Hanchett v. Burbidge
| Decision Date | 28 November 1921 |
| Docket Number | 3724 |
| Citation | 59 Utah 127,202 P. 377 |
| Court | Utah Supreme Court |
| Parties | HANCHETT et al. v. BURBIDGE et al |
Original proceeding in mandamus by Lafayette Hanchett and others against Joseph E. Burbidge, and others. On demurrer to complaint.
DEMURRER SUSTAINED, and complaint dismissed.
H. L Mulliner and Wm. H. Bramel, both of Salt Lake City, for plaintiffs.
Wm. H Folland, City Atty., of Salt Lake City, for defendants.
OPINION
Plaintiffs seek, by mandamus proceedings brought in this court, to compel the chief of police and board of commissioners of Salt Lake City to act upon and obey an order issued by the civil service commission of Salt Lake City, reducing Riley M. Beckstead from the position of what is termed chief of detectives to the rank of first class patrolman or detective, as the chief of police may direct, and that the chief of police appoint an acting chief of detectives for a term not exceeding 30 days. This order was issued by the civil service commission and served upon the chief of police, Joseph E. Burbidge, and chief of detectives, Riley M. Beckstead, after a hearing had upon a written complaint made to the civil service commission by Dr. A. C. Wherry. The chief of police refused to obey the order issued to him by the commission.
Defendants have demurred to the complaint, and the questions raised by the demurrer, as stated by plaintiff, are these:
Paragraphs 3 and 4, above referred to, are:
The defendants state the issue thus:
"Is it the duty, enjoined by law, of the chief of police and board of commissioners to recognize and act upon the order removing Chief Beckstead from his position as chief, placing him in the department as a patrolman or detective, and to appoint a temporary successor?"
Unless otherwise provided by law, the power of appointment embraces the power of removal. In the course of the opinion in Skeen v. Browning, 32 Utah 164, 89 P. 642, the principle is stated as being:
"Moreover, it may be said to be an inherent right of the power that appoints--creates--the officer to also have the power to remove him, and, unless this power in some way is limited by some statutory provision, it, as a general rule, prevails."
It therefore becomes vital in this controversy to determine in whom lies the power of appointment of the officers and employes in the police department of Salt Lake City.
Upon this subject the statute repeatedly discloses the clarity of the legislative intent. Section 666 is the first section of chapter 13, Laws Utah 1921, the act providing for a civil service commission in cities of this state, and reads as follows:
"The head of each department shall, by and with the advice and consent of the board of city commissioners or city council, as the case may be, and subject to the rules and regulations of the civil service commission, appoint from the classified civil service list furnished by the civil service commission, all subordinate officers, employes, men or agents in said department, and in like manner fill all vacancies in the same."
The chief of police is declared by law to be the head of the police department. He and the city commissioners are the appointing power referred to in different places in the civil service commission act. With the advice and consent of the city commissioners, he appoints every subordinate in the police department. The only limitation, upon the chief of police and the city commissioners is that they must make the appointments from the classified civil service list furnished by the civil service commission.
Again, it is provided in section 666x7 of the act:
Again, section 666x8 is clear and specific in its provision that, when a position in the classified service is to be filled, the civil service commission shall certify to the appointing power the names of three times the number of persons necessary to fill such position. The appointing power referred to, as applied to the case at bar, is the chief of police, who is the head of the police department, and the names from the classified list are certified to him, in order that he may choose and appoint from among the names furnished.
It is thus obvious that all through the civil service act is manifested the clear intention of the Legislature that it is the chief of police, with the advice and consent of the city commissioners, who makes the appointments from the list furnished by the civil service commission, and that the civil service commission is never regarded as the appointing power. In one sense it is true, as argued by counsel for plaintiffs, that "the statutes give control over appointments into the hands of the plaintiff commission." Doubtless the plaintiff commission, in prescribing rules, holding examinations, and selecting from among the examined applicants those whose examinations are most satisfactory, controls the appointments, and that the civil service commission is thus the "power behind the throne," but at the last stage of the proceedings the chief of police and the city commissioners come upon the scene, and select from among the names furnished by the civil service commission the persons to be appointed.
Nothing in the act is indicative of any purpose to take the police and fire departments from the control of the city commission, and to take the right of appointment and removal from the heads of these departments The police department has not been transferred to the civil service commission. Section 666x12 of the civil service commission act provides that all persons in the classified service shall be subject to removal from office or employment by the head of the department for misconduct, incompetency, or failure to perform duties, or a failure to observe properly the rules of the department, and such removal is subject to appeal by the aggrieved party to the civil service commission, whose decision thereon becomes final and conclusive.
Nor are sweeping removals contemplated by the statute. Section 666x10 provides that all persons who, at the time that the law becomes effective, shall then be and shall have been continuously for at least one year next prior thereto in the employ of the police department, shall retain their employment, subject, however, to removal or suspension in accordance with law and the rules and regulations of the civil service commission. The effect of this section is that those in the service for one year or over may be removed for cause, but the removal must be in accordance with law and the rules of the civil service...
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State ex rel. Hammond v. Maxfield
... ... years; two, removal could only be made by the governor; ... three, such removal could only be for cause. In ... Hanchett v. Burbidge , 59 Utah 127, 202 P ... 377, 378, this Court said: ... "Unless ... otherwise provided by law, the power of appointment ... ...
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