89 A. 1066 | R.I. | 1914
These are two cases between the same parties; and although they were argued at different times, the questions arising in both cases are so closely related and interwoven that, for convenience, we shall consider and determine both cases in one opinion.
The first case is an appeal from the judgment of the Superior Court denying and dismissing the petition of Baylies R. Chace for a writ of mandamus to compel the defendant members of the city council of the city of Providence to convene and to remove the suspension of said Chace from the office of collector of samples of milk and to restore him to said office, from which he had been suspended by the following joint resolution of said city council, passed on July 8, 1913:
"Resolved, That Walter O. Scott, Inspector of Milk, and Baylies R. Chase, Collector of Samples, of the city of Providence, be and they hereby are severally suspended from their said respective offices, such suspensions to continue in effect from the date of the passage hereof and until the hearings on the pending charges against said officers respectively shall have been had and the city council shall have taken final action relative to such respective charges.
"And that the superintendent of health of the city is hereby authorized and directed during the period of said suspension of said inspector of milk to supervise the quality of milk sold and delivered in the city of Providence, and to take any lawful steps necessary to prevent and restrain the sale of adulterated milk or milk below the required standard and deemed adultered under Chapter 173 of the General Laws, entitled `Of Milk,' and said superintendent is hereby authorized to cause all samples of milk collected by any officer of the city, or by any person employed by said superintendent to obtain specimens of the milk being supplied in the city, or received by said superintendent from any residents of the city to be tested and analyzed, and to notify *334 the chief of police of all violations discovered by him in said Chapter 173 of the General Laws; and said superintendent may use any property of the city used by or in charge of the inspector of milk; and the expenses of said superintendent hereunder shall be charged to the appropriation for the health department.
"And that the city clerk is hereby directed forthwith upon the passage hereof to cause copies hereof, duly certified by him, to be served by the city sergeant upon said Walter O. Scott and Baylies R. Chace severally."
Said charges are specified in papers accompanying a joint resolution of said city council, also passed July 8, 1913, entitled "Resolution Creating a Joint Special Committee with Certain Powers and Duties Relative to Charges Against Members of the Milk Department of the City," which resolution reads as follows:
"Resolved, That the Mayor and Aldermen Moulton and Kelso of the board of aldermen, designated by the Mayor, and Messrs. Harden, Phillips and Berth of the common council, designated by the president thereof, be and they hereby are appointed a joint special committee of the city council, with the following powers and duties. Said joint special committee shall hear and receive the evidence presented in support of and against the accompanying charges against two officers of the milk department of the city, namely, Walter O. Scott, Inspector of Milk, and Baylies R. Chace; Collector of Samples, which charges, as recommended by the committee on milk to the board of aldermen, have been formulated by the law department; and said joint special committee shall cause said evidence to be taken stenographically, transcribed and with any documentary, book or other exhibit evidence in any form received by said committee to be filed with either branch of the city council, and therewith said committee shall submit to the city council its report relative to such charges and evidence, its findings thereon and its recommendations, for such further action as the city council may determine. Said *335 committee may cause the transcribed evidence to be printed, and printed copies thereof to be also filed as aforesaid for the use of the city council, and may make its report in print.
"In case pending such proceedings any further or other charge or charges shall be made to said committee by any citizen or citizens of the city against said inspector or said collector, or any other member of the milk department, said committee in its discretion may also investigate as to such charge or charges, after giving the accused reasonable notice thereof, and in such case shall also submit the evidence relative thereto and its report thereon to the city council as aforesaid.
"Such officer or officers of the law department as designated by the city solicitor shall prosecute said charges before said joint special committee; and any expenses of said joint special committee relative to its duties hereunder on the approval of its chairman, and the expenses of the law department incident to summoning witnesses, investigating any relevant matters or otherwise relative to prosecuting the charges, on the approval of the city solicitor, shall be paid from the balance of the appropriation made by resolution No. 217, approved May 22, 1913, and any amount of any such expenses in excess thereof from the appropriation for the city council. Forthwith upon the passage of this resolution, the city clerk or one of the deputy city clerks shall cause copies hereof and of the accompanying charges, duly certified by him, to be served by the city sergeant upon said Walter O. Scott and Baylies R. Chace severally, and on Monday, July 14, 1913, at 10 o'clock A.M., at the council chamber, city hall, said committee shall convene, and proceed with the performance of its duties hereunder."
The city sergeant of said city on July 8, 1913, duly served copies of both said resolutions, and of said charges, duly certified by the city clerk of said city on said Scott and Chace severally. *336
Said charges allege grave dereliction of duty on the part of both said Scott and Chace, and include charges against said Chace that he had received money graft or bribes, and are serious, substantial and specific.
Immediately after the passage of said resolutions and notice thereof and of said charges, said Chace filed this petition, which was denied by a judge of the Superior Court after hearing evidence and argument; a decree was entered denying and dismissing the petition and an appeal to this court was duly claimed and prosecuted, and is now before this court.
The petition sets forth the appointment of the petitioner to the office of collector of samples of milk by Scott, the inspector of milk, and that he was at the time of the passage of the above quoted resolutions suspending him from office, to wit, on the 8th day of July, 1913, and for a long time prior thereto, a duly qualified collector of samples of milk for the city of Providence and was and had been for a long time discharging the duties of said office. It then sets forth the passage of the above quoted joint resolution of suspension, and alleges that the city council has deprived the petitioner of his office room, books, papers, records, etc., and has prevented and still prevents him from exercising the duties of his office.
Said petitioner then sets forth his contentions, as follows:
"FOURTH. And your petitioner further shows that the office of collector of samples of milk, of which he is the incumbent duly appointed by the milk inspector of the city of Providence, by virtue of Chapter 173, General Laws, Rhode Island, 1909, is a State or public office, and not a city or corporate office, and your petitioner as such collector of samples of milk under and by virtue of Section 9, cap. 173, General Laws of Rhode Island, 1909, is a State or public officer, and not a city or corporate officer, and he avers that said city council was not only without authority, but wholly without jurisdiction to act in the premises. *337
"FIFTH. Your petitioner further shows that said common council did not elect or appoint your petitioner to his said office, not participate in his election or appointment, and they had no lawful right, power or authority to join with the board of aldermen in said purported suspension of your petitioner as above set forth.
"SIXTH. And your petitioner alleges that the matter of said purported suspensions was not within the jurisdiction of said city council."
Petitioner then alleges service upon him of a certified copy of said joint resolution of suspension, and the filing by him of a protest, in writing, addressed to said city council, on the ground that said council was without lawful authority or jurisdiction in the premises, and prays for a writ of mandamus as above set forth.
The city charter contains the following provisions:
SECTION II. "Clause 1. The administration of all the fiscal, prudential and municipal affairs of said city, with the conduct and government thereof, shall be vested in one principal officer to be styled the mayor; one council of ten persons to be styled the aldermen; and one council of forty persons to be styled the common council; together with such other magistrates or officers as are hereinafter specified, or by the laws of this State or the ordinances of the said city are, or hereafter may be, authorized or prescribed.
"Clause 2. The mayor, aldermen, and common council, in their joint capacity, shall be styled the city council."
SECTION VIII. "Clause 1. The mayor and aldermen shall exercise the executive powers of said city generally, and the administration of police; together with such other powers as now are, or hereafter may be, conferred upon them by the laws of this State or by the ordinances of the city council."
SECTION IX. "Clause 1. The city council of said city shall have power to make laws, ordinances and regulations for the government of said city, relative to" . . . "the *338 police department" . . . "the public health," etc. . . .
"Clause 4. The city council shall have power to appoint . . . "an officer to be styled the chief of police, and to prescribe his duties and fix his compensation." . . .
"Clause 9. The city council may by a concurrent vote, two-thirds of the members elected to either board voting in the affirmative, remove all officers for misconduct or incapacity." (See Charter and Special Laws, City of Providence, 1901, pp. 1-et seq.)
Prior to 1798, by the laws of this State, the town councils of the respective towns were authorized "to make and prescribe such orders and regulations as they may deem prudent and advisable, for the preservation of the health of the inhabitants," etc. (See Revision of 1798, p. 344, Sec. 19.)
In Rev. Stat. 1857, Chap. 34, § 11, p. 100, it is provided as follows: "Sec. 11. The several town councils and boards of aldermen shall be ex officio boards of health in their respective towns, and may make such rules and regulations not repugnant to law, as they shall judge proper, for the preservation of the health of the inhabitants thereof," etc.
These provisions have been substantially reenacted in every subsequent revision and have remained in force down to the present time, and now appear in Gen. Laws, 1909, Chap. 50, § 13, p. 232, and under said provisions, and by virtue of the city charter Section VIII. Clause 1, above quoted, the mayor and aldermen of the city of Providence have always acted as the board of health of the city of Providence, and have been so designated in its official manual down to the present time.
By act of the General Assembly, c. 829, passed March 14, 1870, it was provided that "the mayor and aldermen of any city, and the town council of any town, may annually appoint one or more persons to be inspectors of milk for their respective places," etc., providing for giving public *339 notice of appointment "in the city or town," for keeping an office and record of dealers in milk "within their limits;" and for taking specimens of milk and for analysis; and for various penalties for sale of adulterated milk, etc. This act has passed through the various subsequent revisions of the statutes, and remained, with some changes and additions, a general permissive act as to all cities and towns, until the enactment of General Laws, 1896, Chap. 147, § 2, which provided as follows: "Sec. 2. The mayor and aldermen of any city, and the town council of any town, may annually elect one or more persons to be inspectors of milk therein, who shall be engaged to the faithful discharge of the duties of their office. Every such inspector shall give notice of his election by publishing notice thereof for two weeks in some newspaper published in the city or town for which he shall be appointed; or, if no newspaper be published therein, by posting up such notice in two or more public places in such city or town: Provided, that the mayor and aldermen of the city of Providence shall annually, in the month of August, elect such person or persons to be inspectors of milk and may, at any time during the year thereafter, fill by election any vacancy occurring by reason of death, resignation, absence from the city, or inability to act." By this act the election of an inspector of milk in the city of Providence became obligatory. Certain changes in this section, which are not important to the present consideration, have been made by subsequent revision, the latest change being that providing for biennial elections. (See Pub. Laws, Jan., 1912, Chap. 863.) (See Gen. Laws, 1909, Chap. 173, Sec. 8.)
It may be noted here that, since the provisions last above quoted, for the election of inspectors of milk, were obviously passed with a view to the preservation of health, it was most appropriate that the election of such inspectors should be confided to the respective town councils and boards of aldermen, which, as we have already seen, were and are ex officio local boards of health in their respective towns and *340 cities, thereby giving them power to elect a special health officer for the purpose of assisting them in the more efficient performance of one of their most important duties, viz.: in regulating the sale of milk and preventing the sale of adulterated milk.
Another step in the same direction was the provision for the employment of collectors of samples by such inspectors. This was brought about under Chap. 333, Pub. Laws of R.I., passed May 13, 1896, the first section of which reads as follows: "Section 1. Any inspector of milk of any town or city now in office or hereafter elected under authority of Chapter 147 of the General Laws, entitled `Of Milk,' or of any act in amendment thereof, may employ, subject to the approval of the town council or the mayor and aldermen, one person as collector of samples, who shall have the same powers and be subject to the same duties and liabilities provided by law relative to the taking of specimens or samples, as an inspector of milk. All specimens or samples taken and retained by any such collector shall be delivered to such inspector, who shall have the same powers and duties relative to the same as in case of specimens or samples taken by himself. Such inspector at any time may discontinue the employment of any such collector, and subject to the approval aforesaid, employ another person in his stead. Such collector upon being employed shall be duly engaged to the faithful discharge of his duties before the city or town clerk, who shall keep a record thereof; and shall receive such salary as the mayor and aldermen or town council shall determine."
Special provision for the city of Providence was later made by Pub. Laws, Chap. 785, passed May 31, 1900, as follows: "Section 1. Any inspector of milk in the city of Providence now in office, or hereafter elected under authority of Chapter 147 of the General Laws, entitled `Of Milk,' or of any act in amendment thereof or in addition thereto, may appoint, subject to the approval of the mayor and aldermen of said city of Providence, two persons as *341 collectors of samples, each of whom shall have the same powers and be subject to the same duties and liabilities provided by law relative to collectors authorized by the provisions of Chapter 333 of the Public Laws, entitled `An act in amendment of and in addition to Chapter 147 of the General Laws, entitled `Of Milk,' passed at the January Session, A.D. 1896.' All specimens or samples taken and retained by any such collector shall be delivered to such inspector, who shall have the same powers and duties relative to the same as in case of specimens or samples taken by himself; such inspector may at any time dismiss any such collector, and, subject to the approval aforesaid, appoint another person in his stead. Each such collector, upon appointment, shall be duly engaged to the faithful discharge of his duties before the city clerk of said city, who shall keep a record thereof, and shall receive such salary as the mayor and aldermen of said city shall determine."
These provisions now appear without substantial change, in Gen. Laws, R.I., 1909, Chap. 173, § 9.
That a proceeding by way of petition for a mandamus is appropriate to compel the restoration to office of a rightful incumbent who has been wrongfully removed is amply supported by authority cited on behalf of the petitioner and is not questioned on behalf of the respondents. We see no occasion therefore to discuss this question. The sole question to be determined in this first case is whether, in view of the laws of this State, as above set forth, the city council of the city of Providence had the power to suspend the petitioner as collector of samples of milk from his office, pending the investigation of charges against him, by its resolution as above set forth.
The second case is an original petition in this court for a writ of certiorari. The petition sets forth the appointment and qualification of the petitioner as a collector of samples of milk, in somewhat greater detail, but substantially as above set forth, and his continuance in office until July 8, 1913, and his then exclusion from his office; the presentation *342 of the charges, already referred to, to the mayor on July 7, 1913, and the convening of the city council by the mayor on July 8, 1913, in special session for consideration of and action upon said charges; the presentation of said charges to said city council, at that meeting, and the passage of the joint resolution appointing the joint special committee on July 8, 1913, which said joint resolution has been hereinbefore fully set forth; that pursuant thereto the committee sat, from time to time, and heard and took evidence upon said charges, and on December 26, 1913, reported to the city council, and in their report found the petitioner guilty of misconduct in his official capacity and recommended that he be dismissed from his office. The petition further shows that on December 26, 1913, the city council voted to receive said report and on the same date passed a joint resolution, as follows:
"Resolved, That Baylies R. Chace, Collector of Samples, be and he hereby is required to appear before the city council of the city of Providence on Tuesday, the thirtieth day of December, 1913, at seven o'clock P.M. in the chamber of the common council, city hall, and show cause why, relative to the charges against him accompanying the joint resolution of said city council No. 281, approved July 8, 1913, entitled `resolution creating a joint special committee with certain powers and duties relative to charges against members of the milk department of the city,' and the proceedings of said committee and the evidence presented before said committee in support of and against said charges, and the report made by said committee to said city council on the twenty-sixth day of December, 1913, a copy of which report is hereunto annexed, he should not be removed from his said office of collector of samples of said city.
"And that said Baylies R. Chace be notified hereof by the city clerk causing a copy hereof with a copy of said report, duly certified by him, to be served by the city sergeant as soon as may be upon said Baylies R. Chace *343 by leaving the same with him or at his last and usual place of abode with some person living there."
The petition further shows that the petitioner, after being cited by said resolution to appear, protested in writing to said city council against its proposed action "for the reasons that he is a State or public and not a city or corporate officer, and that said city council is without jurisdiction in the premises."
The petition further shows that, December 30, 1913, the city council passed in concurrence the following resolution:
"Resolved, That after considering the evidence presented relative to the charges against Baylies R. Chace, Collector of Samples of Milk, accompanying joint resolution of the city council No. 281, approved July 8, 1913, the city council finds:
"FIRST, that although the allegations of said charges numbered 1, 2, 3 and 4 are proven, yet being in effect charges of negligence, and said Chace as such collector having acted under the general directions of his superior officer, he is not considered to be sufficiently responsible to be held guilty of misconduct therefor;
"SECOND, that said Baylies R. Chace is guilty of the misconduct stated in said charges numbered 5, 6, 7 and 8, copies whereof and of the bill of particulars to the same respectively being hereunto annexed;
"And Further Resolved, That, said Baylies R. Chace being guilty of the misconduct specified in said charges numbered 5, 6, 7 and 8, and in view thereof not being a fit person to hold said office of collector of samples, said Baylies R. Chace be and he hereby is removed from his said office of collector of samples of milk of the city of Providence;
"And Further Resolved, That said Baylies R. Chace be notified hereof by the city clerk causing a copy hereof, duly certified by him, to be served by the city sergeant as soon as may be upon said Baylies R. Chace by leaving the same with him or at his last and usual place of abode with some person living there." *344
The charges and specifications upon which petitioner was so found guilty are stated in full in the petition and were annexed to the last quoted resolution; they consist of a corrupt proposition to a former inspector of milk involving prospective protection to milkmen and prospective collection of graft; and various charges of the receipt and collection of money graft or bribes from various named parties at different times during petitioner's incumbency of office; petitioner admits service upon him of a certified copy of said resolution and charges, December 31, 1913. He further alleges that he did not attend said meeting of the city council on December 30th when he was given an opportunity to appear and be heard; that no testimony was taken or presented at that meeting in relation to said charges; that all such testimony was taken before said committee and that there never has been any such testimony taken or presented by or before two-thirds of the said city council; petitioner then sets forth certain clauses of the city charter already herein set forth and referred to, and reiterates his claim that under the law of his appointment "his said office of collector of samples of milk is a State or public office, and not a corporate or municipal office," and that petitioner is a "State or public officer, and is not an officer of the city of Providence;" and in conclusion claims that the city council was without jurisdiction to remove him from office and prays for a writ of certiorari to bring up the record of said city council relating to the matter of his removal to the end that the same may be quashed.
It thus appears that three principal questions are raised: 1. Did the city council on July 8, 1913, have the power to suspend the petitioner from his office? 2. Did said city council, on December 30, 1913, have jurisdiction to remove the petitioner from his office? 3. As subsidiary to the second question, if the city council did have the power to remove, had it taken the proper procedure for his removal?
It may be conceded at the outset, that nowhere in the law have we found any power conferred upon the city council *345 in express terms to suspend the petitioner from his office. If such power exist, then, it must be as incident to the power to remove. The primary question, therefore, is as to the power to remove.
The broad claim of the petitioner that he is a "State or public officer" and not a "corporate or municipal officer," and that therefore the city council under its charter powers had no jurisdiction or authority over him, is not supported by authority, and is not in accord with the reasonable construction of the laws above cited. As we have seen above, boards of aldermen and town councils have from very early times been expressly authorized to act as local boards of health; and the mayor and aldermen of the city of Providence, composing one board (Charter, Section IV.) and exercising "the executive powers of said city generally, and the administration of police; together with such other powers as now are, or hereafter may be, conferred upon them by the laws of this State," . . . (Charter, Section VIII.) have for many years exercised the powers of a local board of health within and for the city of Providence. In the case ofPope Mfg. Co. v. Granger,
By reference to the various provisions of the statutes above quoted, whereby the offices of "inspector of milk" and "collector of samples of milk" were respectively created, it appears quite obvious that the election of these officers by town councils and boards of aldermen was authorized by the General Assembly for the purpose of assisting such local boards of health in the discharge of their duties in the important matter of regulating the sale of milk and its quality within their respective localities. The fact that the proper and efficient inspection of milk in the city of Providence, by means of which this most important article of food may be kept pure and healthful, within the city, is incidentally of interest to the inhabitants of the State who may happen to come into or sojourn within the city, or the fact that the preservation of the public health of one political division of the State is beneficial to the public at large, does not render either the inspector of milk or the collector of samples a "State or public officer" in any such sense as claimed by the petitioner. Such officer is primarily and essentially a local or municipal officer, and an assistant or servant of the local board of health. Each town and city is authorized to have its own inspector of milk appointed or elected by its local board of health and such local boards of health and their inspectors are entirely independent of each other and discharge purely local functions, having no jurisdiction outside their respective towns and cities. The collector of samples of milk is appointed by the inspector subject to the approval of the town council or of the mayor and aldermen, and is merely the assistant of the inspector, who may at any time revoke his appointment. As between the inspector and the collector, the latter is a mere employe or assistant without definite tenure of office, and may be *347 removed at the pleasure of the inspector; no cause need be assigned.
The petitioner apparently relies upon several cases in this state as authority for his position that he is a "State or public officer," but these cases do not support his position that such an officer may not be removed from office by action of the municipal authorities. The case of Gainer v. Dunn,
It may be of interest to note at this point, in view of petitioner's reference to the Providence Police Commission, that the General Assembly, November 22, 1901, passed an *348 act (Chap. 930) to establish a board of police commissioners for the city of Providence, substantially like the Newport act, vesting the appointment of the three commissioners in the governor, with the advice and consent of the senate, and providing for their removal "by the governor, with the advice and consent of the senate, for such cause as he shall deem sufficient and shall express in the order of removal." This act remained in force until April 6, 1906, when by Chap. 1379, the law was so amended as to vest the appointment of such commissioners in the mayor, subject to the approval of the board of aldermen; and providing that, "The members of said board may be removed by said mayor, subject to the approval of said board of aldermen, for such cause as he shall deem sufficient and shall express in the order of removal." The powers and duties of the board of police commissioners are not substantially changed, and the board remains just as much a board of state officers as ever, but the power of appointment and removal has been vested in a municipal board.
Petitioner also cites a number of cases which are referred to and approved in the Newport cases and which are to the same general effect; but in none of them is the question of the power of removal considered. The action of the General Assembly in the matter of the Providence Police Commission in first taking the administration of police out of the hands of the city authorities and afterwards restoring it to the mayor and aldermen, shows a legislative recognition of the wisdom of the policy, which is most common, of delegating the control of boards of police commissioners and the administration of police, including appointments and removals, to municipal authorities; as was in fact originally done by the charter of this city above referred to in Section VIII Clause 1, and Section IX Clause 1, above quoted. It may be here noted also, that by the terms of the charter, Section IX Clause 4, the city council was empowered "to appoint an officer to be styled the chief of police and to prescribe his duties and fix his compensation;" and in clause *349
9 of the same section the city council is empowered by a concurrent vote, two-thirds of the members elected to either board voting in the affirmative, to "remove all officers for misconduct or incapacity." It will not be questioned that the chief of police is a state or public officer in the sense in which the term is used in Horton v. City of Newport,
It is quite plain that when, under the statutes above quoted, provision was made in 1870 for the appointment of inspectors of milk, and later in 1896, such appointment of an inspector or inspectors of milk was made obligatory upon the mayor and aldermen of Providence, and that when, in 1896, provision was also made for the appointment of collectors of samples, and those appointments were made, the inspector of milk and his collectors of samples so appointed in the city of Providence became officers of the city within the words of the charter last above quoted, being "officers" . . . "by the laws of this State" . . . "hereafter" . . . "authorized or prescribed;" and therefore that they became and were subject to the express power of removal under Section IX Clause 9, above quoted.
Many cases from other jurisdictions are cited on behalf of the petitioner; but they have to do with a variety of local statutes, and discussion of them in detail is unnecessary, in view of the fact that none of them in any way affects what we consider to be the plain construction of our own statutes; nor is any case cited wherein it is held that a power of removal expressly delegated to municipal authority may not be lawfully exercised even where an officer, such as a chief of police, a policeman, a police commissioner, or a city marshal, deemed for certain purposes to be a state or public *351
officer, appointed in accordance with a State law and whose duties are strictly defined by such law, is nevertheless by express terms of a city charter removable upon proper proceedings before a municipal body such as a town council, a board of aldermen or a city council. See Lowrey v. Mayor, etc., ofCentral Falls,
As to the distinction between local officers of a town or city or other local subdivision of the State, and state officers subject to impeachment under the constitution, see Lowrey v.Mayor, etc., of Central Falls,
But the petitioner contends that he is not subject to the power of removal vested by the charter in the city council, because the statute, which creates his office (See Gen. Laws, 1909, Chap. 173, § 9), provides that the inspector who appoints him may at any time revoke his appointment; and petitioner thereupon claims that such power of revocation is exclusive of all other methods of removal. The argument in support of this position is not convincing; no cases are cited which in anywise support it. The power of revocation given to the inspector is solely for his benefit so that he can at any time dismiss his assistant without being obliged to assign any cause or give any hearing; it might be simply because they had ceased to be harmonious, or the collector had become personally disagreeable to the inspector, without in any way failing to perform the duties required by law. But this power of revocation or dismissal is in no way inconsistent or in conflict with or exclusive of the power of removal for cause vested in the city council. On the contrary the very reasons why the inspector might *352 wish to retain his collector in office might furnish the basis of charges leading up to his removal for cause by the city council.
Having thus far determined that the city council had power and jurisdiction to remove the petitioner "for misconduct or incapacity" the question next arises whether the city council could suspend the petitioner from office pending the investigation of charges against him. It has already been shown that the charges preferred against the petitioner were of a very serious character, sufficient, if proved, to warrant his dismissal from office.
It is contended for the petitioner that no such power of suspension, pending charges, existed, and in support of such contention he cites from Throop, Public Officers, p. 394, Sec. 404, as follows: "The weight of authority in this country sustains the doctrine, that the power to suspend an officer does not follow from the grant of power to remove him." But the cases cited in support of this proposition in Throop, and cited also on petitioner's brief, fall far short of establishing any such general proposition.
The case of State v. Jersey City (I Dutch.) 25 N.J. Law, 536, is not in point here. In that case the common council had power by charter to expel a member for disorderly conduct, and it was held that receiving bribes for his official influence and votes was disorderly conduct on the part of a member, within the meaning of the charter. It appeared that the relator (in a motion for mandamus) after a hearing before the common council had been found guilty on charges of bribery and corruption and had been removed from office; that a new election had been ordered; that he had been reelected and sworn in according to law; and that upon his appearing and taking his seat in the common council that body passed a resolution directing that the president should not appoint the relator on any committee, that the clerk should not call his name among the list of members on any action, vote or proceeding, and that he (the relator) should not be allowed to take any part in any debate on *353 any question before the board. It was held that his original conviction and expulsion was proper; but that it did not disqualify him from reelection; that if reelected, he could not be expelled a second time for the same offence, the council by its expulsion having exhausted its power under the charter; that being reelected and in office, there was no warrant for such suspension as was attempted under the resolution; on p. 544, the court said: "It only remains to be considered, whether the action of the common council in resolving that `the president of council be directed not to appoint Tyrrell on any committee, and that the clerk do not call his name among the list of members in any action, vote, or proceeding of the council, and that he be not allowed to take part in any debate on any question which may come before the board of aldermen,' is warranted by law. We think it entirely clear that it is not. This proceeding amounts to a suspension of the relator from the exercise of his official duties, as a member of that body. It leaves his constituents unrepresented and without remedy. Expulsion creates a vacancy that can be supplied by a new election. Suspension from the duties of the office creates no vacancy; the seat is filled, but the occupant is silenced. The charter vests no such power in the council; it would be extraordinary if it did. The power is to expel, not to suspend."
We have quoted this case at some length because it has often been cited (as in this case) to the general proposition that the power to expel does not include or imply a power to suspend. It is not an authority to that effect. The extent of its authority is, in strictness, that the council had exhausted its power of expulsion, that it had no power to expel at the time when it attempted to suspend, and that the suspension would result in leaving a political constituency unrepresented and without remedy. It does not go to the extent of saying that a suspension, pending charges and while the right to expel still existed, would not be proper.
The case of Gregory v. Mayor, etc.,
Some other cases cited for petitioner apparently upon this point have no bearing.
We find a more comprehensive and discriminating statement of the law upon this point in 29 Cyc. p. 1405, as *355 follows: "Where no express power to suspend has been granted, the courts do not recognize that the power is included within the arbitrary power to remove, for the exercise of the power to suspend will produce an interregnum in office. The ends of discipline in such a case may be sufficiently subserved by the exercise of the power of removal, and do not require the recognition of a power to suspend. But where the power of removal is limited to cause, the power to suspend, made use of as a disciplinary power pending charges, is regarded as included within the power of removal."
The earlier portion of the above statement refers by note to the cases last above cited; while the last sentence is supported by the cases next referred to.
In State v. Police Commissioners, 16 Mo. App. 48, 50, the court held that the commissioners had authority pending a trial on charges to suspend the chief of police, saying, p. 50: "The suspension of an officer, pending his trial for misconduct, so as to tie his hands for the time being, seems to be universally accepted as a fair, salutary, and often necessary incident of the situation. His retention, at such a time, of all the advantages and opportunities afforded by official position may enable and encourage him, not only to persist in the rebellious practices complained of, but also to seriously embarrass his triers in their approaches to the ends of justice. In the absence of any express limitation to the contrary, and none has been shown, we are of opinion that, in cases where guiltiness of the offence charged will involve a dismissal from office, there is, on general principles, no arbitrary or improper exercise of a supervisory authority in a suspension of the accused pending his trial in due and proper form."
In State v. Megaarden,
In view of these authorities and of the nature and circumstances of the case at bar, and in view also of the express power of removal conferred upon the city council, we are clearly of the opinion that said city council had the power to suspend the petitioner pending the investigation of the charges against him, and that such suspension was within its jurisdiction.
The final question for our determination is whether or not the city council has taken the proper procedure for the removal of the petitioner. It appears from a record of proceedings which is certified by the city clerk and is before us upon the petition for a writ of certiorari, that prior to June 30, 1913, some investigation of the milk department had been made by the aldermanic committee on milk upon certain complaints and that a report thereof was made to the board of aldermen by the committee on milk recommending the formulation of charges and the appointment of a joint special committee to try the questions involved; consequent upon this report and recommendation, which was received and approved by the board of aldermen, June 30, 1913, special meetings of both branches of the city council were duly called by the mayor and were held July 8, 1913, at which time the several joint resolutions herein set forth suspending Scott, the inspector, and the petitioner, and appointing a joint special committee for the investigation of the charges presented against them were duly passed in concurrence and approved by the mayor. It further appears that this joint special committee of investigation, after due notice to the petitioner and other parties in interest, met as directed by the resolution, on July 14, 1913, and, after being duly organized, proceeded with their duties; and that the petitioner and other parties in interest were *357 present and were represented by counsel; that said committee proceeded to hear testimony relative to the charges both in support thereof and in defence thereto, and continued to hear such testimony at forty successive hearings until October 14, 1913, when the testimony was closed; that the petitioner was given full opportunity to present all such testimony in his defence as he saw fit to introduce (and there was a great deal of it); that after the close of the testimony full opportunity was given at three successive hearings for the argument of counsel, and that the petitioner's counsel was fully heard; that thereafter the committee took much time for consideration and finally reported fully to the city council, accompanying the report with a transcript of all the proceedings and the evidence, and its findings thereon, and its recommendations, in accordance with the resolution of appointment. They found the petitioner not guilty of the first four charges of misconduct with certain specifications of negligence and inefficiency, for the reason that, while they believed that the facts enumerated were proved, they did not believe that he was the person who should be held responsible therefor; and they found him guilty of the remaining charges involving graft and corrupt conduct in office, and recommended his removal for misconduct. This report was presented to a special meeting of the common council duly called and held for the special purpose of receiving the report, on December 26, 1913, at which thirty-six members were present; the report with the accompanying transcript of the testimony and exhibits was presented, the report was read and the same, with the transcript of testimony and the exhibit evidence, was ordered to be communicated to the board of aldermen; and the resolution above set forth requiring the petitioner to appear before the city council on December 30, 1913, to show cause why he should not be removed from office was duly passed, the roll call showing thirty-six members voting in the affirmative and none in the negative. *358
The board of aldermen on the same day met in special meeting duly called and held for the same purpose, the mayor and all of the aldermen (10) being present, the said report with the transcript of evidence and exhibits, being duly communicated to the board from the common council, was upon motion received by the board and the report was read by the clerk. The board then passed in concurrence the resolution requiring the petitioner to appear before the city council on December 30, 1913, as hereinbefore set forth, to show cause why he should not be removed from office, the roll call showing ten votes in the affirmative and none in the negative. Both the common council and the board of aldermen adjourned to meet on Tuesday, December 30, 1913, at 6:45 o'clock P.M. It appears that the city sergeant duly served upon the petitioner a copy of said report and of said resolution on December 27, 1913. It further appears that the petitioner having filed his written protest as set forth in his petition, the same was presented to the common council at its meeting of December 30th, and was read and received and ordered communicated to the board of aldermen; that said protest was thereupon communicated to said board, and was there read and received; that both branches of said city council met according to adjournment on December 30th; that they went into convention for the purpose of hearing said petitioner and Walter O. Scott, inspector of milk, in accordance with said resolutions of December 26th; that the convention met at seven o'clock P.M., in the chamber of the common council, the time and place provided in said resolution for the purpose of hearing said petitioner and said Scott; that there was present the mayor and ten aldermen, being the entire board of aldermen, and thirty-six members of the common council out of a total number of thirty-eight, being much more than "two-thirds of the members elected;" that the mayor, as presiding officer of said convention, after the clerk had read the resolution requiring the appearance of said Chance and Scott to show cause, etc., inquired if said *359 Chance or his counsel or Scott or his counsel were present and ready to proceed; and it appears that they failed to respond, and that some time was allowed to elapse awaiting their appearance; that they or either of them did not appear and the joint session at 7:15 P.M., dissolved; the board of aldermen then reassembled in session in its own chamber, and the common council reassembled in session in its chamber; whereupon the joint resolution last above quoted finding said Chance guilty of certain misconduct and removing him from his said office was presented to the common council and was read and passed, there being present thirty-five members out of a total of thirty-eight, all of said thirty-five voting in the affirmative, and none voting in the negative, it thus appearing that more than two-thirds of the members elected voted in the affirmative; the said resolution was then forthwith communicated to the board of aldermen, then in session, the mayor and all of the aldermen (10) being present, and said resolution was passed in concurrence, all of the aldermen voting in the affirmative, it thus appearing that more than the required two-thirds voted in the affirmative, and none in the negative. No question is raised by the petitioner as to the regularity of any of the meetings or of the proceedings at such meetings of either branch of the city council, or of the convention; and so far as the record before us discloses they all appear to have been regular and lawful meetings.
But the petitioner strenuously contends that he was tried before a committee; that he was found guilty by the committee; that the city council simply accepted the report of the committee, and acted thereon without any evidence being placed before it; that no evidence was taken before the city council itself; that he had the right to have the witnesses for and against him produced and examined before the city council itself, or at least before two-thirds of the members; that the city council had no power to delegate to a committee composed of some of its members its powers to try and convict him and to remove him from office; and, therefore, *360 that the action of the city council in finally removing him from office was taken without any lawful hearing and was null and void.
There was no delegation of power to the committee to try and sentence the petitioner; the resolution appointing the committee defined its powers, as follows: "Said joint special committee shall hear and receive the evidence presented in support of and against the accompanying charges against two officers of the milk department of the city, namely, Walter O. Scott, Inspector of Milk, and Baylies R. Chance, Collector of Samples, which charges, as recommended by the committee on milk to the board of aldermen, have been formulated by the law department; and said joint special committee shall cause said evidence to be taken stenographically, transcribed and with any documentary, book or other exhibit evidence in any form received by said committee to be filed with either branch of the city council, and therewith said committee shall submit to the city council its report relative to such charges and evidence, its findings thereon and its recommendations, for such further action as the city council may determine. Said committee may cause the transcribed evidence to be printed, and printed copies thereof to be also filed as aforesaid for the use of the city council, and may make its report in print."
The record, already briefly recited, shows that the committee explicitly obeyed these directions, had the testimony taken stenographically by sworn stenographers and transcribed, and that all this evidence so transcribed was submitted to both branches of the city council with the committee's report; that both the original transcript and printed copies thereof had for four days been before the city council as a whole at the time (December 30th) when its meeting in joint session was held for the purpose of giving the petitioner a hearing and when he failed and refused to appear and to avail himself of the opportunity; and the final joint resolution of the city council passed in concurrence December *361 30, 1913, after such joint session and petitioner's failure to appear, recites "That after considering the evidence presented relative to the charges against Baylies R. Chance, Collector of Samples of Milk, accompanying joint resolution of the city council No. 281, approved July 8, 1913, the city council finds," etc., as hereinabove fully set forth. The only powers of the committee were to hear evidence and report its findings and recommendations, "for such further action as the city council may determine." The petitioner was entitled to be heard before the city council as a whole upon all the evidence before them; the city council gave him the opportunity to be heard, he refused on the ground that they had no jurisdiction over him. It is not for us to assume that the city council would not have given him a full and fair hearing; nor can we assume as the petitioner urges us to do that the members did not fully and fairly consider the evidence as it was their duty to do, and as they had full opportunity to do, and as the recital in the final resolution of removal shows that they did. If the petitioner had desired to insist that the members should more fully consider the evidence before them, he had opportunity, by himself or his counsel, to have argued at length thereon and to have called their attention to any and all parts thereof in detail as he did at the final hearings before the committee.
As to the contention of the petitioner that all of the witnesses should have been produced and all of the evidence should have been taken in presence of the entire city council as a body, we find no ground either in reason or authority to support such contention. It is quite customary in all kinds of investigation of matters to be finally acted upon by legislative bodies, that committees of investigation are appointed to receive evidence and to report the same to the legislative body for its action thereon.
Thus, in 2 McQuillin, Municipal Corporations, p. 1351, § 615 (McQuillin Municipal Ordinances, § 123): "Provision is usually made in the organic law of the corporation, or *362 by ordinance or other regulations, duly adopted in pursuance thereof, for the creation and constitution of committees, to assist the legislative body in the performance of its proper duties, as in the collection of facts and information which are generally embodied in reports. This method of performing portions of the public business is not forbidden and has often been sanctioned by judicial decisions. The rule appears to be well established that certain municipal duties may be performed by agents or committees. Thus, the council may refer applications for the location or alteration of streets to a committee to examine into the matter and report to the council. So, where the council is the sole judge of the election of its own members, upon the institution of a contest, a committee may be appointed to take testimony and report to the council."
Again, in Throop on Public Officers, § 385: "Rights of accused at trial or hearing. As we have already shown, where the statute requires, expressly or impliedly, a hearing or trial, as distinguished from a mere `explanation,' the charges must be proven by testimony, and the accused has the right to cross-examine the witnesses produced to sustain them, to produce witnesses in his defence, and to be assisted by counsel. It is not essential, that the testimony should be taken before all or a quorum of the members of the board, which is to act upon it; it may be taken by a stenographer, in the presence and under the direction of one of the members, and afterwards written out and submitted to the board, so as to form the basis of the judgment of the board; and the validity of the removal is not affected by the fact that the member, under whose direction it was taken, was not present, when it was so submitted and acted upon by the board; or that he had then ceased to be a member of the board."
Again in Section 393, Throop says: "And the corporation can lawfully appoint a committee to examine into the complaint, and to receive evidence and report thereupon and may remove the officer upon the report and evidence." *363
Cooley's Constitutional Limitations, 6th ed. p. 161: "Each house must also be allowed to proceed in its own way in the collection of such information as may seem important to a proper discharge of its functions, and whenever it is deemed desirable that witnesses should be examined, the power and authority to do so is very properly referred to a committee, with any such powers short of final legislative or judicial action as may seem necessary or expedient in the particular case."
And it is not because, in all cases, there is a definite statute or ordinance, expressly authorizing the reference to a committee in the particular instance under discussion but many of the decisions rest upon the ground of general convenience or expediency in the practical conduct of matters cognizable by legislative bodies.
In State ex rel. Salmon v. Haynes,
We see no reason why the procedure of reference to a committee to take testimony and report the facts approved in the last quoted case in the matter of a contested election of a member, is not equally applicable upon principle in the case at bar.
Few cases are cited by either party to the case at bar which directly apply to the point here under discussion, and such has been the diligence of counsel that we presume they have cited all they could find. The case most nearly covering this disputed point is that of Osgood v. Nelson, 41 L.J.Q.B. (N.S. 1872) 329, a final decision by the House of Lords and a leading English case; where it appeared that by virtue of a certain act of Parliament the chief clerk of the London (City) Small Debts Court was to be appointed by the mayor, aldermen and commons; and it was lawful for them, in case of the clerk's inability or misbehaviour, or for any other cause which might appear reasonable to them, the mayor, aldermen, and commons, to remove such clerk. Upon charges of misconduct in office against said clerk, which were brought before that body, elsewhere in the opinion called the "Court of Common Council," the matter was referred to a committee for them to inquire into it and report upon it. The committee gave several hearings at which all parties in interest were present, heard the testimony of all the witnesses who were produced, had the same stenographically taken and heard arguments of counsel; the transcript of the evidence and proceedings was before the committee and was carefully considered; and the committee reported to the council that they found the clerk guilty as charged. The evidence taken before the committee was printed and distributed to the members of the council, the report with transcript of evidence was duly filed and the accused clerk was duly notified and furnished with a copy of the report and allowed to inspect and take copies of the evidence, and he was ordered to show cause on a certain *365 fixed date before the Court of Common Council (equivalent to our city council) why he should not be removed from office. Further time was given at his request, he finally appeared by counsel and was heard; and thereupon after deliberation, the following resolutions were passed:
"Resolved, that in the opinion of this court the duties of chief clerk or registrar of the Sheriffs' Court, have not been properly discharged by Mr. Osgood.
"Resolved, that this court having carefully considered the evidence as to the manner in which the duties of the office of chief clerk or registrar of the Sheriffs' Court, have been discharged by Mr. Osgood, is of opinion that reasonable cause exists for his removal from his said office, and this court doth hereby remove him accordingly."
Among other questions raised and determined, which need not be here stated, substantially the same point, now under consideration in the case at bar, was raised, viz.: that the power of a motion had not been properly exercised because the inquiry had been conducted before a small portion of the corporation, and the corporation was not entitled to delegate to a select body, such as the clerk's committee, the authority conferred upon them, (p. 333); in the earlier stages of this case this contention was overruled in the Court of Queen's Bench (p. 334 by Cockburn, C.J.); in the Exchequer Chamber the judgment of the Court of Queen's Bench was affirmed; on error to the House of Lords, judgment of the Exchequer Chamber was affirmed. Upon the point here under discussion, the House of Lords speaking through Martin, B., said, p. 335: "The next objection taken was that amotion did not take place, as the law required, on the authority of the lord mayor, aldermen and commons, but by delegation. Now, in our opinion, there was no delegation at all — nothing of the kind. What was done was, that a complaint having been made to the body which had control in the matter, viz.: the mayor, aldermen and commons of the city of London, as to the conduct of Mr. Osgood, it was referred by them to a committee, *366 which seems to have been long used in the Corporation of London, known as the `Officers' and Clerks' Committee;' and what they were directed to do was to make enquiry, with reference to the alleged complaint, to take evidence and to ascertain the truth of it, not for the purpose of that committee coming to any judgment or decision themselves, but for the purpose of their report being submitted to the mayor, aldermen and commons, in order that they might come to a judgment upon it. The argument of the learned counsel is erroneous in point of fact. That has not taken place which they allege to have taken place, and therefore there was no delegation."
And p. 340, Lord Colonsay says: "I quite agree with the observation made by the learned Baron, that there was no violation of the rule of delegation in this case. The mode adopted was the mode in which such enquiries are ordinarily considered, and necessarily conducted by such a tribunal. What was the course which was stated to have been requisite? It was that after this committee had made their report, if they did make such a report, there should have been an assembling of the common council, there should have been a prosecutor appointed, and there should have been a new trial, with all the formalities of a criminal trial, before they could have arrived at a conclusion. But the committee of enquiry into this matter, having made their enquiry in the ordinary way, having collected their evidence in the ordinary way, and allowed the party who had been present at the collecting of that evidence, to state his case by counsel, I cannot conceive a more fair mode of proceeding."
The criticism of the case of Osgood v. Nelson, supra, which has been attempted by petitioner's counsel, that it is of no weight as authority here, because the power of the Court of Common Council of London to remove officers may have been derived from prescription or custom or other obscure source is not warranted by the facts; since it clearly appears at large in the opinions, that its powers of amotion were derived from express statutory authority; and its *367 procedure was fully approved as having afforded a full and fair opportunity to the officer charged with misconduct to be heard in his defence.
Certain other cases are cited on behalf of the respondents, relating to certain rules of police commissions in New York City, where by such rules, adopted by the commissioners under their general discretionary powers to adopt rules for the conduct of the police department, it was provided that upon charges made against a member of the police, testimony might be taken before one commissioner or a deputy, and reported to the commissioner or board of commissioners, who should thereupon give a hearing to the accused party, and who alone could convict and punish. It has been frequently held that such rules were a proper exercise of discretion vested in the commissioners under the law, and that the evidence so taken before one commissioner could properly be submitted to and considered and acted upon by the full board of commissioners, although the witnesses were not produced before them. See People v. Board,
We cite these cases simply to show that it has been found to be a reasonable rule, in relation to inquiries by a board of public officials, into charges of misconduct, that the evidence may be taken before one of such officials and reported to the board for their action; and that it is not the right of the accused person under such circumstances, that all of the witnesses must be examined before the full board. Such a recognition of what is reasonable in such cases, is of some weight in determining whether the petitioner in this case has had a fair opportunity to be heard in his defence.
We find no case cited on behalf of petitioner which supports his contention upon this point.
In City of Jacksonville v. Allen,
In Chicago v. People,
In Andrews v. King,
Charles v. City of Hoboken,
People v. Hamilton, 82 N.Y. Supp. 884, involved the attempted removal of a docket comparing clerk in the office *369 of the county clerk of New York County. The proceedings for removal were taken under statutory authority before a deputy clerk who heard the evidence and himself had power to remove. He reported the evidence to the county clerk, who had not heard the witnesses; and who made an order of removal without notice to the accused and without giving him any opportunity to be heard. The removal was held to be illegal on grounds which have no special bearing here. It was held that the deputy clerk who heard the evidence should have acted in the matter of removal.
No case in this state has passed directly upon this question. In Maroney v. City Council of Pawtucket,
We are clearly of the opinion that the method of procedure adopted in this case was a reasonable and proper method, on the part of the city council, of gathering the evidence and bringing it before that body for its consideration and determination. It is not to be expected or required that a body like the city council, which has under the charter important legislative and administrative functions in the conduct of the affairs of the city and the members of which are men of business necessarily requiring time for their own affairs, should sit as a whole for the purpose of listening to all the witnesses produced in the course of a protracted investigation of this character; while it is proper that they should do so, if they see fit, in our opinion, the method of reference to a committee, to take the evidence and report, was an orderly and proper method well calculated to arrive at just results and in fact gave to the petitioner a better opportunity to present all of his evidence and to be heard at length thereon than would have been possible if the whole city council had sat as a body during all of the forty-three hearings. The language of Cockburn, C.J., quoted in the case of Osgood v. Nelson (supra), 41 L.J.Q.B. (N.S. 1872) 329, at p. 333, is quite appropriate in this connection: "It is true that the Court of Common Council did not themselves hear the evidence, but that arose from the circumstances of the case. Where there is a tribunal of some 360 persons, you cannot expect them to sit down altogether whilst a long enquiry of several days goes on. But the facts of the case must be submitted in some way to those who have to decide it; and the evidence having been printed and circulated *371 amongst all the members of the council, we must take it that those gentlemen did not come to the council to discharge so important a function as that of determining on the dismissal from his office of a gentleman like Mr. Osgood without having examined that evidence so submitted to them."
It is contended on behalf of the petitioner that although the respondents have brought before this court the numerous printed volumes of testimony taken before the committee, and which were placed before the members of the city council prior to the time when the petitioner had his opportunity to appear and be heard, such testimony is no part of the record before this court, although certified with the record by the city clerk. It is true that it has been held by this court that, upon proceedings incertiorari, the evidence taken before the inferior tribunal forms no part of the record proper and that "the purpose ofcertiorari is to correct errors of law, and not to review findings of fact." Maroney v. City Council of Pawtucket,
The appeal from the judgment of the Superior Court denying the writ of mandamus (in the first case) is dismissed, the judgment of the Superior Court is affirmed and that case is remanded to the Superior Court for further proceedings.
The petition for a writ of certiorari (in the second case) is denied and dismissed.