Show ESLINGER WRIT ISSUED judge street orders the officer reinstated HOLDS DISMISSAL ILLEGAL tile the judge decides that the power of the chief of 0 police to rine rice dismiss or suspend is dependent on such rules ns its tha commission may establish la in absence of rules charges must be filed effort to hold a board Yle meeting eting fails the act construed judge tl beet handed dov down n an opinion est may in tile mandamus man Joan dimus danius proceed ingo instituted by sergeant eslin eslinger 9 er against chief pratt and tire fire and police poli board ill ills honor held that tile the chief lid did not lot have the power to dismiss serg sergeant cant EF edlinger linger aeilt hence ordered the peremptory y M ril rh to I isue issue sue directing the defendants fend tend ants to immediately restore the at applicant Ill cant to ills position in pas upon the core caeg judge sir street act said the rhe right of oc tile hio plaintiff in this action to A a peremptory Ns writ rit ol of mandate must depend primarily upon tile the answer this court makes to tho the question md the defendant arthur pratt chief of police ot of tile the city ol of salt lake on tin ath day of 0 may hay 1896 have power to dismiss the plaintiff from tho the police department tor for what was deemed good bond cause causa by itam bi the said raid chief pratt INTENTION OF THE ACT his HH honor then said that it was the intention of ft the act to place the fire and police departments on a strictly nonpartisan non tion partisan basis and that tile the act also elaborately provided a system tor for the lie organization and control of the lie tame section 8 was as general in its ite nature arid and directly applicable to the points at jnue it baid tile board hereby created su penly and control a said lid pollee police and yire fire departments Us its officers dembei 3 and employees subject to the ordinances ot of tin ree respective cities ettles and to the laug lams ot of the state and shall see bee that thai the th officers members find amply pea MS M S thereof faithfully discharge their dutle and that the lawit law orders arid and regulations relating 1 thereto hereto ire are carried into operation arid and effect here is ill an express del il galion to the board of in k road broad general terms tenni of the ilic power to supervise and control tile the tao departments and every officer ficci of find anil in member ember cef find and directly connected with this important grant of 0 power la Is tho the mandatory imposition of a duty to a we that every officer a and nd member discharges hla bid dutle duties q faithfully and that laws orders and regulations relating to the di of dut duty 7 BIT are careld carr ld into opt operation ration and effect till this section in judea streets opinion 1 11 inq tva of cf exceptional importance although it had received recalled but little attention lit in the arguments artru menta mente ills ilia honor further said raid POWER OF 01 THE CHIEF in the law here under discussion it Is if apparent that the primary glanc of oc executive control of oc the department depart finont la Is delegated in section 8 to tho board ot of sabat then are the powers and duties of the chiefs of the departments or more particularly the chief of pollee Poll ci to at horn hom the question li 14 directed in this case clearly thy they tre are subordinate to the executive control of 0 the board but how does the law dehne preserve and secure to these ex officers the power to make the office effective c to properly prop cily eily the executive functions dle delegated gated bv the law it Is claimed lu in this case cam that the exercised by tile the defendant chief of pollee police to ill smina plaintiff from I 1 the far cause was fr aci d elal to his official position and grant I 1 to jim by the act we therefore have come to the ital question in the I 1 1 cane I section 10 ends us as follows it shall I 1 te a their IT L c e the Cli chieffo duty to make and enforce rules and to to cure discipline in their r d a a t merits respectively they shall I 1 have power under such rules ruler as the board may establish to suspend without pay par line inc not to exceed 10 0 or als alp ally ny officer maniber or employee of their respective delai but they shall forth forthwith wit h lit in writing tile the for such action to th the c I 1 board hereby cheated by whom said ald lime may bi w remitted or by m hom said officer Ticer ol member or employee may be reinstated by a vote of three members arid and the alie action of so said III chief of either department lit in suspending filling or dib missing any subordinate liell i acler nicer member or employee un I 1 IM a re reverted ased or modified by said bald board shall be and and ahalt not ot be reviewed or called in question ty by any court it I 1 ID contended in this case on the part ot of the defendant chief of pollee police that in dignal asing plaintiff from the department lie acted under the power by the portion of section 10 lust jus looted and ad therefore he this co court 1 1 rt has as no jurisdiction to review ilia his acal action 0 n the right to if any adv existed must murt have its source in the language Iii Kuae quoted this Is 1 the only bec eec c t or the act which alch grants pollee t to 0 the chief toi to enforce penal tim it Is clear that it 1 the was anade ade under a rulo established by tile board li this cour un t could not assume jurisdiction but it appears in the Plew lIngs aid wid decord of taw cane that through iro a ent of the lioard oc r nr ln concra no bulei have been X m lill laboa a by y the ii board map what or wb neglect of duty shall wi Jl lif a 41 subordinate of officer floer aik or te of the pollee sub jett to title suspension or dismissal t 0 this fact prevent the atie chief ot of J ollee from fining filling suspending or I 1 is in u 8 c case e at har bax dismissing a 1 a ilc until the board shall estabi h too 18 ellwing off e becs and punish me S te be I 1 p ed for infraction ot of sue h rill SUBJECT BL EJECT TO RULES BULES the court Is ot of the opinion that the kant of power to 0 one fine dismiss or sus EUS malla Is dependent upon tho the fon that it it shall bs be under is uch buch tulea hi as 1 l the loala board may y establish and without the promulgation by the loard wa of 0 such mich rules either a fine or a hv 1051 imposed posed or dismissal mado made oy y the chief of 0 police tor for any cause i atit ver Is s without authority of 0 law this construction not does 1 ilni only not 1101 full att ia the IS spirit ot of the th apt acs but is in accord therewith alth nor dos doe as it I 1 leale tor fet sf tho d 1 11 without re remedy na dy ly earil of 0 lauty duty by subordinate A Pall ng fuch ec t reasonable tune time for 1 ti 1 by ul the board upon rules rule aa s trill lead i to the lh promulgation of a cole code i 1111 lly in accord with w the equitable prin 1 to artl of the act section 11 provi provided dev n ifor of bt nh the filing ne at cl charges ees by tile the chief i the nr r departie depart me and while it Is 5 in n asi plain ot opt this law lw to avold avoid V i ha ordinary miry cases ca t he dilatory proceeded 46 of a former mer ed trial a I 1 yet the easa cilli cillia of only 1 brov r ade a remedy section in a alk 1 1 able tills this but Is also always adall vall a subordinate la Is guilty or otan I 1 4 i not t covered avd by the rules ul alli I 1 11 it was argued eu 1 l at the guaring li that thai I 1 bor 0 maar a ln in out tile phi phrase ase under h 1 t the e bourd board may establish alc le OL lang atory ut ory r tut but merely H 1 I S t 1 b y neglecting Ble cHiu or refuting refusing 1 rules t 11 to boa ll 11 rd might per PCT 0 11 1113 7 wit daniw 11 iw th executive r lilt J idd bv I 1 th fr I 1 gl I 1 lature to be ested ciu il in them I 1 jim am of 0 the opinion that this construction Is r nol OL the true trite one section 8 already dy quoted in tull full imposed dutar I 1 upon pon the th board to sec ece that the and employees faithfully dl di charge their alln lr duties and that the lawi rulers and regulations relating thereto if 11 e to the discharge of duty duly ar are L carried into cited S section 9 im imposes I 1 boes woes tire the imperative impel atlee duty upon the board of 0 causing caje lne tin fit lulls jules and regulations herein provided for meaning in all parts of the act to be prepared and adopted by said bald loard board and all changes therein to ile be and gs it shall deem decin necessary and such puch rules arid and regulations ia specify u when lien they shall tolio aalto el ef feet it Is hie elie right of 0 the executive OM to ha havo v e rules rulea established by ali the govern I 1 bd body chich fiust he be obeyed by under penalty of line fine suspension or dismissal by the executive ali 0 officer tt it Is the lacht ot of thi the subordinate officers members and employees to have rules established ond mild published so that they may cloard Y know and tand their duties and tile penalties they incur by or neglect of the th raine and so that they may not unwittingly offend DUTY OI OF BOARD illis 14 holh the lie letter arid spirit of nl the act acl und therefore hit art absolute duty Is 14 imposed upon the elie board to el c lilt ahe aul s which shall give tile ren mi able power imposed by file act to lo tile the executive to enforce by penalty pi nally the code which shall hall br be established suit fit at tile sum saino time advise aery sub out ardin ile of lit duller lilt lc and that prompt of a defined alii will ill follow to or this wills villita iv wh wat evidently clde nth dermel appropriate by the ani ami an I is thre fure not only worthy of a fair and f full u 1 t 1 lilal I lut but is IA 1111 imposed posed by I 1 the lie law u upon r 0 n the th departments 1 and all C connected therewith the permission implied by tho elie word may in tile iho phra tc ic ferr berred e it to la Is lii III my opinion ot of a differ pat mattli e from that which was con tended for tor it means must am aa tar far as aa the lie duty duly to establish rules Is concerned un under der well known principles of 0 tory construction such duty being im pera ely imposed by other sections lut but it derives in the act from the evi lent intent ot of ollon jug the board permission to regulate the ali number and of 01 the rules rule and the degrees 0 of punishment to be imposed for or lle elie ln lit fraction fra cllon thereof in construing the act generally arid and the sections vital to the lie exact question here to tn be decided particularly I 1 have ignored tin the laet last phrase in section 11 believing thai tile use of 0 the worl word pleasure in ill that section was inapt arid and neither defined ony oily erht nor granted any power the section related to the he continuance lit in office of 0 tile ilia members of the force at the birne the law became effective and evidently was intended to 10 ravert LIT all other questions to other sections of tile the act in dec tiling this hl case cabe I 1 expressly disclaim to decide the merits 0 of the controversy between plaintiff and a nd chief pratt OR to or of duty ani an i insubordination tills this court has no jurisdiction to try that hifue if K the hie charges chiai fars plaintiff are truo the hand of oc discipline could properly be laid upon him but to what extent tile the chief did not then have tire hie power to acay Z ay and a lid the offense did not need ro eo unpunished as section 11 ot of tin tile act pro aluen A ti it wnm not yet appealed to in III tilts this matter mailer to lly debet mine the offense find and its punishment this thin E should hould not bp be tn lit ordinary breaches of discipline or duty duly vicere proper rules tire are established by the board but Is available aval lable in oily any ce cac tile peremptory fit of mandate must issue requiring elie defendants to restore the plaintiff to the position he occupy d at tile the time of 0 ills dit dismissal missal and c rosta axe aio taxed against defend anta ir SHORT T STAY GRANTED As boon as aa the reading of the opinion had been concluded sir mr van cott asked far ur a nay of 0 live five days pending an appeal to the iho supreme court this was mas objected to by mr cailan aud judge henderson who contended that no stay should bo be granted crant cd mr air varian also raised the point that sir mr van cott colt was not ie presentIng the five file find and police board and that lie ho only appeared app pared for chief pratt NT mr r van cott insisted however that lio lie at least represented two ot of th ill members mcm mem lieis bets hut mr ir varlan varian again took issue with him upon the ground that the board met in regular bession und and decided upon its answer to the alternate writ which was spread at length upon the minutes and then filed if in coutt clr 1 Vs varlan rl an contended that mr I 1 van I 1 C cott it could not take an appeal for the board until the board had mot met and decided whether or not an appeal was wanted finally the coui chui t decided to allow matters to remain in baatu quo until 3 2 this afternoon during which time it was mas expected that the board would hold a meeting |