismissed, remands the case
with directions TO grant the writ.
The opinion was written by Justice
Bartch and concurred in by Chief Jus
/ tice Zane and Justice Miner.
: On Dec II. 1886, the defendant board
4 three members concurring, dismissed
/ Mr.. Pratt from the Office of chief Of
! police. No charges We're fled against
! him and he was given no hearing, but
was dismissed under the section of the
act Of 1896 of the legislature, which pro-
vides that the chief of either the police
/ or fire departments may be dismissed
/ by three concurring members of the
( board whenever in their judgment the
/ good of the service will be subserved
I thereby.
The opinion goes very fully into the
merits of the case and the various acts
Of the legislatures in regard 10 the po-
lice and fire board. The section is
quoted which provides tina. the chief
and captain of police and chief engi-
neer and assistant engineer of the ire
department shall be appointed by the
D
and shall retain their positions during
good behavior" Then the other section
IS quoted which says: The board shall
have the power and it shall be its duty
ii any time for good cause or when the
scod of the service viii be subserved
/ thereby, upon the concurrence o. three
members thereof. to suspend without
ray or dismiss the chief or captain of
police, the chief or assistant fire engi-
neer or any subordinate officer mem
Der or employee of either department"
The opinion holds that if this latter
section IS 10 be taken as X stands
what under the other section appears
to be intended as a life tenure becomes
merely a tenure at will for in such
event the board at its mere pleasure or
caprice, arbitrarily. at any moment,
and regardless of the public good, may
remove an officer without cause. notice
or hearing By simply stating that the
good CT the service would be subserved
thereby.
This, the opinion holds. was not the
intent Of the legislature.
INTENT OF THE LEGISLATURE.
The intent of the legislature was
that charges be preferred and the ac-
cused given a hearing. If the charges
are not sustained the officer must be
reinstated, but the duty devolves on the
board 10 determine whether the accusa-
tons are Of such a character that The
good of the service requires that the
officer shall be removed and in such
case and upon such procedure the
boards decision is final and conclusive.
The opinion further says:
The construction of the law con-
tended for by counsel for the respond
ert, would clCthe the board with power
which would enable ii to render sec
rfgn II n a
every instance of the fling Of charges
against an officer b. q citizen. the
board could prevent = hearing by dis
missing the accused from office on the
ground that the good of the service /
would be subserved thereby, while in
reality and in truth. the good of the
service and the public veal might be
greatly injured thereby. So likewise,
such construction would empower the
board to wholly disregard section II. !
II is needless TO say that the legislature
intended no such results.
MUST NOT BE CONDEMNED I'M |
HEARD.
That any man should be condemned
unheard is contrary 10 every principle
of natural Justice and cOuIts are not
inclined 10 countenance such arbitrary
power unless under The mandate of
positive law, nor VIII they aid it by
judicial Interpretation.
NO such power can be exercised I'M |
der the law The tenure of Office is
fixed during good behavior and the !
officer de jure is entitled to hold II
during life unless the legislature other :
wise directs, CT by his own acts and 1
conduct he forfeits his right to Il, but (
such forfeiture cannot be declared with /
ous accusations having been preferred I
and an opportunity given to be heard I
in defense or explanation of the mat |
ters suggested as the cause of dimis- /
sal
1T may be that in the case at har. !
the power of removal was exercised !
under an apprehension that such ac-
zion was demanded in the interests OF /
the public service. but this. if true. /
cannot be considered by US.
ACTION NULL AND VOID. /
The respondent board having at
tempted to remove the appellant sum-
nrarily without fling charges and Civ
ing him an opportunity to be heard.
it's action was null and void and Gre
ated no vacancy. The appellant was. /
therefore. entitled TO be recognized by
the board as the lawful incumbent and
had the right to discharge the duties
and receive the emoluments of the office
until lawfully removed or until in some
legal way he ceased to be the rightful
THE PROPER REM
EDY.
The respondent also contended that
the appellant had mistaken his rem
edy and that mandamus will not lie to
restore him to Office, because, since
his removal another person has had /
charge thereof On this point the
opinion holds that where a person has
been in actual and lawful posses
sion, received and enjoyed the enolu-
ments thereof, is entitled to the office
de jure and was unlawfully removed
therefrom, mandamus is an appropri-
ate remedy to restore the de jure officer
to his Office and ii is not necessary to
resort TO quo warranto even though
the office be in the possession of an
other person.
In conclusion the opinion says: 'In
the case at bar it clearly appears from
the record that the appellant was
lawfully appointed to the office of chief
Of police of Salt Lake City; that he
was in the active possession. dis
charged the duties and received and
enjoyed the emoluments thereof until
he was removed; that he is entitled
TO the office de jure. Therefore. man
iamus is a proper remedy and the
court erred in refusing the relief.
The cause is reversed and remanded
with directions to grant the writ"
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