Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1898-03-24

an Incumbent, without a hearing or an
| opportunity to be heagd as provided by
! law; and now, after such an unwar-
ranted and remarkable proceeding, In
direct opposition to the plain provisions
| OF the statute and to judicial inter-
| probation, this court is asked to declare
| In solemn judgment, that the lncum-
| bent. thus denied q hearing, SO fnr u.s.
the record shows, is not entitled to the
| emoluments Of the office uuiug the
time of his suspension.
Upon what ground, IL may be asked,
| shall No 80 declare2 The record an
| swers because the board and Mayor
have failed 10 perform their duty under
the law respecting the charges.
This proceeding was a manifest viO-
lation of the very letter and spirit Of
the statute. To hold that, under the
circumstances OF this case the incun-
bent Of "A public Office had forfeited his
right to the emoluments of the Office.
would be a menace to good government.
bcnuse 1t would enable the suspendlng
power to be exercised from mere Ill
VIII, caprice, or other improper mo-
tive, regardless Of the public veal
Competent persons would doubtless
be lOath To enter the public service.
under such a condition of affairs. IL
their salaries could be forfeited and
their regulations attacked for an in
definite period, by mere suspension
without an opportunity to be heard.
No such power win be aided by judicial
construction. 1t savOrs too much of des-
potism and injustice, and Will not be
cpuntcnanced, except upon the man
date of positive law.
Whether the suspension In the first
Instance was merited we have no
means of knowing, and because of the
total failure of the suspending power to
provide for hearing, we would not be
justified in assuming that II was so
In the performance of his duty. or was
guilty of improper conduct he ought
to have been suspended. and the his
case properly heard, and n upon the
hearing 1t had been hscertained that
the charges We're sufficient and sus-
tanned. he ought to have been as
promptly removed, or suspended with
out pay, as the evidence might have
warranted. In such event forfeiture OF
salary, could not have been questioned.
Plain business principles as wen as the
law dictate such n 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 fidelity as they would
their own.
But aside from these considerations,
we have already decided that the APP
pellant was and IL the lawful incum-
bent. or de jure officer. and In the ah-
sence of a lawful suspension without
pay, the right to hold the public Office
includes the right to receive the salary
which is an incident to the office IT.
self, This Is the settled rule in this
State"
The court then gives It as its opin-
ion that Judge Cherry erred In sus-
tanning the demurrer and Diminishing
the petition and therefore orders n re-
versul OF the case and the issuance OF
the writ.
The opinion Is delivered by Justice
Bartch. concurred In by Chief Justice
Zane and Justice Miner.
STATUS OF THE CASE.
The city has twenty days within
which to petition the Supreme Court
for a re-hearing of the case. II at the
end Of that time no petition Is pre-
scented or granted, a remittltur will be
sent down from the clerk of the SUI
preme Court to the district court and
the writ OF mandate will then issue to
Auditor Swan compelling him to issue
Pratt warrant for the salary from
August 81, 1897, to February l, 1898,
amounting to $3.50.
Mr.. Pratt being chief and entitled to
the emolumnets will undoubtedly as
sumo the office at the earliest posi-
bile day.