93 P. 734 | Utah | 1908
Tbe plaintiff in bis. complaint, after alleging bis citizenship, tbe corporate existence of Provo City as a municipal corporation, and tbe official positions of tbe defendants, proceeds in substance as follows: That on tbe 18tb day of June, 1906, the defendants, except William K. Henry, were bolding a regular session of tbe city council of Provo City in tbe council chamber provided by'tfiat city; that plaintiff was. present and attended said council meeting; that during tbe session of said council, for tbe purpose of carrying on tbe deliberations of said council in secret, and to prevent tbe public, and especially tbe citizens of Provo City, from knowing wbat was being done by said council in said session, upon motion made and carried for tbat purpose, said council resolved itself into a committee of tbe whole council, and wrongfully and unlawfully ordered tbat all persons, except tbe members thereof, tbe mayor of Provo City, and tbe defendant William K. Henry, as city marshal, be excluded from said council chamber while said defendants as tbe city council of ProVo City were discussing matters affecting tbe general welfare of said city; tbat plaintiff was lawfully present at said session, and bis conduct was quiet and inoffensive, and be desired to remain in attendance on said session, and so informed said defendants; tbat, notwithstanding bis right to be present and bis insistence upon such right, said defendants, as members of and constituting said council, unlawfully and wrongfully' instructed said William K. Henry, as city marshal, to remove tbe plaintiff from said chamber and said session; tbat in pursuance of said'order said Henry, as city marshal, told tbe plaintiff tbat be must leave said chamber, and tbat, if be did not leave immediately, be, said Henry, would forcibly eject tbe plaintiff from said chamber; tbat, to..avai,d forcible ejection, plaintiff left said chamber, and tbat be, by tbe means and manner aforpsaid, was excluded from said session of said council ;■ tbat, if plaintiff bad not left said chamber, said marshal would have put tbe plaintiff out by tbe use of force and violence; that by reason of being forced to leave said council chamber apd tbe session of said council, tbe plaintiff did
It is urged that the court erred in not sustaining the demurrer, for the reason that the complaint does not directly nor sufficiently allege that the plaintiff was either forcibly ejected from or against his will compelled to leave the council chamber while the council was in session as in committee of the whole council. It will be observed that the plaintiff does not predicate his right of recovery upon an assault and battery, nor for an injury arising from such a cause. The right of action is based upon his right to be present during the session of the city council as a public body while discharging public duties. The action is for the purpose of vindicating a right rather than for the purpose of recovering damages as compensation for injuries sustained. If- the plaintiff had not a legal right to be present and the city council had the right to hold secret sessions and exclude the public therefrom, then the complaint perhaps is vulnerable to the objection urged. Chapter 3 of the Revised Statutes of Utah of 1898 covers the subject of council meetings, of which section 202 is a part, and provides: “It shall sit with open doors and keep a journal of its own proceedings.” The question, therefore, is: Did the city council have the right to exclude the public, including the plaintiff, from its sessions while sitting in the capacity of what, in parliamentary law, is termed the “committee of the whole”? The practice of conducting business through the committee of the whole has for many years prevailed in legislative and deliberative bodies. Such a committee is no more than the assembly or body itself transacting a part of
“In the foregoing remarks, the history of the introduction an& establishment of this form of proceeding has been traced. It remains now to be seen what advantages, if any, it possesses over the ordinary mode; for, except that it furnishes an occasional relief to the speaker and that members are allowed in committee to speak more than once-to the same question, it is difficult at the present day to perceive any other difference between the house and the committee of the whole house than that the speaker presides in the former and a chairman in the latter.”
Tbe foregoing remarks with regard to tbe difference between tbe procedure of tbe committee of the whole bouse of Congress and tbe House itself is as applicable in principle to other legislative or deliberative bodies. No one would seriously contend that tbe lower bouse of Congress was not actually in session when sitting as tbe committee of tbe whole bouse. This, it seems to us, is true of all bodies when transacting business through a committee of tbe whole. That tbe committee of tbe whole city council of Provo City conformed, in a general way at least, to tbe usual method's pursued by such committees, tbe record leaves no room for doubt. Tbe city council of Provo City, while sitting as a committee of tbe whole, still was tbe city council and conducting public business, which, we think, tbe public, including tbe plaintiff, had a legal right to bear. Tbe statute would be robbed of nearly all of its force if it were construed to mean that tbe sessions of tbe city council should be open only so long as it transacted its business under tbe strict rules applicable to legislative bodies, but when it relaxed those rules so as to make debate and discussion freer it could close tbe doors against tbe public. To this tbe contention that no public business may actually be completed and no ordinances adopted or passed in tbe committee of tbe whole, and that tbe yeas and nays must be recorded so that any one may know just how each councilman casts bis vote upon any question, is no an
It is, however, urged that there are certain matters pertaining to the city’s business that, in the nature of things, might adversely affect public interests if conducted and discussed openly. This no doubt is true. In this regard, all such matters may be referred to and considered by special committees which may convene at any time and adjourn from time to time to consider and discuss any matter referred to them. To these committee meetings the statute does not apply. It does not follow, as is urged by the defendants, that, since the statute does not apply to these committee meetings, therefore it does not apply to the sessions of the whole body when it calls itself the committee of the whole. If there are matters which require special attention from the whole membership of the council, we know of no law, nor. of any rule of procedure, which prohibits the mayor from including all the members in such a special committee which must hear and consider the facts and report its findings thereon to the council the same as any other committee must do. While this would be a committee composed of all the members, it still would not be a committee of the whole, as that term is used in parliamentary law and procedure; nor could such a committee he formed as the committee of the whole is formed, nor could it transact the business in the manner as is done by the committee of the whole. We are of the opinion, therefore, that city councils have not
It also follows from what has been said that the evidence is sufficient to sustain the verdict, since the evidence supports the allegations contained in the complaint. Prom these views it further follows that the other errors assignedneedno special consideration. The defendants could not have been prejudiced by the questions put to and the answers elicited from the defendant Henry. If the principle insisted upon by defendants’ counsel were as broad as they claim it to be, then there might possibly be error with regard to the questions and answers aforesaid, but it is not so broad, and, as we view it, is not applicable to this case. '
The judgment therefore is affirmed, with costs to respondent.