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

lion 40. the powers s-llU QultCS Ol Olhtl
poles osscers are likewise defined and
prescribed.
AN ABSURDITY.
Thus it will be seen that in the revised
statutes there is ample provision TO create
and maintain a fire department In the
large cities. to create and maintain a
police force in the small cities, and &C
cording- to respondents theory, provisions
defining the powers and prescribing the
duties ot the chief of police, and other
police officers abrogated Is II not clear
that such . contention leads to an alb
surdity? Would the able counsel. VINO
argued this case, seriously undertake to
maintain that the legislature intended TO
protect the peace ana good order OF small
communities, TO guard against the ravages
of fire in large cities. and at the same
time to ignore their welfare and peace,
the lives. end property of the Dooulous
I cities leaving them TO the evil oroDen-
sites o. the criminal classes who are
wont to infest such cities?
! No such design can or will be imputed
to a coordinate branch of the govern
ment. Nor are there any circumstances
imputation. Again. why define the powers
and prescribe the duties of an officer
whose office has been abolished? Counsel
say. because the city council has power to
create the office by virtue of section "a
chapter 6, which provides: THE mayor,
by and with the advice and consent or
and agents as may be provided for by
law or ordinance, and, in like manner. Fl -
all vacancies among the same, except as
+ otherwise provided by law" This doubt
less was intended to confer power to ap-
point srch minor officers and agents
might become necessary from time to tir1e
! in the municipal government, and the ne
! cSssity for whose services might arise,
and the emergency which might call for
/ their appointment. the legislature owing
/ to the narrow limits of the human mind,
( were unable to foresee. Or il may be that
( this general provision was enacted. be-
cause of the impossibility of the legsla-
ture, entering into immensely of detail.
The provision il will be observed. leaves
the appointment of such officers and
agents discretionary with the mayor. He
may appoint or not as ne chooses. So,
the council may provide for appointment
or not. or confirm or not. as it chooses.
I Thus. if respondents contention be true.
officers of the most popuious cities in the
state, which but a few years ago, under
the most solemn judgment of the legisla-
tive branch of the government, were re-
garded as such grave Importance as to
impel the enactment of a statute whereby
tha monuments were appointed under life
tenure. so as 10 secure more efficient SER
vices by removing them as far as pos
sible from political and other improper
influences. have now come to be regarded
by the same branch of the government to
be OF so little Importance as TO permit
the creation and continuance OF the
Office and the appointment of the in
cumbents to stand on mere implication
and be subject to the mere pleasure,
Whim or patisan zeal of a mayor or
CITY tOutiClt III OlHtT words the le2itl-
mate result of the insistanca is that the
legislature intended by the revision and
repeal TO commit the peace and welfare
the protection of lives and property of
the largest communities in the state to
mere discretion of the mayor and council
acting jointly. and either one having the
power to defeat thu wiz of the other and
this, toe. in the face of the fact that for
comparatively small communities, the
same legislature made ample provision for
peace officers. Could an interpr tat ton of
lnh fst-Ha srfa
such results. and impute such intention,
be regarded as warranted, or reasonable,
especially when the real object of the
revision is considered?
PRINCIPLES OF CONSTRUCTION.
An application of the principles of con-
Structlon herelnbefOre considered forbids
the imDutation that the legislature de-
signed such consequences. From time i'm
memorial peace officers have been recog-
nized as 4 necessity in civilized communi-
ties. In the anonymous case lease 459f
i Mod. 30. the court said: The late con-
stable is not discharged till the new be
out an officer
II is true. under section 2O6. subdivision
30. the city council has discretionary
power Ito create any Office that NAV he
deemed necessary for the good govern
ment Of the city" but this is a rem araI
provision which applies to all cities. as
Wen 10 those where an express power is
conferred in the revision to create police
force. as to those where no such power is
given. and what has been said respecting
sectlon ia. applies. in the main. with
equal force to this subdivision The fact
that city council, in the absence of anv
other provision of law has discretionarv
power under section PA and subdivision S6
70 create and nil necessary Offices does
not show an intention on the part Of the
legislature to abolish the office of chief
OF police, even though that Office mighS
also be created. and an incumbent ap-
pointed by virtue of these provisions Sec
ton 81. chapter 70. shows an intention to
continue important municipal offices. as
wei as the incumbent therein after tho
taking effect of the revised statutes Nor
does sections 1S5, 19S or 2l5 initiate against
such intention
several statutory provisions. to which we
have been cited. and of others noticed in
our researches, We have been unable 10
ind any which would warrant us in saw
ing that the office in question was
abolished.
A MANIFEST CONFLICT.
The broad terms of the repealing stat
ute when construed in the light of the
circumstances which surrounded the
enactment are manifestly in conflict with
the spirit and purpose OF the legislature
as shown in the revision. respecting the
ONCE of chief of police in cities of the
first class. That statute is subject to the
same rules OF construction as other
enactments. and the intent must prevail
over the literal sense of its terms. While
in terms it repealed the great mass of
STATUTE ldHSs ana, buried among them
was the act OF 1896. SIN there was no an
precia bic instant of time between the re-
peal and the re-enactment when the re-
peal could be in force. Therefore in effect
and operation 1t must be limited to such
provisions only as The legislature by the
revision and repeal intended 10 abro-
gate.
In state VS.. Moorhouse. 5 n. Oak 40e
in case in many respects similar to the
one at bar. There. as here. the contro-
versy arose over the revised statutes and .
Repeating act. 1t appears the main Gues- /
ton was whether the office of district as /
SCISSOR. which had been created by stat /
ute prior TO the revision. and an incum- /
bent appointed was continued i'm exist
ence after the revision had taken effect. I
Mr.. Justice Corliss. delivering the opin- /
ion OF the court, said: 1T is too plain .
for argument that one of the great pur-
poses OF the legislation was to provide
for the assessment of property through .
out the entire state. To give effect to
that purpose, we must limit the broad /
viii not defeat such purpose. Not having
made provision in the new revenue law
for the office of district assessor. and vet
having clearly eVinced a purpose that
property in such territory should be as
sessed. and having in terms referred to
that office and the district over which the
jurisdiction of a district assessor extend
ed. it does not admit of doubt that it
was never intended by the legislature
that those provisions of chapter 1872 relat-
ing to the office of district assessor, etc,
should be repealed.
WAS NOT ABOLISHED.
From the foregoing considera lions. we
are of the opinion that the office In qUes-
ton was not abolished but continued in
existence under the revision. and that the
appellant. not having been removed, is /
entitled to hold the same. as provided in |
section 2.4S2 of the revised statutes
The conclusion thus reached is In ac-
with the general principle of