The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1903-05-01

SONS, would sustain the contention of the
ns4end5nt, but there are others by which
y = lnliteos Under the provisioas ~
secuon ~ revised statute. the concur
renee OF a majority of tine members
tIected 10 the city council is necessary
60 the passage OF all or1If-ans.es. and an
propositions 70 create any liability
against the CITY
The state claims that the confirmation
or an appointment creates a liability
AGAINST the city, and requires the con
currence of a majority of the council
men. On the other hand the defendant
CONTENDS tnaL no liability IS created
thereby. It follows, from the provisions
Df section 202. that II any liability is Gre
ased against the city by the appointment
4 concurrence Of majority of the mem
bers composing the council is necessary-
nhe question hinges upon the meaning
% the word liability" as used in said
section Of the statute.
Court Defines the Word disability"
The second definition OF the word lila
blllty IL Blacks law dictionary IS, eN-
posed or subject 10 given contingency,
risk or casualty. which is more or less
IN Rapalie's law dictionary it is said
that liability Is the condition OF Deins
actually or potentially subject TO an opl-
Guiding every kind Of obligation, or, IN
8 more special sense. to denote lncnoaIe'
future. unascertained or imperfect oDu-
cations, as opposed to debts, The essence
Of which IS that they are ascertalneo
and certain.
Anderson's law dictionary defines a con
ttnEent liability to be "a liability Wilicn
IS not absolute. but depends upon an Hii-
CERTAIN event. as the liability OF an. en-
corser."
The liability Of an endorser- of a surety
IS contingent and not actual, until deIauiI
BY the Dayee OF principal.
In the case of Cochran and Sayre vs.
. s. 157 L. s. 2s6 296. the court said:
We know OF no definition of the WORD
liability either given IN the dictionaries
,yhich restricts IN Ia sucl. as are abso-
lutte or excludes the idea Of contingency
IN fact. II Is more frequently usec IN me
latter sense than IN the former, as when
We speak Of the liability Of an insurer OF
q common carrier or the iiaDlllLy 20 a.
cloents or 10 errors; and IN WeDstrI
dictionary the word liable is said TO retef
30 possible or probable happening
which may not actually occur; as horses
are liable TO slip; even the sagacious are
liable to make mistakes
Contingent Liability Created.
In Home Insurance. company vs.. P &
p. u. r. Co, rs H., 81 20, it is said lnat
the word Gtable) as used in the pohey
does not signify a perfected or fixed legal
liability. but rather a condltlon out oL
word as most frequently used, does not
necessarily exclude the idea OF cohtln-
Eency.
In view of the foregoing definition, it Is
clear that the confirmation by the city
council Of an appointment by the mayor
when the office has been previously ere
ated and the salary has been previously
liked creates a contingent liability, oe-
pendant only upon the future accepLanCe-
justification and dlscharge OF Jhe oulles
Of the office by the appointee, events
which. upon an appointment, were Aaple
20 occur. as was evidently anticipated oy
the civ council when the appointment
was made. This being so, IL required the
consent Of a majority Of the council 70
ant. This conclusion IS strengthened by
the provisions of section 2l5, revised
statutes in which II IS provided mat an
sppointive officer may be removed by the
MAYOR. with the concurrence of a msllorl-
~ of the members OF the city council, or
~ the city council, with the concurrence
e of the mayor. It is well settled that the
power to remove is incident to the power
T. apDofnt in the absence of scszsS pr
vision Jaw fixing the duration of me
office and the mode of removal . Am.
& Eng. Ency. Law. 435. and the numerous
cases there cited IN No. 10.
The duration Of the term of chief of pO-
lice is not fixed BY law
Confirmation Was Not Legal.
In view of the foregoing principles, it
IS a reasonable conclusion that the word
council was used in section "a in the
Same sense a in section 215 and that il
was intended that the concurrence OF the
came number of the cOunCilmen necessary
in removal by the mayor Is also neces-
saEy to both removal By the council
end an appointment by the mayor, for,
unless that force is given to the word
council the anomaly is presented Of the
legislature requiring a concurrence Of
majOrity to a removal by the mayor, and
a concurrence of a majority only Of
IS made BIZ it.
we are clearly Of the opinion that the
defendant has not been legally APP
pointed.
II is therefore ordered that the said
George A Sheets be. and ne Is hereby.
ousted from the office of chief Of police
OF salt Lake City. and that he hence
forth refrain from performing any of the
duties thereof, and that he pay the costs
In this behalf expended, taxed at
McCarthy's Qualified Concurrence.
AcCarty, J.-QUalified concurrence
4 concur in that portion Of the opinion
Weherein IL Is held that il requires a ma
1oPity OF al 1.-THE members elected to the
CITY council to confirm an .appOintee Of
TIE mayor. but dissent from that part
which bids that such confirmation ere
ales liability against the city.