Silvey v. Boyle

• Decision Date: 01 July 1899
• Court: Utah Supreme Court
• Parties: WILLIAM D. SILVEY, RESPONDENT v. JOHN A. BOYLE, MAYOR OF OGDEN CITY, JOB PINGREE, JOHN JENKINS, J. E. WILLIAMS, MARTIN CULLEN, MYRTILLO SHAW, M. L. JONES, A. L. BREWER, E. T. WOOLEY, S. P. ASH AND F. E. BROWNING, MEMBERS OF THE CITY COUNCIL OF OGDEN CITY, APPELLANTS

57 P. 880

20 Utah 205

WILLIAM D. SILVEY, RESPONDENT v. JOHN A. BOYLE, MAYOR OF OGDEN CITY, JOB PINGREE, JOHN JENKINS, J. E. WILLIAMS, MARTIN CULLEN, MYRTILLO SHAW, M. L. JONES, A. L. BREWER, E. T. WOOLEY, S. P. ASH AND F. E. BROWNING, MEMBERS OF THE CITY COUNCIL OF OGDEN CITY, APPELLANTS

Supreme Court of Utah

July 1, 1899

Appeal from the Second District, Weber County; Hon. H. H. Rolapp Judge.

Application for a writ of mandate to compel the mayor and city council of Ogden City to make an appropriation out of the funds belonging to the city, for the purpose of paying a certain sum, which relator claims is due him on account of salary as captain of police. From a judgment ordering the issuance of the writ, defendants appealed.

Reversed and cause remanded.

Messrs Richards & Allison and Wm. H. Smith, for appellants.

Messrs Rogers & Johnson, for respondent.

BARTCH, C. J. MINER, J. and BASKIN, J., concurred.

OPINION

BARTCH, C. J.

This is an application for a writ of mandate to compel the mayor and city council of Ogden City to make an appropriation, out of the funds belonging to the city, for the purpose of paying a certain sum, which the relator claims was due him on account of salary as captain of police.

It appears from the record that the relator was appointed to the office of captain of police of Ogden City, under the Act of the Legislature, relating to "Police and Fire Departments," approved March 8th, 1894, Sess. Laws, p. 33. He discharged the duties of the office until February 15, 1898, when he was discharged, without charges having been preferred, or an opportunity given him to be heard, pursuant to an ordinance passed by the council, on January 31, approved by the mayor February 4, and published February 12, 1898, which the defendants claim abolished the office. That ordinance did not specify any day on which it was to take effect. On February 7, 1898, another ordinance was passed and approved, and was published on February 12, 1898, in which provision was again made for the office of captain of police. Thereupon, on February 11, 1898, one S. T. Whittaker was appointed to the office, and was recognized as such officer until May 10, 1898, when, pursuant to an ordinance passed May 2, 1898, which expressly abolished the office, he was also discharged. The relator claims the emoluments of the office from the time of his attempted removal to May 10, 1898, when the office was finally abrogated.

At the trial the court rendered judgment in favor of the relator, and ordered the writ to be issued. Thereupon the defendants appealed.

The only question presented and argued in the briefs of counsel, is: "Did the ordinance of January 31, 1898, work an abolition of the office of captain of police?"

As this question goes to the merits of the case, and, as its determination is likely to prevent further litigation between the parties, we will express an opinion upon it, although the record presents another question, not adverted to by counsel in their briefs, which, as will hereafter be seen, is fatal to this proceeding, and the issuance of the writ thereunder.

Respecting the question on the merits, we are of the opinion that it must be answered in the negative. Of course if it were shown that the office in question was abolished in good faith, by the enactment of the ordinance of January 31, the relator could not be heard to complain. The power which created it had the right to abolish it at any time, and where an office is abolished, 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, and, therefore, no charges, in such event, need be preferred. This court so held in Heath v. Salt Lake City , 16 Utah 374, 52 P. 602.

In the case at bar, however, it will be noticed that within a few days of the passage of the ordinance, which appellants claim abolished the office,...