The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-11-12

The state supreme court yesterday
handed down an important opinion
important to the city and important to
eight members of the police force who
were discharged. wrongfully it now ap-
pears, on May % last. and other men put
IN their places. The effect of the opin-
Ion, which was written by Justice
Bartch and concurred in by Chief JUS
tee Zane and Justice Miner, is that
members Of the police force can only
lie removed Tor cause; that the law in
regard to the men is the same in prac-
lice as that which applies to the chief
OF police, as defined by the supreme
court in the case of Chief Pratt VS.. the
city auditor, decided some six months
ago. The opinion holds that the eight
men, Thomas j. Everill, George r. Ra
leigh, William z. Carey, ]. A. Busby,
n: A Heath. r. l.. Shannon, Matt
Rhodes and f c. Wire must be rein
stated and are entitled TO their pay for
The six months since their discharge,
Which will amc mt to about $4,000. The
decision may also be applicable to some
members of the fire department who
were discharged.
Thomas EVerill. on behalf of himself
and the other seven officers similarly
situated, began suit, by his attorneys,
MeSsrs. Marshall, Royle & Hampstead
and Moyle, Zane & Costgan for a writ
OF mandate to compel the city auditor
to issue them warrants for their sala-
rieS. In the district court Judge Cherry
refused the writ, and from that ruling
the appeal was taken.
THE OPINION.
The full text of the opinion is as fol-
lows:
This was an application for writ of
mandamuS against respondent, the city
auditor Of Salt Lake City, to compel
him TO draw his warrant on the city
treasurer, III favor of the petitioner,
for a certain sum of money which, the
petitioner insists, is due him and sew
eral others. who have assigned their
. claims to him, for salaries as police
men of the city. The court refused to
issue the wrir or grant any relief.
Thereupon the petitioner appealed.
1t appears that these policemen We're
appointed to their offices prior to the
1St day of January, 1898, under the acts
of 1894, session laws page SO, chapter
81, and 1896, session laws page 21g,
chapter 73, which laws fixed the tenure
of their offices to be during good be-
havior. They qualified and entered
upon the discharge of their duties as
policemen, and continued to discharge
the same until May rs, 1898, when they
We're discharged from service, pursu-
ant to the confirmation, on the day
previous, by the city council, Of ap-
pointments of other persons in their
places, made by the mayor. Thereafter
they were not recognized as policemen,
although they have been ready and
willing to perform their duties as such.
So far as the record shows, these DO
licemen we're removed arbitrarily,
without cause. There is nothing to
show that they were dereIict in the
performance Of their duties, nor that
they were incompetent. No charges
were preferred, nor any opportunity
given them to be heard in their de-
Afense. The most important question
(Which arises, under these facts and
circumstances, is. was their discharge
- or removal from office lawful?
HOLD DURING GOOD BEHAVIOR.
Counsel for the appellant contend
that, notwithstanding the revised stat
utes which took effect Jan. l, 1895, the
policemen Of Salt Lake City are emit
tied to hold their offices during good
behavior. as provided in the act of 1894
and its amendment of 1896; that they
cannot be removed by the city author
tiles except for cause, upon charges
preferred, and after having had a hear
ing thereon, or an opportunity to be
heard; that, therefore, the action which
resulted in their summary discharge
was unlawful. and that they are still
entitled to hold their offices. discharge
the duties and receive the emoluments
thereof. Counsel rely on section 24S2
revised statutes, which reads: Ali
persons who, at the time when the said
appeal shall take effect, shall hold any
Office under the statutes hereby re-
pealed, shall continue to hold the same
Under the fnn1lra fhnrAOf those
offices which are abolished and those
as 10 which a different provision is
made by the revised statutes"
This section was considered with care
in the case of Pratt VS.. Swan, 50 Dac.
Rep. 1892. and that case is decisive of
all the material questions raised in this,
except the one whether policemen, in
cities OF the class to which Salt Lake
City belongs, are entitled, under the
existing laws. to hold their offices
during good behavior, which question
was not expressly passed upon in that
case, because not necessarily involved
in the issues, and as to all other ma
hterial questions raised herein, We refer
Ito that case for our opinion thereon.
Aftespecting the provisions Of the stat
J9te above quoted, we there said: This
section is, in its terms general and
applies to all public officers of the state
including the chief of police and other
the repeal took effect held office under
the old statutes, except those who held
offices which We're abolished or for
which a different provision was made.
In looking over the revised statutes.
we are unable to find any different pro-
vision respecting the Office of chief of
police, or such as could be considered
in lieu OF those concerning the Office
contained in the re-enactment of 1896
Nor have we been cited to any such
different provision. The same may be
said Of policemen generally of the cities
of the class to which Salt Lake CITY
belongs"
And, after reviewing the several sta
tutory provisions respecting the office
of chief of police and policemen, it was
further observed: Thus by diligent
examination of the several statutory
provisions, to which we have been cited
and of others noticed in our researches,
we have been unable to find any which
would warrant Us in saving that the
Office in question was abolished"
SANE AS THE PRATT CASE.
So, we may now say that, after furth-
er diligent examination of the several
statutory provisions respecting the Of
fee Of policemen. we have been unable
TO find any which has changed their
tenure of office, as fixed by the acts OF
1894 and 1896 and. therefore, the provi-
siOns of section 24S2, above quoted. that
persons therein referred to as holding
office shall continue to hold the same
under the tenure thereof" must. in the
- case of policemen, refer to the tenure
Of Office as fixed by those acts.
Counsel for the respondent, however,
cites US 10 CHAPTER Z, subd. g D. 2O6,
session laws. 1897, which reads: "All
appointive officers in said cities and