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

same provision may also be found in
the revised statutes, section SSS, and,
although not cited in the Pratt case,
still our recollection is that we consid-
cred it and were of the opinion that 1t
had no application to the police force,
and upon further consideration in this
case we perceive no reason to change
our former opinion Police officers are
not mere servants of the municipal cor
poration. They were appointed under
the laws of the state, by a board Great
ed for that purpose, to perform public
service. While the jurisdiction of such
officers is limited by certain boundaries
their service is not alone of local or
corporate interest, but is important to
the state at large as well, for the state
has an interest in the peace and good
order of each of its component parts.
The duties which have been imposed
upon them, by the laws of the state,
they are bound to perform, independ-
emily of the corporation, such duties
being of public nature. The fact that
the appointment of such officers was
devolved upon the city, or upon a
board, by the legislature, does not de-
prive them of the character of public
servants Their appointment was so
to exercise the function Of government
They are not, therefore, to be regarded
as the mere agents or servants of the
municipality, but as public or state Of
ficers. This court SO held in Royce v.
Salt Lake City, 10 Utah, 401.
2 Dillon on Nun. Corp, secs. 974, 975.
Caldwell V. the city of Boone, 81 Ia,
6S7.
DOES NOT APPLY.
"They being such officers. the sub
division in question does not apply to
them. It doubtless was intended to
apply only to officers who are merely
the servants or agents Of the munich
pal corporation. It contains no express
words which would make it applicable
TO policemen in cities of the first class,
ana we are not inclined to aid the ar
bitrary power, here contended for, hy
judicial construction, and held that it
exists by implication. We have no desire
to extend that provision of the statute
to public officers who do not come
clearly within its terms, because it
eonfers a power susceptible of being
exercised to the injury of the public
service. The power granted under that
subdivision is in its nature arbitrary
and despotic and is contrary to chat
principle of natural justice which sclys
that no person shall be condemned I'M
heard. or without having had an OPP
portunity to be heard, and that prin-
ciple courts will never disregard, eX-
cept under the mandate of positive law.
When a public officer is rightfully in
office justice demands that no attack
shall be made upon his name and fame,
by removal, without an opportunity to
be heard in his defense, upon charges
preferred.
People V. McAllister, 10 Utah. 357.
THAT the views herein expressed re-
specting the tenure of office of police
men accord with the intention of the
Legislature, seems also clear, from an
examination of the journals of that
body for 1897
Referring to the journal of the house
of representatives, page 460, we find an
entry, as follows:
II. B. No. 1873, An Act in Relation
to Police and Fire Departments of
Cities of 1900 or More Inhabitants,
and Providing for the Support and
Control of Departments, and Repeating
Chapter 73 of the Laws of Utah, 1886,
was then passed by the following vote:
Ayes, 80; noes, 3; absent and not vot-
ing, g." See also page 303.
So reference to the senate journal,
page 400, shows this entry:
Report of Committee. Committee
Room, March IL, 1897:
'Mr. President-Your committee on
counties and municipal corporations,
to whom was referred house substitute
for S. 3. No. 49, An Act in Relation
to the Police and Fire Departments of
Cities of $4,000 or More Inhabitants. and
Providing for the Support and Control
of Such Departments, and Repeating
Chapter - of the Laws of Utah, 1896,
respectfully report that they have had
the same under consideration and rec
ommend that the act be passed.
81 robson, Chairman.
1.-THE report was adopted and the bill
fled for first reading. The rules We're
suspended, the bill read first, second
and third times, and failed to pass
Then follows a record of the ballot,
by which the substitute, H. B. No. 49,
for S. B. No. SO, was defeated.
From these entries it may be seen
that the bills introduced for the pur-
pose Of enacting a fire and police law,
| and to repeal the act of 1885, which is
a re-enactment and amendment of the
act of 1894, failed to pass.
THE REMOVAL ILLEGAL.
An examination of the meas = which
thus failed of passage viii 5 v that
1t provided for complete police and fire
departments, and an examination of
the revised statutes, as shown in the
case OF EfaIL Y swan, supra. reveals
the fact that the same legislature
which defeated that measure. made
ample provision in the revised sta
tutes to create and maintain a fire de-
partment in cities Of more than L, OOC
inhabitants, and to create and main
tain police department in cities OF
less size, and in those provisions We're
/ included the tenure of office. Nowhere
! in the revised statutes, however. dc
we find similar provisions respecting
police departments and tenure of office
in cities of the first class. 1t is, there
fore, fair to assume that it was the
/ intention Of the legislature to continue
/ the offices of policemen in the large
cities under the tenure as provided in
/ the act of 1896.
We conclude that the petitioner and
| his assignors, under the existing laws
are entitled to hold their offices until
! lawfully removed for cause, and thai
J the mayor and city council, having at
tempted to remove them from office
( without cause, their action was unlaw-
/ full and void. The officers, not having
/ been lawfully removed, it was the dutT
| of the respondent to draw his warrant
/ for their salaries, upon proper demand
therefor, and the court erred in NOT
! issuing the writ of mandate to compel
! him to do so.
The cause must, therefore. be re-
versed, with costs, and remanded. with
! directions to the court below to Issue
! the writ.