10 Utah 357 | Utah | 1894
This is an action in the nature of quo warranto, brought under chapter o, 1 Comp. Laws Utah 1888, p. 337, to test the right of the respondent to hold the office of inspector of provisions for Salt Lake City, and to discharge the duties and receive the emoluments thereof. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. After arguments of counsel the demurrer was sustained, and, the plaintiff electing to stand by his complaint, judgment was entered in favor of the defendant. From this judgment the plaintiff appealed, assigning as error the sustaining of the demurrer and the entering of judgment for the defendant. Among other facts stated in the complaint, it appears that on the 18th day of November, 1892, the appellant, Alma S. Kendall, was appointed to the office of inspector of provisions in and for Salt Lake City. Pursuant to his appointment he qualified, was duly commissioned, and then entered upon the discharge of the duties of his office, and ever since has held the same and performed the duties thereof. It further appears that on the 24th day of November, 1893, while the appellant was performing the duties of such inspector, Hon. E. N. Baskin, as mayor of Salt Lake City, submitted to the city council a writing which reads as follows:
“From the mayor. Gentlemen: I hereby appoint Mr. A. C. Young to the office of inspector of provisions for the city, in place of A. S. Kendall, who is hereby removed, and submit the appointment to you for confirmation. Respectfully, E. N. Baskin, mayor. ”
The first question presented is whether the mayor of Salt Lake City has the power to remove an appointive officer. The statute law for appointment and removal of city officers in Salt Lake City, so far as material and applicable to this question, is as follows: “ There shall be appointed * * * inspectors * * * and such other officers and agents as the city council may from time to time direct and appoint.” Comp. Laws TJtah 1888, p. 339, § 312. Section 313 provides: “Every person elected or appointed to any office under the provisions of this act, may be removed from such office by a
These several sections are found in the charter of Salt Lake City, and at the time of the passage of the general act providing for the incorporation of cities, approved March 8, 1888, they comprised the *law relating to the appointment and removal of city officers'. Sections 312 and 356, above quoted, confer upon the city council the power to appoint certain city officers, inclnding an inspector
While, subsequent to the passage of the act of 1884, there were various amendments made to the charter, yet it will be observed, upon examination of the amendments, that there was no further material change made in the power of apjDointment and removal of officers until the passage of the act approved February 27, 1892. It is evident from the history of legislation upon the subject under consideration that, until the passage of the act of 1892, it was always the intention and policy of the legislature to vest the appointment and removal of officers in Salt Lake City in the city council. The only departure appears to be the act of 1884, and this is limited to police. The law of 1892, in some respects, made material changes in the
It is insisted by counsel for respondent, that the power of appointment thus conferred upon the mayor necessarily carries with it, as incidental thereto, the power to remove, and that it is a continuing power, which may be exercised at the pleasure of the mayor. The legislative authority is not questioned in this case, and assuming, therefore, that this is a rightful subject of legislation, which it clearly is, then it is within the province of the legislature to place the power of appointment in one person, or in a body of persons, and so likewise as to the power of removal. The legislature, in section 313, above quoted, has expressly authorized the council to remove all appointive officers; and this authority still continues in the council, unless it was repealed by the act of 1892. This act does not in express terms repeal any of the provisions of section 313. It simply repeals such laws as are inconsistent with its provisions, and it is difficult to see wherein any provision of section 313 is inconsistent with the law of 1892. Nor is any provision of the former law repugnant
When, as in the case at bar, there is a difference in ■the purview of two statutes, though relating to the same subject, the former is not repealed by the latter, in the absence of a repealing clause; and the legislature, when enacting the later law, is presumed to have knowledge of all former laws relating to the same subject. The doctrine ■of repeal by implication proceeds on the ground that it was the intention of the legislature, and such intention must be manifest before the repeal can become effectual. Suth. St. Const. §§ 138, 160; U. S. v. Claflin, 97 U. S. 546; Hudson Furniture Co. v. Freed Furniture & Carpet Co. (Utah), 36 Pac. 132. Nor can the position of counsel for respondent be sustained upon any principle of natural justice, for under such a power vested in the mayor the proceeding in case of removal would be ex parte, as well as summary, — without notice or opportunity to be heard, —and yet it is contrary to common justice that a party should be condemned unheard. Nor can it be sustained
Counsel for respondent seem to rely on the case of Ex parte Hennen, 13 Pet. 256, as sustaining their position. In that ease the petitioner was appointed clerk of the District Court of the United States for the Eastern District, of Louisiana by the judge of the court, and had served a-number of years as such clerk, with satisfaction to the court, when he was removed by the successor of the judge who had appointed him, and another party appointed in his place Under a certain provision of the constitution of the United States, congress conferred the power to appoint the clerks of those courts upon the judges thereof, but was-silent as to the power of removal and tenure of office, and the constitution likewise is silent as to the power of removal and tenure of office of clerks. After hearing tho case of an application for a rule to show cause why a mandamus should not issue against the judge to show cause why he should not restore the petitioner to the office, the court was of the opinion that the power to appoint a clerk was vested exclusively in the District Court, and the office' was held at the discretion of the court, and denied the rule prayed for. Mr. Justice Thompson, delivering the
The remaining question to be considered is whether the city council can remove appointive officers at its mere discretion, without preferring charges, and affording an opportunity to be heard. The appellant was so removed. To determine this question, it again becomes necessary to refer to the statutes which have a bearing on the subject. The first clause of section 313, above referred to, provides that, “every person elected or appointed to any office * * * may be removed by a vote of two-thirds of the city council,” and that “no officer shall be removed except for cause nor unless furnished with the charges; and shall have an opportunity of being heard in his defense.” The latter part of the section provides that “all officers appointed by the council may be removed at any time by vote, at discretion of two-thirds of said council.” Counsel for respondent claim that under this last clause the officer in question was effectually removed, and this even though the mayor had no power of removal. It is contended that this clause had' the same force and effect as if it were a ’separate section. The question is,
The legislature has further provided to the same effect in subdivision 87 of section 1755, Comp. Laws Utah 1888, which empowers the council “to appoint police and watchmen and to define their powers and duties, and to remove all officers of the city for misconduct, and to provide for filling such vacancies as may occur in any elective office, and to create any office that may he deemed necessary for the good government of the city; to regulate and prescribe the powers, duties and compensation of all officers of the city not herein provided for.” Under this section the council has the right to remove only for misconduct, and this applies to all officers of the city. This law is a part of the general incorporation act above mentioned, and amends the city charter, which is further amended by section 1764, which reads as follows: “The appointive officers of the city shall, hold their respective offices for two years, unless sooner removed by the city council.”
How, then, can the council assume to remove arbitrarily, at mere pleasure or will? 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 principle 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. The law makes the council the judge in such cases, and ordinarily its opinion or decision is conclusive, but it cannot dispense with the proceeding prescribed by statute. The mere fact that in the opinion of the council an officer has been guilty of misconduct in office, or that good cause for his removal exists, will not justify the exercise of its discretion in a summary way. The officer must be -furnished with specific charges, and
From an examination of the history of judicial proceedings, it will be seen that officers clothed with the power of removal for cause have frequently attempted its exercise at pleasure, ex parte, and such examination will also show how futile have been their efforts. Mechem, in his treatise on the Law of Public Offices and Officers, in section 454, after referring to the power of removal, where the office is held at the pleasure of the appointing power, says: “ But on the other hand, where the appointment or election is made for a definite term, or during good behavior, and the removal is to be for cause, it is now clearly established by the great weight of authority that the power of removal cannot, except by clear statutory authority, be exercised without notice and hearing, but that the existence of the cause for which the power is to be exercised must first be determined, after notice has been given to the officer of the charges made against him, and he has been
In Meade v. Deputy Marshal, 1 Brock. 324, Fed. Cas. No. 9,372, which was a case involving the right to remove an officer, Chief Justice Marshall said: “ It is a principle of natural justice, which courts are never at liberty to dispense with, unless under mandate of positive law, that no person shall be condemned unheard, or without an opportunity of being heard.” Ex parte Ramshay, 18 Adol. & E. (N. S.) 190, was a case where the Earl of Carlisle, chancellor of the duchy of Lancaster, removed a county judge under a statute which made it lawful for the chancellor to remove such an officer, “if he shall think fit, to remove for inability or misbehavior any such judge.” Lord Campbell, C. J., delivering the judgment of the court, said: “The chancellor has authority to remove a judge of a county court only on the implied condition, prescribed by the principles of eternal justice, that he hears the party accused. He cannot legally act upon such an occasion without some evidence being adduced to support the charges; and he has no authority to remove for matters unconnected with inability or misbehavior in the office of county court judge.”
The Queen v. Archbishop of Canterbury, 1 El. & El. 545, was a proceeding by mandamus under a statute which
In Page v. Hardin, 8 B. Mon. 648, the supreme court ’of Kentucky said: “The secz’etary being removable for breach of- good behavior only, the ascertainment of the breach must precede the removal. In other words, the officer must be convicted of misbehavior in office. And we shall not argue to prove that, in a government of laws, a conviction whereby an individual may be deprived of valuable rights and interests, and may, moreover, be seriously affected in his good fame and standing, implies a charge and trial and judgment, with the opportunity of defense and proof. The law, too, prescribes the duties and tenure of the office, and thus furnishes a rule for the decision of the question involved. Such a proceeding for the ascertainment of fact and law, involving legal right, and resulting in a decision which may terminate the right, is essentially judicial, and has been so considered here and elsewhere.” In that case the secretary was an appointive officer, and was removed by the governor without notice and hearing.
In Dullam v. Willson, 53 Mich. 392, 19 N. W. 112, Justice.Champlin, delivering the opinion of the court, said:
The law appears to be well settled by the great weight of authority, that where, as in the case at bar, the power of removal exists only for cause, and its exercise is regulated by statute, an officer who is rightfully in office cannot be removed without an opportunity to be heard in his defense, upon charges preferred. • Our ■ conclusion is that the mayor had no power to remove the appellant,