The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-11-29
Ogden, Nov. %.
OGDEN'S POLICE DEPARTMENT
COMPLICATIONS RE
VEALED BY COURT DECISION.
Captain Silvey Illegally Displaced
In February, But Office Legally
Abolished In May.

further ENHANCEMENT was revealed
Ogden police department yesterday,
when Judge RoIapp handed down his
decision in the case of w. D. Silvev
against the MAYOR and city council.
The court granted writ of mandate
declaring in effect that Silvey was cap
tain of police until that office was ex-
pressly abolished by ordinance, on May
10 last. Silvey was relieved from duty
on Feb. Is. A summary of the courts
decision shows:
Dec. Is, 1894, the board of fire and po-
lice commissioners of ogden City duly
appointed the petitioner captain of po-
| lice; he performed such duties until
Feb. 15, 1898; that on Jan. 81 1898. the
city council passed an ordinance de-
claring what appointive officers should
exist in the city, emitting to name a
captain of police, and further provided
that the mayor, on or about the first
Monday of February, 1885, and BIZ
ennially thereafter, should, by and with
the advice and consent of the City coun-
ell, appoint the persons to fill such OIL
ces. The ordinance also defined the
terms of Office of these persons, and re-
pealed all other ordinances creating
other appointive offices, or conflicting
with this ordinance. Such ordinance
was approved by the Mayor Feb 4, 1898,
! and published Feb. II, 1898. On Feb. z,
| 1898, the city council passed another or
dinance, creating and organizing the
! police and fire department of Ogden
! City, and named the officers comprising
| the same, among whom was a captain
/ of police. This ordinance also repealed
/ all other ordinances in conflict with it,
/ and was approved by the mayor Feb Z,
e
vided when they should take effect,
and therefore took effect twenty days
after publication, which would be
| March s. 1898. On Feb. II, 1898, the
mayor appointed S. T. Whitaker to the
office of captain of police which ap-
! pointment was confirmed by the city
council on the same day; and on Feb.
! is, Whitaker qualified and entered up
on the discharge of his duties, SUPER
seding the petitioner. On May 2, 1888,
the city council passed an ordinance
/ abolishing in express terms the Office
of captain of police. which ordinance
was duly approved by the mayor, and
became effective May 10, 1898. On June
| 10, 1898, Silvey commenced this ac-
ton.
The court quotes extensively from the
decision of the state supreme court in
| the cases of Pratt VS.. Swan and Of Ev-
! erill VS.. Swan, which upheld the con-
| tention that police officers are not
merely municipal officers, but are in a
! legal sense, servants of the state, and
/ that their tenure of office could not be
disturbed by the city council unless
provision We're made for the same by
revised statutes of 1885, In those stat
utes there was a provision giving the
council power lin its discretion to abol-
ish the office of captain This provi-
| sion, Judge Rolapp holds, dispenses
with the claim Of Silvey that his tenure
of office still holds good, since the coun-
Gil and mayor exercised that power by
ordinance effective May 10.
The decision of Judge Rolapp would
therefore seem to be a bar not only to
Silvey, but to Whitaker, or any other
party.
The judge says: 'And, therefore,
while l think that the city council had
a legal right to abolish the office, 1 also
am of the opinion that the mere crea-
ton of a different Office, or the crea-
ton of a department within the city
consisting of Offices the incumbents of
which are to perform similar duties to
those engaged in by the persons holding
an Office claimed to have been inten-
tionally omitted from the list, does not
! abolish such omitted office. 1t required
express and unmistakable action on the
part of the city council to accomplish
such performance That action was
not taken until may 10, 1898, and, con-
sequently, the petitioner was entitled
to perform the duties of his Office and
to receive the emoluments thereof until
that date.
For the foregoing reasons, judgment
must be for petitioner, making the writ
peremptory, and directing the mayor
and city council to make a sufficient
appropriation to cover the petitioner S
salary from Feb. Is, 1898, up to and in
GLIDING May 10, 1898, and for his costs. -
The effect Of the decision on the sta
tus of other claimants to positions or
the force was much discussed yester-
day. The prevailing view was that the
old patrolmen would have to be rein
stated just as they were in Salt Lake
The difference in the two cases is that
the ogden city council abolished the
Offices of all patrolmen but three an6
subsequently appointed Patrolmer
Farr, Cooney and Shaw special police
men.
Sullivan and Meisner already have
suits pending in which the claim is SCI
up that they are being deprived of theil
rights by an apparent evasion of the
law.