16 Utah 483 | Utah | 1898
after a statement of the case as above,’ delivered the opinion of the court:
The most important question to be' determined is whether the office of chief of police is abolished by the Revised Statutes of 1898. Counsel for the appellant maintain that there was no intention on the part of the legislature, in enacting these statutes, to abolish the office; that the same is still in existence; and that the appellant, having been appointed thereto under a tenure during good behavior, is still entitled to hold the same, and receive the emoluments thereof. The respondent contends that the law which created the office was repealed, and the office thereby abrogated; that the abrogation of the office effected a removal of the appellant; and that, therefore, he is not entitled to continue to exercise the duties of the office, or receive the emoluments thereof. The determina
Section 2479 of the revision provides that the Revised Statutes shall take effect on the 1st day of January, 1898. In section 2480 all prior laws of Utah, not excepted, are repealed. Section 2482 provides as follows: “All persons who, at the time said repeal shall take effect, shall hold any office under the statutes hereby repealed, shall continue to hold the same under the tenure thereof, except those offices which are abolished, and those as to which a different provision is made by the Revised Statutes.” This section is, in its terms, general, -and applies to all public officers of the state, including the chief of police and other policemen in cities, who, at the time the repeal took effect, held office under the old statutes, except those who held offices which were abolished, or for which a different provision was made. In looking over the Revised Statutes, we are unable to find any different provision respecting the office of chief of police, or such as could be considered in lieu of those concerning the office contained in the re-enactment of 1896. Nor have we been cited to any such different provision. The same
The vital question, under section 2482, therefore is,' was the office abolished? If so, its abrogation must have been accomplished by the general repealing provision contained in section 2480, for nowhere do we find, nor have we been cited to, any special or express provision in the revision repealing the act of 1896. No direct reference thereto, of appeal, anywhere appears. No doubt, it is well established, as a general rule, that an unqualified repeal of a statute creating an office abolishes the office and removes the incumbent; but where, as in this case, the repealing statute was enacted, not for the purpose of abrogating all the laws, but merely for the purpose of effecting a revision and codification of the laws, the repealing statutes must be construed in the light, of the circumstances which surrounded its enactment, . and effect must be given to the intent of the legislature, even though the repeal appears to be, in terms, express. In the general plan of revision, there was no design to absolutely repeal all the statutes of the state. Nor will a court assume, because of the repealing clause, that in such plan there was an intention to' abolish offices necessary to the public good or to remove the incumbent thereof. The evident design in the plan of revision was to continue in force the great body of the statutes, with some modifications and amendments, as well as to continue in existence the officers necessary in the execution of the laws, under the Revised Statutes. The object, doubtless, was not to abrogate or change the law to any great extent, or to abolish offices or remove incumbents, but to reconcile contradictory enactments and discrepancies, to remove doubts, and weed out superfluous matter, to give the sanction of positive law to rules which had previously been
In the light of these principles, then, and by their application to the case before us, we must proceed to deter
Thus it will be seen that in the Revised Statutes there is ample provision to create and maintain a fire department in the large cities, to create and maintain a police force in the small cities, and, according to respondent’s theory, provisions defining the powers and prescribing the duties of the chief of police and other public officers in large cities, with their offices abrogated. Is it not clear that such a contention leads to an absurdity? Would the able counsel who argued this case seriously undertake to maintain that the legislature intended to protect the peace and good order of small communities, to guard against the ravages of fire in large cities, and, at the same time, to ignore the peace and welfare, the lives and property, of the populous cities, leaving them to the evil propensities of the criminal classes who are wont to infest such cities? No such design can or will be imputed to a co-ordinate branch of the government. Nor are there any circumstances in this case which would warrant such
It is true, under section 206, subd. 86, the city council has discretionary power “to create any office that may be deemed necessary for the good government of the city”; but this is a general provision which applies to all cities, as well to those where an express power is conferred in the revision to create a police force as to those where no such power is given, and what has been said respecting section 214 applies, in the main, with equal force to this subdivision. The fact that a city council, in the absence of any other provision of law, has discretionary power, under section 214 and subdivision 86, to create and fill necessary offices, does not show an intention on the part bf the legislature to abolish the office of chief of police,
Thus, by diligent examination of the several statutory provisions, to which we have been cited, arid of ■ others noticed in our researches, we have been unable to find any which would warrant us in saying that the office in question was abolished. The broad terms of the repealing statute, when construed in the light of the circumstances which surrounded the enactment, are manifestly in conflict with the spirit and purpose of the legislature, as shown in the revision, respecting the office of chief of police in cities of the first class. That statute is subject to the same rules of construction as other enactments, and the intent must prevail over the literal sense of its terms. While in terms it repealed the great mass of statute laws, and buried among them was the act of 1896, still there was no appreciable instant of time between the repeal and the re-enactment when the repeal could be in force": Therefore,, in effect and operation, it must be limited to such provisions only as the legislature by the revision and repeal intended to abrogate.
State v. Moorhouse, 5 N. D. 406, is a case in many respects similar to the one at bar. There, as here, the controversy arose over the Revised Statutes and repealing act. It appears the main question was whether the office of district assessor, which had been created by statute prior to the revision, and an incumbent appointed, was continued in existence after the revision had taken effect. Mr. Justice Corliss, delivering the opinion of the court, said: “It is too plain for argument that one of the great
From the foregoing considerations, we are of the opinion that the office in question was not abolished, but continued in existence under the revision, and that the appellant, not having been removed, is entitled to hold the same, as provided in section 2482 of the Revised Statutes. The conclusion thus reached is, in accordance with the general principle of law, well established, that,' in the absence of any restrictive provision of statute, municipal officers, hold over until their successors are elected, and qualified. Tied. Mun. Corp. § 81; Stratton v. Oulton, 28 Cal. 45.
Such conclusion is likewise in harmony with the policy of the law, which is, to have some one, at all times, in a public office to discharge the duties therof, and, in a doubtful case, such policy will greatly influence the interpretation of the law fixing the tenure of office. “The law abhors vacancies in public offices, and great precautions are taken to guard against their occurrence.” Thro op, Pub. Off. § 308; State v. Seay, 64 Mo. 89.
It will be noticed that under this section, if the officer was to be suspended without pay, it was incumbent upon the board to proceed at once to consider and examine the charges, and to give him an opportunity to be heard in his own defense. Then upon the officer having been or having had an opportunity to be heard, it was the duty of the board to determine whether the charges were sustained, and, if not sustained, the officer was entitled to “be immediately” reinstated. If sustained, then it was equally its duty to “at once determine” whether the good of the service required that the suspended officer should be removed, or should “be suspended from office without pay for a fixed period.” It will further be noticed that, from the time an officer was suspended under this statute, he was bound to cease performing the duties of the office until reinstated. These same provisions of the act were considered in Pratt v. Board, supra, where a similar
In the case at bar the officer was suspended from office by the board on July 14, 1897, and remained suspended, without a hearing or an opportunity to be heard, so far as shown by the record, until January 1, 1898, when, as is conceded, the powers of the board were abrogated, and it ceased to exist, by reason of the taking effect of the Revised Statutes. It is shown that the officer, though prohibited by statute to perform the duties of the office, was at all times ready and willing to do so, and that, after the abrogation of the board and failure of the charges as a sequence, he applied to the mayor, to be permitted to discharge the duties, who also refused to recognize him. Thus, during all the time from the 14th of July, 1897, to the 1st of January, 1898, the officer remained suspended by order of the board, and thereafter, in effect, suspended by the refusal of the mayor to recognize him as an incumbent, without a hearing- or an opportunity to be heard as provided by law; and now, after such an unwarranted and remarkable proceeding, in direct opposition to the plain provisions of statute and to judicial interpretation, this court is asked to declare in solemn judgment that the incumbent, thus denied a hearing, so far as the record shows, is not entitled to the emoluments of the office during the time of his suspension. Upon what ground, it may be asked, shall we so declare? The record answers, because the board and mayor have failed to perform their duty under the law respecting- the charges. This proceeding- was a manifest violation of the very letter and spirit pf the statute. To hold that, under the circumstances of this case, the incumbent of a public office had forfeited his right to the emoluments of the office, would be a menace to good government, because it
Whether the suspension in the first instance was merited we have no means of knowing, and, because of the total failure of the suspending power to provide for a hearing, we would not be justified in assuming that it was so. If, however, the appellant failed in the performance of liis duty, or was guilty of improper conduct, he ought to have been suspended, and then his case promptly heard, and, if upon the hearing it had been ascertained that the charges were sufficient and sustained, he ought to have been as promptly removed, or suspended without pay, as the evidence might have warranted. In such event, forfeiture of salary could not have been questioned. Plain business principles as well as the law dictate such a course, and persons endowed with a public trust must not forget that they are bound by every principle of honor to discharge public affairs with the same fidelity as they would their own. But, aside from these considerations, we have already decided that'the appellant was and is the lawful incumbent, or de }ure officer, and, in the absence of a lawful suspension without pay, the right to hold the public office includes the right to receive the salary, which is an incident to the office itself. This is the settled rule in this state. Kendall v. Raybould,
The cases cited by counsel for the respondent on this point cannot be regarded as authority, because the circumstances which control those decisions are different from those in the case at bar. The point respecting a defect of parties does not appear to be well taken. We are of the opinion that the court below erred in sustaining the demurrer and dismissing the petition, and therefore the case must be reversed, and the cause remanded, with directions to grant the writ. It is so ordered.