McAllister v. Swan

Bartch, J.: This was an application for a writ of mandate against the respondent, who is the auditor of public, accounts of Salt Lake City, to compel him to issue his order -in favor of the relator on the city treasurer for $1,080, which he claims is due him, as inspector of provisions of the city, as salary from February 5, 1896, to February 5, 1897. The court below denied the writ, and the relator appealed. The respondent contests the right of the relator to a warrant for salary on the grounds that he was not lawfully appointed, and that the office was abolished, and not in existence, during the time for which payment is sought. The relator was appointed to the office in January, 1894, but this court held that appointment void in the case of People v. McAllister, 10 Utah 357, on the 3 ground tliat no vacancy existed when it was made. Alma S. Kendall -was held to be the lawful incumbent of the office, and entitled to discharge its duties and receive the emoluments thereof until lawfully removed, or until the expiration of his term; and in Kendall v. Raybould, 13 Utah, 226, we held that, not having been lawfully removed therefrom, said Kendall was entitled to hold the office, and receive the emoluments thereof, until the 18th of November, 1894, and granted him a writ of mandate to compel payment of the salary to him accordingly. It now appears that without any removal of Kendall. and right in the face of the decision of People v. McAllister, supra, the mayor and city council, on the 16th of October,-1894, again appointed the relator herein to the office. This appointment wa.s void for the same reason as the one made in January previous. It may bo observed that the sooner the mayor and city council will learn that such trifling with the law will not be tolerated, the better it wall be for the interests of the tax-paying public. It is apparent that after the expiration of the term of Kendall, the relator herein, if he was in the possession of the office, he was at most only a de 'facto officer, Avho was clearly subject to removal at any time, and was not in a position to complain of the act of the city council in abolishing the office. Section 312, 1 Comp'. Laws Utah 1888, after mentioning certain officers to be appointed, provides that there shall be appointed “ such other officers and agents as the city council may from time to time direct and appoint.” Under this general clause of the statute, the municipality had the right to create the office of inspector of provisions. The office vms, therefore, a creature of the municipal government; and the same power which created it had the right to abolish it, in the absence of legislative restraint, the office 4 not being created for tlie benefit of the incumbent, but for that of the public. Such an oifice, so created, is not an incorporeal hereditament, has not the qualities or character of a grant, and the incumbent cannot be regarded as having such an absolute property in it’as will prevent the power which created it from vacating it before the expiration of the term of appointment. Mechem, Fub. Off. §§ 464, 460; 1 Dill. Mun. Corp. § 231. As it was abolished by ordinance on February 5, 1896, the relator had no right longer to exercise any authority or perform any acts or service by virtue of the office, and, if he did, he has no legal claim against the municipality for compensation for services so performed. Therefore the auditor properly refused to issue a warrant on the treasurer for the sum in question herein., and the court committed no error in denying the writ of mandate. The judgment is affirmed. ' ZaNB, C. J., and Minee, J., concur.