Taylor v. Gunderson
| Decision Date | 27 December 1944 |
| Docket Number | 6762 |
| Citation | 107 Utah 437,154 P.2d 653 |
| Court | Utah Supreme Court |
| Parties | TAYLOR v. GUNDERSON, Mayor, et al |
Appeal from District Court, Seventh District, Sanpete County; J. A Hougaard, Judge.
Mandamus proceeding by Alma Taylor against John Gunderson, Mayor of Mount Pleasant City, and others, requiring defendants to reinstate petitioner as city marshal and authorize the payment of his salary. From an order requiring petitioner's reinstatement and ordering payment of back salary, the defendants appeal.
Reversed.
Judgment reversed.
Grant Macfarlane and Herbert F. Smart, both of Salt Lake City, John S. McAllister, of Mt. Pleasant, for appellants.
Lewis Larson, of Manti, for respondent.
WOLFE Chief Justice. McDONOUGH, WADE, (on grounds stated by LARSON J.), and TURNER, JJ., concur. LARSON, Justice, concurring.
Appeal from an order requiring reinstatement of Alma Taylor as City Marshal of Mount Pleasant City and ordering payment of back salary.
The respondent was appointed City Marshal of Mount Pleasant City, Utah, on January 20, 1942, and assumed that office March 1, 1942. A motion was passed in the City Council that respondent "be asked to read the electric light meters along with his other duties." Plaintiff refused to read the meters and on September 1, 1942, at a regular meeting of the City Council stated that if the Council insisted on his doing so he would resign, to take effect immediately. At this September meeting respondent started to take off his paraphernalia but on suggestion of Councilman Erickson that he "be not too hasty" and "look for himself a job" he put them on again.
A Council meeting was held on October 3, 1942, at which the Mayor and four members were present. There was then one vacancy in the Council. At this meeting it was moved by Councilman Pritchett that respondent "be relieved of his position of City Marshall and that Abe J. Burton be confirmed as City Marshal." Councilmen Erickson and Pritchett and Mayor Gunderson voted "aye" and Councilmen Young and Brotherson voted "no." The respondent thereupon removed his badge, gun, holster, and belt and turned them, together with the keys, handcuffs and other paraphernalia over to the Council and said "that means I am through," or according to Councilmen Young and Brotherson, "I guess that lets me out."
On April 2, 1943, respondent obtained an alternative writ of mandamus from the District Court requiring appellants to reinstate him and authorize payment of his salary as City Marshal or show cause why they did not do so. The trial ended in an order requiring reinstatement of petitioner and the defendants personally to pay the amount of the claimed salary. The court denied a motion to vacate the judgment and a motion for a new trial. The defendants brought this appeal.
Several grounds are urged for reversal. The appellant first contends the respondent was lawfully discharged. The respondent counters that he was not lawfully discharged because (a) the procedure for removal prescribed by Section 15-6-32, U. C. A. 1943, was not followed, and (b) that a removal, even in accordance with the procedure outlined in Section 15-6-32, must be for cause and that in this case there was no cause. We consider respondent's contentions in the order named. Section 15-6-32 provides:
"Except as otherwise provided by law, the term of office of all appointive officers in cities shall be until the municipal election next following their appointment, unless they are sooner removed by the board of commissioners of cities of the first and the second class, or in cities of the third class by the mayor with the concurrence of a majority of the members of the city council, or by the city council with the concurrence of the mayor."
It is admitted that Mount Pleasant City is a city of the third class and that the Council when filled consists of five members, Sec. 15-6-3, U. C. A. 1943. On October 3, 1942, there were four councilmen present. There was one vacancy. Under Sec. 15-6-20, U. C. A. 1943, this constituted a quorum. The minutes of the meeting of October 3, 1942, show that Councilman Pritchett made the motion that Taylor, respondent, be relieved of his position of City Marshal. The vote was two for and two against the motion--a tie vote. Under Section 15-6-24, U. C. A. 1943, there being a tie, the Mayor was entitled to cast a vote. He voted "aye." The motion to relieve respondent of his position as City Marshal therefore was carried by the Council. See McClain v. Church, 76 Utah 170, 289 P. 88. Having voted "aye" it was not necessary for him to vote again or otherwise indicate his concurrence. It transpires, therefore, that the proper procedure was followed under Section 15-6-32 to remove the respondent.
Appellants contend that no cause to remove respondent need be shown. This appears to be correct. The statutes are silent as to whether appointive officers of cities of the third class may be removed without cause. Where a statute is silent as to whether "cause" is or is not required as a condition of removal, the question depends on the intent of the legislature to be gathered from the provisions of the statute dealing with removal and all other related statutes which may throw light on the subject. See 99 A. L. R. 336 and especially page 349, et seq. There is great apparent confusion in the cases, some of which confusion might disappear if the nature of the tenure and other factors were examined in minutia. Several factors are given weight by the cases. For example, whether the term is definite or indefinite is a factor. See State ex rel. Hammond v. Maxfield et al., 103 Utah 1, at page 14, 132 P.2d 660, and cases collected in 99 A. L. R. 336, at 363 and 366. Also, when the appointee is to hold during good behavior the implication is that other than good behavior must be shown before he can be removed. Pratt v. Board of Police and Fire Commissioners, 15 Utah 1, 49 P. 747; annotation 99 A. L. R. 336 at 369. The annotator in 99 A. L. R. 336 at page 351 notes that:
Other courts have placed emphasis upon the nature of the duties to be performed by the official and whether in the scheme of things it would be necessary promptly to remove the official. See State ex rel. Barker v. Crandall, 269 Mo. 44, 190 S.W. 889. Other indicia of legislative intent are set forth in an exhaustive annotation in 99 A. L. R. 336, at 353, et seq. While the presence of a given factor such as a fixed term may be a strong indication of legislative intent, there is no unyielding rule. The whole inquiry is one of determining legislative intent.
By Chapter 107, Laws of Utah 1909, the legislature provided for the appointment of a City Marshal in cities of the third class. The statute in substance provided: In cities of the third class a city marshal and a city justice of the peace shall be appointed by the mayor, subject to confirmation by the city council, on or before the first Monday of February following a municipal election, whose terms of office shall be for two years, or until removed for cause. This remained in the statutes until 1933, when the legislature in the enactment of the Revised Statutes of Utah 1933, broke the section (Sec. 600, C. L. of Utah 1917) containing this provision down into Section 15-6-29 and 15-6-30, R. S. 1933 and in doing so, eliminated the words "or until removed for cause." Since the statute expressly required cause for removal, and subsequently was changed by the legislature so as to eliminate the words expressly requiring cause for removal, the indication...
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Ward v. Richfield City, 18431
...construed as the continuation of prior statutes so long as the provisions are the same or substantially the same. In Taylor v. Gunderson, 107 Utah 437, 154 P.2d 653 (1944) we held that a town marshall of a third-class city could be removed without cause. However, the statute then in force (......