Heath v. City of Salt Lake City

• Decision Date: 23 February 1898
• Docket Number: 885
• Citation: 16 Utah 374,52 P. 602
• Court: Utah Supreme Court
• Parties: HORACE A. HEATH, APPELLANT, v. SALT LAKE CITY, RESPONDENT

52 P. 602

16 Utah 374

HORACE A. HEATH, APPELLANT, v. SALT LAKE CITY, RESPONDENT

No. 885

Supreme Court of Utah

February 23, 1898

Appeal from the Third district court, Salt Lake county. A. N Cherry, judge.

Action by Horace A. Heath against Salt Lake City. Defendant had judgment, and plaintiff appeals.

Affirmed.

Moyle Zane & Costigan and J. H. Hurd, for appellant.

Police officers are state officers, and not officers of the city. Royce v. S. L. City (Utah), 49 P. 290; 1 Dill. Mun. Cor, Secs. 60, 210 and 975; 19 Am & Eng. Enc. Law, 562.

The mere fact that the legislature has provided that the members of the police department shall be paid by the city does not enlarge the powers of the city, in respect thereto, or authorize it to remove or dismiss any member, or abolish his office, for it is perfectly competent for the legislature itself to establish a police department for the city, and compel the city to pay the expenses thereof. 1 Dill. Mun Cor., Secs 60 and 245; Marquis v. City of Santa Ana, 103 Cal. 661; Throop on Pub. Officers, Sec. 355.

The city council has no power to remove an officer or abolish an office appointed or created by the legislature, unless such power be clearly conferred by the words of the act--it can never be implied. People v McAllister, 10 Utah 357; Throop Pub. Officers, supra; Marquis v. Santa Ana, supra; 1 Dill. Mun. Cor., Sec. 245; Gratopp v. Van Epps, 71 N.W. 1080.

The police and fire law gave no authority to remove plaintiff, or any of the other members of the police force, except for cause Pratt v. Board of P. & F. Com., 49 P. 747; Gilbert v. Board of P. & F. Com., 11 Utah 378; People v. McAllister, 10 Utah 357; Fitzgerald v. New Brunswick, 47 N J. Law 479; New Brunswick v. Fitzgerald, 48 Id. 457; State v. Trenton, 13 At. Rep. 238; Clark v. Cape May, 14 Id. 431.

If the power of the board to make a removal or to abrogate the offices in question be conceded, yet the steps taken were not an abrogation of the offices, or a removal of the plaintiff, or his assignors. Gregory v. Mayor, 113 N.Y. 416; Mehhem Pub. Officers, Sec. 453; State v. Jersey City, 25 N. J. Law 536.

Appellant further contends that the ordinance passed by the city council under the authority of sec. 4 of the act is void for uncertainty. 1 Dill. Mun. Cor., Sec. 96; Id. note, Sec 420, p. 487; Kearney v. Andrews (N. J), 2 Stock. 70; Black Const. Law, p. 441; State v. Clark, 27 A. 975; San Francisco Pioneer Woolen Factory v. Brickwell, 60 Cal. 166; State v. Zeigler, 32 N. J. L. 262; State v. Cainan, 94 N.C. 883; State v. Ocean Grove Camp Meeting Co., 35 A. 794; Melick v. Washington, 47 N. J. L. 254.

William McKay and D. B. Hempstead, for respondent.

This action was brought to recover $ 5,720, with interest, for salaries alleged to be due the plaintiff and seven other officers, who have assigned their claims to him. The court decided the case in favor of the defendant, and the plaintiff appealed. It appears from the record that for a long time prior to August 14, 1894, the plaintiff and his assignors were members of the police department of Salt Lake City, the whole force, as fixed by ordinance, at that time consisting of 49 men, including a captain of police. On that date the city council passed an ordinance fixing the number of the regular police force at not to exceed 41 men, and in pursuance of that ordinance, on the 29th of August, 1894, the chief of police suspended, without pay, the plaintiff and his assignors, the suspension to take effect on or after September 1st following, and continue until action was taken by the police and fire commissioners, and at the same time, notified each of them accordingly and also the board of police and fire commissioners. On the 8th of September following, that commission confirmed by motion, in open session, the action of the chief of police, and suspended them permanently. No persons have since been appointed to fill any of the places. The plaintiff and his assignors have, ever since their dismissal or suspension, been ready and willing, and have offered themselves, to perform the duties of the positions which they had occupied, and demand was made for the amount of their claims before the bringing of this action, which was commenced May 1, 1895, about eight months after their dismissal, or permanent suspension, by the board of police and fire commissioners.

BARTCH, J., delivered the opinion of the court. MINER, J., and McCARTY, District Judge, concur.

OPINION

BARTCH, J.

Counsel for the appellant insist that the law respecting police and fire departments gave no authority to remove the appellant, or any other member of the police force, from office, except for cause, and relies upon sections 7, 20, c. 37, p. 33, Sess. Laws 1894. Section 7, among other things, provides: "No officer or member of said departments shall be removed except for cause and after public hearing before said board upon charges made in writing;" and section 20 reads as follows: "Except in cases herein otherwise provided no officer or member of said fire or police departments shall be dismissed except for cause nor until after trial, and by an affirmative vote of three members of said board. The accused shall be furnished with a written copy of the charges against him at least ten days previous to the day of trial, and he shall have an opportunity to examine witnesses in his behalf and all witnesses shall be examined under oath and all trials shall be public." Evidently, under these provisions, no authority existed to dismiss or remove a member of the police department from office for the purpose of appointing another person to fill the vacancy, except for cause; and, in order to effect a removal it was necessary to file charges, and afford the accused an opportunity to be heard in his defense. This court so held in People v. McAllister, 10 Utah 357, 37 P. 578, where a similar statute was construed, and the process of removal held to be judicial in its nature. In that case it was observed: "It is not sufficient to say that cause exists. If the process of removal is judicial, it seems clear that the officer has a right to be heard in his defense, to face his accusers, and then, when he has had this privilege, and has accepted the opportunity, and been heard, or has refused such hearing, the council may, in the exercise of its discretion, remove him or not, as the evidence may warrant. It is demanded by the first principles of justice that no person shall be condemned without an opportunity to be heard, and this principle courts have no right to disregard, unless in obedience to the mandate of positive law." See also Gilbert v. Board, 11 Utah 378, 40 P. 264, and Pratt v. Board, 15 Utah 1, 49 P. 747.

The design of the statutory provision under consideration doubtless was to prevent persons appointed to public service in the police department from being removed summarily unjustly, and without any valid reason in law. The limitation upon the power of the board of police and fire commissioners in the removal of incumbents was imposed in the interest of the public, and was calculated to secure experience, and consequently more efficient service, by removing the officers as far as possible from the effects of political and other improper influences. Besides, it is but a matter of common justice to any public officer that no attack upon his name and fame shall be made without an opportunity to be heard. The arbitrary and summary removal of an incumbent to appoint another in his place is likely to draw public attention, and may give rise to implications of inability, infidelity, or dishonesty, which may seriously embarrass him in the pursuit of his usual avocation; and yet such implications might be wholly dispelled if charges were preferred, and an opportunity given for defense or explanation. Where, however, as is claimed by the respondent in this case, the office has been abolished by the power which created it, no such reasons exist. In such event, the presumption prevails that the services which the discharged officer was wont to perform are no longer required by the public, and no implication injurious to the incumbent can arise because of his dismissal, and no explanation or defense can avail him. Nor can it be assumed that an officer like those under consideration herein sustains a pecuniary injury because of the unexpected shortening of his term. It is true, by the abolishing of the office the incumbent loses the right to receive the perquisites which he would otherwise have been entitled to receive, but that risk he assumed when he accepted the office, which was not created for his benefit, but for that of the public, and therefore he cannot be heard to complain on that ground, because it must be presumed that he knew the law applicable to the office when he accepted it. Nor if, as is insisted in this case by the respondent, the office was lawfully abrogated by the city council, could the preferring of charges and the hearing of the incumbents in any manner affect the judgment or action of the commissioners. They were bound to act in obedience to the ordinance, if valid, and could not retain more members in the department than it permitted or directed. In such cases no other cause for removal than the abolishing of the office need exist, and the provisions of the statute above quoted do not apply. It is clear that they were intended to apply only to cases where the removal is sought unjustly, without cause personal to the incumbent, or arbitrarily, and without sufficient reason, to appoint another person to the office. In Phillips v. Mayor, etc., 88 N.Y. 245, speaking with reference to a provision of a statute similar to those above quoted, it was said: "The provision has no application to a case like...