Gilbert v. Board of Police & Fire Commissioners of Salt Lake City

• Decision Date: 27 April 1895
• Docket Number: 562
• Court: Utah Supreme Court
• Parties: IN THE MATTER OF THE APPLICATION OF WILLIAM GILBERT FOR WRIT OF CERTIORARI, RESPONDENT, v. THE BOARD OF POLICE AND FIRE COMMISSIONERS OF SALT LAKE CITY, APPELLANT

40 P. 264

11 Utah 378

IN THE MATTER OF THE APPLICATION OF WILLIAM GILBERT FOR WRIT OF CERTIORARI, RESPONDENT, v. THE BOARD OF POLICE AND FIRE COMMISSIONERS OF SALT LAKE CITY, APPELLANT

No. 562

Supreme Court of Utah

April 27, 1895

APPEAL form the District Court of the Third Judicial District. Hon Samuel A. Merritt, Judge.

In the matter of the application of William Gilbert for a writ of certiorari to review the action of the board of police and fire commissioners of Salt Lake City in discharging relator from the fire department. From the judgment of the district court for relator, the board appeals.

Affirmed.

Mr. E D. Hoge, City Attorney, and Mr. W. G. Van Horne, Assistant City Attorney, for appellant.

"A copy of the judgment signed by the clerk, entered upon or attached to the writ and return, constitute the judgment roll." Comp. Laws, 1888, vol. 2, § 3728. Consequently the petition which put the court in motion and formed the basis for the writ, while sent up in this record has no place in the same and should not be considered by this court. Reynolds v. San Joaquin Co., 47 Cal 604; Garretson v. Supervisors, 61 Cal. 54. A writ of certiorari brings up for review only the question whether the inferior officer, court or tribunal has exceeded its jurisdiction and cannot be used as a mere writ of error for the correction of mistakes, either in law or fact, committed by the inferior tribunal within the limits of its jurisdiction. C. P. R. R. Co. v. Board Equal., 46 Cal. 670. But suppose we are mistaken in all this, and the court had the right to look into the testimony, as claimed by the plaintiff or respondent, we claim that there was testimony before the board to justify the action of the board, and the court had no legal power to say the weight of the testimony was against the action taken, or that the board received other than legitimate testimony, as all the authorities hold that mistakes in law or of fact cannot be corrected by this writ. C. P. R. R. Co. v. Board Equal. supra.

The act, when taken as an entirely, was intended to improve and make more efficient the police and fire departments, and increase their usefulness, which will be defeated by the construction claimed by the plaintiff in these cases, and in fact have the tendency to retain men in the departments who may be entirely unfit for the position, simply because they were on the force when the act was passed. There is a proposition of law involved in this case which we think is conclusive against the plaintiff and settles the whole matter in favor of the board. Certiorari is not the remedy, even when "there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy at law," unless the board was exercising judicial functions, which we claim it was not. It was claimed below that in this matter, the board was acting judicially. If this be true, the act of the legislature conferring judicial functions is void, being in conflict with the provisions of section 9 of the organic act, which provides that the judicial power of said territory shall be vested in a supreme court, district courts, probate courts and in justices of the peace. On this point, we cite and call attention of the court to the case of Ferry v. King, 26 P. 537-8.

Mr. O. W. Powers and Mr. D. N. Straup, for respondent.

The term "judicial functions" is not always to be received in the sense usually applied to courts of justice. Judge Bronson, in Supervisors v. Briggs, 2 Denio, 26, speaks of the settlement and allowance of an account by the board, as an adjudication of the matter by a proper tribunal, and therefore conclusive. See, also 9 Wend. 508; Gillespie v. Broas, 23 Barb. 370; People v. Mayor of New York, 5 Barb. 45; People v. Supervisors, El Dorado Co., 8 Cal. 58; Robinson v. Supervisors, Sacramento Co., 16 Cal. 209-213. In California, under a statute word for word like ours, it was held that the superior courts have power to review on certiorari the action of a board of supervisors in such a matter as granting a ferry license. Murray v. Supervisors, Mariposa Co., 43 Cal. 495; Waugh v. Chauncey, 13 Cal. 11; Fall v. Paine, 23 Cal. 303. It was also held that the writ may be used to restrain the excessive judicial acts of municipal boards generally. People v. Supervisors, 8 Cal. 59; S. v. W. W. v. Bryant, 52 Cal. 132; Maxwell v. Supervisors, 53 Cal. 389; Miller v. Supervisors, 25 Cal. 96. Our writ of review is broader than the common-law writ of certiorari. Farmington v. Commissioners, 112 Mass. 206; Lidd. Practice, 397. Under it, in determining whether the board exceeded its jurisdiction, the court may examine the evidence. Not to determine whether the probabilities preponderate one way or the other, but simply to determine whether the evidence is such as will justify the finding as a legitimate inference from the facts proved, whether that inference would or would not have been drawn by the superior tribunal. Jackson v. People, 9 Mich. 111; Ex parte Madesire, etc., 62 Ala. 93; Camden v. Block, 65 Ala. 236; Ransom v. McIlvine, 49 Mich. 194; Hyde v. Nelson, 11 Mich. 357; People v. Police Board, 72 N.Y. 415; Moreland v. Whitford, 54 Wis. 150; Berry v. Lowe, 10 Mich. 9.

It is now the settled law, that on certiorari the reviewing court is not confined to the mere question of jurisdiction of the person and the subject matter, but it will look into the proceedings and if the adjudication is unsupported by any evidence it will be reversed. People v. Board of Metropolitan Police, 39 N.Y. 506; People ex rel Smith, 45 N.Y. 777. Formerly it was held that the revisory court on certiorari could only inquire as to the jurisdiction of the inferior tribunal, but the better opinion now is, that errors of law affecting the merits of the case occurring in the course of the proceedings may be reviewed. McAlliday v. Horton, 75 Ala. 491; Donahue v. Will Co., 100 Ill. 94; Hyslop v. Finch, 99 Ill. 171; State v. Dodge Co., 56 Wis. 79; People v. Assessor, 39 N.Y. 81; People v. Assessors, 40 N.Y. 154; People v. Allen, N.Y. 538; Menden v. Commissioners, 5 Allen, 13; Farmington v. Commissioners, supra; Teuksbury v. Commissioners, 117 Mass. 717; Milwaukee Iron Co. v. Schable, 29 Wis. 447; St. Paul v. Marvin, 16 Minn. 91; People v. Betts, 55 N.Y. 600. And this is the holding of the courts with reference to the common law writ. The statutory writ is a more flexible remedy. Washington v. Parker, 60 Ala. 447; Cooley on Taxation, 757.

It has been held that even where the inferior tribunal is given the power to finally hear and determine a cause, the superior court may revise its proceedings on certiorari. People v. Turner, 1 Cal. 152; Rex v. Morley, 2 Burr. 1040; 2 Hanks, P. C. 286. Certiorari lies to review the proceedings of inferior tribunals invested with the power of hearing and deciding election cases. Whitney v. Board of Delegates, 14 Cal. 480; State v. Marlow, 15 Ohio Stat. 114; Com. v. Leech, 44 Pa. St. 332; Gibbons v. Shepherd, 65 Pa. St. 20; Chenowith v. Commissioners, 26 W.Va. 230; State v. Cockrell, 2 Rich. (S. C.) 6; 1 Dillon Mun. Cor. (3 ed.) 232. In determining the question of the jurisdiction and power of the court on a writ of certiorari, three essential features are to be considered. First. Whether the board acted within its jurisdiction. Second. Whether it acted according to law. Third. Whether it made its determination of the facts upon any evidence which would warrant it. State v. Whitford, 54 Wis. 150. In People v. The Board of Police, 39 N.Y. 521, the question was before the court of appeals, of New York, as to whether the police board, with powers and duties almost identical with ours was a court, and Judge Woodruff said: "Is that board a court, * * *. Both questions must, I think, be answered in the negative." Such was also the decision in Caldwell's Case, 13 Abb. 405; People v. Overseers, 6 How. 25; People v. Heath, 20 How. 304.

BARTCH, J. SMITH and KING, JJ., concur.

OPINION

BARTCH, J.:

The relator in this case was a member of the fire department in Salt Lake City, and his contention is that he was wrongfully removed from his position in that department by the board of police and fire commissioners on the 11th day of August 1894. It appears from the record that he held the position for a period exceeding three years immediately prior to his removal; that the said board claimed the right to remove him under and by virtue of chapter 37, Sess. Laws 1894, and, in case he desired to be reappointed, to compel him to undergo a competitive examination, as therein provided, in the same manner as applicants who were not members of said department at the time of the enactment of said chapter; that the appellant acknowledged that the relator was an efficient officer of long service; that the charges preferred against him as grounds for removal were that he was under the minimum height, had defective eyesight, and was over the maximum age; that a hearing was had on these charges after he had been suspended from service, but the appellant introduced no evidence to sustain them; that at such hearing the burden of proof was cast upon the relator to show that there was not sufficient ground for his removal; and that the charges were sustained, and the relator dismissed from service. After the relator was thus removed, he applied to the district court for a writ of certiorari commanding the appellant to certify and return to the clerk of said court all the proceedings concerning his suspension, dismissal, and discharge. At the hearing of the petition, after the return made in obedience to the writ, the court entered judgment that the decision of the board suspending and dismissing the relator from service be set aside, and declared the same to be of no force and effect. From this...