McClain v. Church, Mayor , 76 Utah 170 ( 1930 )

I am of the opinion that the alternative writ heretofore issued should be made permanent. In my opinion the case of Stateex rel. v. Sheets, 26 Utah 105, 72 P. 334, is controlling in this case. If a majority of the city must vote for the confirmation of an appointment by the mayor of a chief of police because a liability is thereby created against the city, for the same reason a majority of the city council must vote to fill a vacancy in the office of city councilman because the filling of such vacancy creates a liability. The fact that the office of a chief of police is created by a city ordinance and the office of a city councilman is created by an act of the Legislature is without significance. The creation of an office in the absence of a provision for compensation to be paid to the person who holds the office so created does not create a liability. Compensation is not a necessary incident to an office. The city council fixes the compensation that shall be paid to an officer of a city whether the office is created by a city ordinance or by an act of the Legislature. It is as much the duty of the proper officers of a city to fill a vacancy in an office created by city ordinance as it is to fill a vacancy in an office created by an act of the Legislature.

In this case there are four councilmen. Any three of them can fill the vacancy caused by the death of one of their members without the aid of the mayor. The fact that they fail to do their duty in such respect is no justification for this court to overrule a case which has long been the established law in this jurisdiction. The prior decisions of this court should be followed unless there is an urgent necessity for not doing so. If the decisions of this court are to be overruled whenever the personnel of this court are not in entire accord with its previous decisions, our law would be thrown into confusion and neither the bench or the bar will be able to foretell with any degree of certainty the final results of any litigation.

I think the law as announced in the Sheets Case should be applied and followed in this case.