Pratt v. Board of Police and Fire Com'rs

• Decision Date: 14 June 1897
• Docket Number: 788
• Citation: 49 P. 747,15 Utah 1
• Court: Utah Supreme Court
• Parties: ARTHUR PRATT, APPELLANT, v. THE BOARD OF POLICE AND FIRE COMMISSIONERS

49 P. 747

15 Utah 1

ARTHUR PRATT, APPELLANT, v. THE BOARD OF POLICE AND FIRE COMMISSIONERS

No. 788

Supreme Court of Utah

June 14, 1897

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

Mandamus proceeding by Arthur Pratt against the board of police and fire commissioners. From a judgment for defendant, plaintiff appeals.

This is an action in mandamus to compel the respondents to reinstate the appellant to the office of chief of police of Salt Lake City, on the ground that he has been unlawfully removed therefrom. It is alleged in the affidavit, in substance, that on December 31, 1894, the appellant was appointed to the position of chief of police, to hold the same during good behavior; that he at once qualified, entered upon the duties of the office, and continued to discharge the same without interruption until, on December 7, 1896, the defendant board three members concurring, dismissed him from office, notified him to surrender control thereof, and excluded him from the management of the department; that at no time were any charges preferred or filed against him, nor any notice of charges given him, nor any opportunity afforded to be heard in his defense; and that, after being notified of his removal, he protested against it to the board, but that the board insisted in arbitrarily dismissing and excluding him from the office, and thereafter refused to recognize him as chief of police. The defendant board filed a demurrer and answer. The demurrer was overruled. In the answer, after making various denials, the board admitted that they dismissed the relator from office, and alleged that they appointed another person in his place, who had since discharged the duties of the office. At the hearing the court refused to hear or consider any evidence under the answer and found that the appellant was appointed chief of police as alleged in his affidavit, but adjudged that he was not entitled to the relief sought, and that the board had the power to dismiss him without notice, charges, or hearing.

Reversed and remanded.

Williams, Van Cott & Sutherland, for appellant.

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

The following authorities sustain the contention of the respondent that the removal of the former chief of police, the appellant in this case, was legal. State v. Board of Fire Com., 26 Ohio St. 24; Trimble v. People, 19 Colo. 187; People v. Martin, 19 Colo. 565; Keenan v. Perry, 24 Tex 253; State v. McGarry, 21 Wis. 502; Wilcox v. People, 90 Ill. 186; Stevenson v. Higgins, 15 Ill. 110; State of Hoboken v. Gear, 27 N. J. Law 255; People v. Whitlock, 92 N.Y. 101; State v. Doherty, 13 Am. Rep. 131; Wright v. Defrees, 8 Ind. 298; Patten v. Vaughen, 39 Ark. 211; Trainor v. Board of Auditors, 89 Mich. 162.

If an office is filled de facto, the writ of mandamus does not lie for the purpose of trying title to the office. People v. Olds, 3 Cal. 167; People v. Scannel, 7 Cal. 442; Turner v. Meloney, 13 Cal. 621; Satterlee v. San Francisco, 23 Cal. 320; Williams v. Clayton, 6 Utah 86; Meredith v. Board of Supervisors, 50 Cal. 433; Kelly v. Edwards, 69 Cal. 460; State v. Dunn, 12 Am. Dec. 28 n.; St. Louis County Court v. Sparks, 45 Am. Dec. 355; Matter of Gardner, 68 N.Y. 467, 468, 470; High on Extra. Legal Rem., secs. 49, 50, 77; 14 Enc. of Law 97 n.

BARTCH, J. ZANE, C. J., and MINER, J., concur.

OPINION

BARTCH, J. (after stating the facts):

The first material question which is presented for consideration is whether, under our laws, the board of police and fire commissioners have power to remove from office summarily, without charges, notice, and hearing, the chief of police. The respondent insists that under the Laws of 1896 he may be removed by the board either for cause, after a trial on charges, or by three concurring members thereof, whenever, in their judgment, the good of the service will be subserved thereby. The appellant was appointed pursuant to section 7 of the act approved March 8, 1894 (Sess. Laws 1894, p. 33), which, among other things, provides: "The chief of police, and chief engineer of the police and fire departments shall be appointed by the board of commissioners hereby created, and retain their positions during good behavior, except in the cases herein otherwise provided." Under this provision the appellant was entitled to hold his office during good behavior, which means for life, except in cases otherwise provided by statute, or unless he becomes guilty of such improper conduct as will justify a removal. That act was repealed by the act approved March 30, 1896 (Sess. Laws 1896, p. 219), and therefore the action of the board in the premises must be considered with reference to the later law, which was in force at the time of the amotion. The several provisions of the law of 1896 material in this case will be considered in the order in which they occur in the act. Section 1 (same as section 1 of the act of 1894) provides for the appointment of a board of police and fire commissioners, consisting of four members, only two of whom can be of the same political party. The design at the outset seems to be to remove, as nearly as may be, the management of the police and fire departments from political influences. Section 7 reads: "The chief and captain of police and chief engineer and assistant engineer of the fire departments shall be appointed by the board of commissioners hereby created, and shall retain their positions during good behavior except in cases herein otherwise provided." It will be noticed that, so far as the appointing power and tenure of office are concerned, this section is a re-enactment of the provision of the former law, above quoted. Here, as there, the tenure is during good behavior, except in cases where it is otherwise provided, and it remains to be seen, by reference to other provisions of the act, how such tenure may be affected. Section 8 makes it the duty of the board to supervise the police and fire departments in accordance with law, and to see that the officers and members faithfully discharge their duties. As may be observed, the first provision of the law respecting the power of removal is contained in section 10, which, on this subject, provides: "The board hereby created shall have the power and it shall be their duty at any time for good cause or when the good of the service will be subserved thereby, upon the concurrence of three members thereof, to suspend without pay or dismiss the chief or captain of police, the chief or assistant engineer, or any subordinate officer, member or employe of either department." It is insisted for the respondent that under the clause, "when the good of the service will be subserved thereby," the board have power summarily to remove any of the officers referred to in the provision. If this position be sound, then indeed what, under section 7, appears to be intended as a life tenure, becomes merely a tenure at will, for in such event the board, at its mere pleasure or caprice, arbitrarily, at any moment, and regardless of the public good, may remove an officer without cause, notice, or hearing, by simply stating that the good of the service would be subserved thereby. To further strengthen the position here assumed, it is contended that the portion of section 10 above quoted was intended by the legislature to take the place of section 14 of the act of 1894, and that it simply changed the number of members of the board necessary to effect a removal from four to three. Whether or not section 14 of that act, when considered with other provisions of the same act respecting the power of amotion, conferred such arbitrary power as is here claimed, it is not necessary for us to decide, but it is important to notice that the portion of that section which provides: "In such cases the removal shall be made by a notice to the officer, signed by all the members of the board, and it shall not be necessary to state any cause for such removal,"--has not been re-enacted in the law of 1896. If, in the former law, that provision was significant in conferring such power, then the omission in the later law must be equally significant as showing an intention to withhold such power. Aside from these considerations, however, there are yet other provisions of the act of 1896 which must be considered in determining the soundness of the position of the respondent, and the interpretation which ought to be given to the part of section 10 above referred to.

Section 11 reads: "Any citizen may prefer and file with the board a complaint and charges against the chief of either department, or any officer, member or employe thereof immediately upon the filing of such charges or of charges preferred by the chief of either department, the board shall suspend such officer or member complained of if he be not already under suspension and if in their judgment the charges warrant suspension, until the matter can be heard and investigated. The person complained of shall be entitled to ten days' notice in writing of the time and place of hearing, together with a copy of the charges. Upon the hearing the accused shall be tried by a full board, if he so desire, and he shall be entitled to be heard in his own defense, but in no case shall counsel be heard either for or against him, unless a majority of the board shall request it;" and then empowers the board to adopt rules governing the procedure at a hearing, to summon witnesses, and compel the production of documentary evidence. In case of refusal by any person to obey a subpoena or to testify when summoned, the board may refer the matter of such refusal to the district court. This section provides a complete system of procedure for any case where charges are preferred against the...