The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-03-25


I successors are elected and qualified.
with the polic. of the law which is to
have some one. at all times. in a public
ONCE to discharge the duties thereon. and
/ in a doubtful case. such policy will great
/ " influence the Interpretation of the law
( hors vacancies in public offices. and great
precautions are taken TO guard against
/ their occurrence.
AS TO THE EMoLUMENTS.
/ The remaining question is whether the
! appellant is entitled 10 the emoluments
I OF the Office. during the time OF his sus-
! pension.
TO determine this question. reference to
the act of 1896 again becomes necessary
! Section 10 of that act empowered the
board of police and fire commissioners 10
suspend any members of the police de-
partment including the chief at any time
! for good cause, or when the good or the
/ service will be -subserved thereby. upon
/ the concurrence of three members there
/ of" The suspension in this case, how
ever, was evidently made by virtue of
! section II, which, so far as material here
reads: Any citizen may prefer and ME
with the board a complaint ard charges
against the chief OF either department
or any officer member or employee there
charges the board shall sus-
pend such officer or member complained
of. If he be not already under suspension.
and it, in their Judgment. the charges
I
be heard and investigated
1t being admitted that charges were
preferred, the board clearly had the pow
er under this section TO suspend the ap-
pellant until a hearing could be had. and
in case of ordinary suspension without
further penalty, no doubt, the board
could proceed as provided in the same
section but in any case where the Suspen-
sion was to be without pay or a removal
from Office was TO follow. the board was
also bound to have its proceedings con-
form to the provisions of section IL. which
reads as follows;
the chief engineer and assistant engineer
of the fire department. each and all of
them. shall be subject TO suspension from
Office for cause. by vote of three members
of the board. at any time. ANY officer so
suspended shall thereupon cease 10 exer-
else the functions OF his office until ne
shall be reinstated. In case of suspension,
the board shall at once consider and eX-
anime the charges against the officer sus-
pended giving him an opportunity TO be
heard in his own deferse After hearing
the matter. the board shall determine
whether the charges are sustained. If
the charges shall not be sustained by the
board the officer shall be Immediately re-
nstated. If the board shall determine
that the charges are sustained. it shall
at once determine whether the goof of
the service requires that the suspended
officer shall be removed from office or shall
be suspended from office without pay for
a fixed period. and in all cases a vote of
cient to determine that the charges are
sustained and to fXe the punishment by
removal from office or otherwise The
board shall communicate its decision TO
the officer charged in writing. and their
decision shall be final and conclusive in
all cases"
SHOULD BE TRIED AT ONCE.
1t viii be noticed that. under this sec
ton. if the officer was to be suspended
without pa:. II was incumbent upon the
board to proceed at once to consider and
examine the charges, and TO give MIN OPP
portunity to be heard in his own defense.
Then. upon the officer having been. or
having had an opportunity to be heard,
il was the duty of the board to determine
whether the charges were sustained. and.
if not sustained. the officer was entitled
to be Immediately reinstated. If sus-
tanned. then It was equally its duty to
lat once determine" whether the good of
the service required that the suspended
officer should be removed. or should be
suspended from Office without pay for
fixed period" 1T Will further he noticed
that from the time an officer was sus-
pended under this statute. he was hound
to cease performing the duties of the
office until reinstated.
These same provisions of the act We're
considered IN Pratt vs.. board of police
and fire commissioners. supra, where
similar question as TO procedure was in
Volved and we refer to that case for
full discussion On this point.
In the case at bar the officer was sus-
nended from Office by the board on July
Il 1897 and remained suspended. without
a hearing or an opportunity to be heard,
so far as shown by the record. until Jan
uary l. 1895. when. as is conceded. the
powers of the board were abroSated, and
II ceased to exist. by reason of the taking
effect of the revised statutes. 1t is shown
that the officer. though prohibited by
statute to perform the duties of the office.
was at all times ready and willing to do
so. and that. after the abrogation Of the
board. and the failure of the CHARGES as
a sequence. he applied to the mayor 10
be permitted TO discharge the duties. who
also refused to recognize him.
AN UNWARRANTED PROCEEDING. !
Thus during all the time from the 18th
of july 1897 to the list of January. 1885,
the officer remained suspended BY order
of the board. ara thereafter. in effect
suspended. by the refusal of the mayor
TO recognize him as an incumbent, with
out hearing or an opportunity 10 ne
heard. as provided by law; and now. after
such an unwarranted and remarkable
proceeding, in direct opposition to the
plain provisions of statute. and to judi
cial Interpretation. this court is asked to
declare in solemn Judgment that the in
cumbent. thus denied a hearing, so far
as the record shows. is not entitled TO the
emouments of the Office. would be
of his suspension. Upon what ground. II
may be asked. shall we so declare? The /
record answers. because the board and
mayor have failed to perform their duty
under the law respecting the charges +
This proceeding was a manifest violation
of the very letter and spirit of the stat
ute. To hold that. under the circum-
stances of this case. the incumbent o. a
public office had forfeited his right to the I
emoluments o fthe office. would be
menace to good government. because IL
would enable the suspendiDg power TO be I
exercised from mere i'll will. caprice. or 4
other improper motive. regardless Of the /
public veal. Competent persons would .
doubtless be loath 20 enter the public 4
service under such a condition of affairs, .
if their salaries could be forfeited and I
their regulations attacked. for an indefi .
mite period. by mere suspension. without .
an opportunity to be heard. No such /
power will be aided by judicial construc-
ton. 1t savors too much of desDotism !
and injustice. and will not be countenanc- /
law.
ENTITLED TO SALARY.
Whether the suspension in the first in
stance was merited, we have no means of /
and because OF the total failure
Of the suspending power TO provide for
hearing. we would not be justified In as
sumins that it was so. If. however. the
appellant failed in the performance of his
duty. or was guilty of improper conduct,
he ought to have been suspended and
then his case promptly heard, and If,
upon the hearing. 1t had been ascertained
hat the charges were sufficient and sus-
ained he ought to have been as prompt
" removed. or suspended without pay,
rs the evidence might have warranted.
In such event, forfeiture of salary could
lot have been questioned. Plain business
principles, as well as the law. dictate
such a course. and persons endowed with
public trust must not forget that they
are bound by every principle of honor to
discharge public affairs with the same
idelity as they would their own. But
aside from these considerations. we have
llready decided that the appellant was
md is the lawful incumbent, or de jure
officer, and in the absence of a lawful
without pay the right to hold
ne public office includes the right TO re-
Give the salary, which is an incident TO
he office itself. This is the settled rule