The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1897-02-07

Judge Cherry yesterday delivere'
! judgment in the matter of the petition
/ of ex-Chief of Police Pratt for wri
of mandate compelling the board o
police and fire commissioners to re
instate him to the office. His homo
denied the petition and handed dowr
the following written opinion:
JUDGE CHERRY'S OPINION.
This is an action to obtain a peremp-
tory writ of mandate against the de-
PENDANTS to compel them to restore the
plaintiff, Arthur Pratt, to the position
of chief of police of Salt Lake City
Utah, from which position he alleges
he was wrongfully dismissed by saio
defendants on or about the 18th of De
cember, 1896. The alleged wrongful dis
missal is claimed to consist in the fact
that plaintiff was arbitrarily and
without cause dismissed from said Of
fee, and that no charges were ever
made or filed, that no notice was given
of a hearing whereby plaintiff would
have an opportunity to appear and
defend himself.
The defendants answered and also
demurred to the complaint, but the de-
murrer was not pressed, but was by
agreement overruled, pro forma, and
the matter heard upon the law and
evidence before the court.
The evidence of the plaintiff in brief
was to the effect that the petitioner,
Arthur Pratt, was appointed on or
about December 31st, 1894, to the office
of chief of police by the commission
ers, to hold said Office during good
behavior. The evidence of the defend
ants was to the effect that the pres
ent commissioners thought they had
sufficient reasons to remove the plain
tiff on the ground that the good of
the service would be subserved there
by-," three members of the board con-
curing.
AS this court views the question the
whole issue depends upon the construc-
ton to be given to the law of 1896 upon
this subject.
The plaintiff was appointed to the
office in question under and by virtue
of the law as it then existed in 1894.
During his occupancy of said office, and
before his removal the law of 1894 was
expressly repealed and the law of 1896
was enacted in lieu thereof.
PUBLIC OFFICE NOT A VESTED
RIGHT
The appointment or election of pub
lie officer does not create any contract
between the government and himself
that he shall continue an incumbent of
that Office for the period named. Where
a particular Office has been created by
statute the legislative power may abol-
ish the office without regard to the
tenure or expectations of the incum-
bent, or may lengthen or abridge the
term of office, or increase the burdens
or duties Of the office without enhanc-
n NJ q no
office vacant and appoint another per-
son to NIL the vacancy. In support of
the above propositions reference is
made to Vol. III, of American and
English Encyclopedia of Law, page
$50, and the cases therein cited in the
notes. Neither does this court con-
slider that a public office becomes a
vested right. No person can claim
vested right in the permanency of a
particular office or the emoluments
thereof, when public policy or the con-
venience of justice demands a change
or the discontinuance of the same. A
right in a statutory sense cannot be
regarded as vested unless it amounts
to something more than mere expecta-
ton of future benefits or interests as
may he founded upon an anticipated
continuance of the existence of the
general laws.
that the incumbent of the office of
chief of police could not be dismissed
or removed except for cause upon
written charges and hearing before
the said commissioners. See sections
and 20, chapter 81, Laws of Utah of
1894. The law of 1896, upon the same
subject, expressly repeats the act of
1894, and ii is the construction of the
latter act that must at last deter
+I,A tor
evident that the legislature intended
to make important changes in the
matters of removals in certain Offices
which was the Office of chief of
police.
FOR THE GOOD OF THE SERVICE.
Section 20, act of 1894, is not re-
enacted in the law of 1896, but the
mode of removal is radically changed,
and by the language in section 10.
page 123, laws of 1896, it would seem
that the law gave discretionary power
to the said board of commissioners to
either dismiss or suspend for good
cause, or, IF the good of the service
would be subserved thereby" This
latter phrase is nowhere found in the
law of 1894, or any language of similar
and it would seem that the
legislative intent was to confer upon
at pleasure or at its discre-
ton and without good cause This
would seem evident from
The distinctive character of the phrase
bove referred to.
If this is the correct construction of
he law applicable to this case, then
t follows that the evidence is i'm
for the reason that the dis
dictionary power of the board could
lot be called in question or reviewed
n such a proceeding as this.
Plaintiffs counsel, in his oral argu-
nent and in his brief, relies almost
Wholly upon the case of the People VS..
tenth Utah, page 357. and !
he authorities therein cited
This court is of the opinion that the i
ase at bar is plainly distinguishable |
rom the McAllister case. The statute
lnder which the latter case was de- |
ided gave no such broad discretionary |
'ower as is given in the act of 1896. |
n that case. the statutory provision as |
o the power of the city council or
mayor to remove an official from Of
ice was in substance as provided in
he act of 1894. viz: the requirement of
written charges, notice, and a hearing.
tc. If the act of 1896 makes the ten
re of the office Of the chief of police
epend upon the pleasure or discre-
ion of the board, then the McAllister
ase would not be in point in the case
t bar.
The other question so ably presented
Y both sides in the case need not be
iscussed here. as the view taken bv
his court disooses of the question of
he right of the plaintiff to have the
7rit of mandate issued to restore him
} his position, and whether it was
ne proper remedy in the first in
lance becomes immateriaI