116 P.2d 854 | Wyo. | 1941
This is an action in mandamus brought by the relator for the purpose of compelling the defendant, mayor of the City of Casper, Wyoming, to reinstate him in the office of chief of police (marshall) of that city, and for general relief. It appears that relator was appointed to that office in January, 1936, to serve to the end of 1937. He was dismissed from office for incompetency and neglect of duties about May 27 or May 29, 1937. This action was commenced on July 24, 1937. After the filing of several pleadings by the defendant, and the action of the court thereon, the defendant filed a second amended answer on August 17, 1938. A demurrer was filed thereto on the ground that it fails to state a defense. The demurrer was sustained and the defendant electing to stand upon his answer, judgment was entered on April 19, 1940, merely to the effect that "the relator was wrongfully and unlawfully removed from office as marshall or chief of police of the city of Casper, and that the order and notice of such removal were void and of no force or effect." From that judgment the defendant has brought proceedings in error.
1. It is alleged in the second amended answer of the defendant that on June 1st, 1937, three days after formal notice of dismissal was given to the relator, one Will Clark was appointed as chief of police of the city of Casper; that the appointment was confirmed by the city council of Casper; that he duly qualified and ever since that time has been chief of police of Casper and has been paid the salary of the office. It is contended by the defendant that mandamus is not the proper remedy for reinstatement to an office, if another occupies it; that since the occupancy of the office in question by another duly appears by the second amended *315 petition, the demurrer thereto should have been overruled for that reason.
The authorities do not seem to be in harmony. Dillon, Municipal Corporations (5th ed.) Sec. 487, states that if the "person wrongfully removed is a public officer * * * and if the office has been filled by the appointment of another person, the actual incumbent of the office is entitled to be heard, and under the rule that title to office cannot be determined by mandamus, the remedy of the person alleged to have been wrongfully removed is by quo warranto and not by mandamus." High on Extraordinary Legal Remedies (3rd ed.) Sec. 49, states that the "rule may now be regarded as established by an overwhelming current of authority that when an office is already filled by an actual incumbent, exercising the function of the office de facto and under color of right, mandamus will not lie to compel the admission of another claimant, or to determine the disputed question of title." So Mechem on Public Officers, Sec. 346, states that "where an office is already filled by an officer de facto who is discharging its duties, mandamus will not lie to compel the admission of one claiming to be the officer de jure, but resort must be had to quo warranto." A late case on the subject, which cites many other cases, and holds the foregoing rule, is State ex rel. v. Kansas City, (Mo.)
2. Counsel for appellant, however, claim that the question of salary is not involved in this action; that the only question before the court is as to whether or not the relator was legally removed; that since it was too late to reinstate the relator, the case before the court was moot, and should have been dismissed. It is true that the main object of the suit was to restore the relator to office. But the petition asked for reinstatement to office "with all the privileges, prerogatives and emoluments thereunto belonging with all properties and rights of which he has been deprived by reason of the wrongful acts and orders aforesaid." General relief also was asked. This, we think, sufficiently brought the question of salary into the case. Goldsmith v. Board,
3. The relator contends that he was removed from office without notice or hearing, and that, accordingly, the removal was void. Section 22-314, Rev. St. 1931, provides for the appointment of a marshal or chief of police for a definite time, and further provides that "the mayor shall have power to remove any officer appointed under this article for incompetency or neglect of duty." It is silent on the point whether the removal may be made with or without a hearing. It is accordingly contended by appellant that, under such provision, no notice and no hearing was necessary. A number of cases are to that effect. Note 12 Ann. Cas. 995-1000; City of Hoboken v. Gear,
There are some exceptions to the rule that notice and hearing are necessary. Dillon, supra, Sec. 481, states that "if the amotion be for good cause, such as conviction for an infamous crime or the repeated declaration of an officer that he would not discharge the duties of the office, while it would be more regular to give the *321 notice, yet its omission will not entitle him to mandamus to be restored." Counsel for the defendants refer to the fact that in this case the relator, as alleged in the second amended answer, admitted that he was incompetent to perform the duties of his office, and he intimates that such case should come within the exceptions to the rule. We do not think it necessary to decide that point, although such admission, if made, should be taken into consideration in determining as to whether or not the relator was given a fair hearing.
4. As already stated, the relator contends that he was removed from office without notice or hearing. That is denied by the defendant. Relator bases his contention on a letter written by the mayor on May 29, 1937, and sent to the relator, which stated that "I am charging you with incompetency and neglect of duty." We do not, however, think that this statement necessarily negatives a previous hearing. The second amended answer alleges that the letter constitutes merely "formal" notice of removal, and further alleges that specific charges were made against the relator by the mayor on May 25, 1938, and that a hearing was had thereon before him on May 27th, 1938, and that the relator appeared at that time and was permitted to make whatever defense he had. It is not questioned that the charges are such as to furnish sufficient ground for removal, and we shall not take the space to set them out. The notice and hearing are alleged to have been oral. The allegations must be taken as true for the purposes of the demurrer. It seems that the trial court took the view that written notice and charges were necessary, and that the demurrer to the seconded amended answer was sustained on that ground, so far as the foregoing allegations are concerned. We held in Baird v. School District,
There are many cases which have held that notice and charges must be in writing, but they are invariably based on statutes which made that specific requirement, and which in most cases were designed to promote civil service, and prevent dismissal for merely political reasons. The legislature in this state in its session of 1931 (Sections 22-201-204) attempted to make such provision in connection with the removal of members of police departments. But that act was held unconstitutional. McFarland v. City of Cheyenne,
"The act of the legislature in question required the trustees to take an `official oath,' and expressly authorized them to remove the custodian `from office for misdemeanor, incompetency or inattention to the duties of his office.' Secs. 3, 7, ch. 328, Laws of 1882. But the act nowhere requires or suggests that any witness shall be produced, much less sworn and examined, in the investigation resulting in such removal. The act seems to contemplate a summary investigation by the trustees, — of course giving such official an opportunity to be heard. As stated by Mr. Justice Winslow in a case cited by the appellant's counsel:
`The power to remove officers for cause, though to *326 be exercised in a judicial manner, is administrative, not judicial. It is a part of the power of the corporation, which is very useful, in fact almost necessary, for the efficient performance of the corporate duties. In this state the exercise of the power by similar bodies does not seem to have been questioned until now, though the cases have been quite numerous.' State ex rel. Starkweather v. Common Council of Superior,
90 Wis. 619 ."
In State ex rel. v. Kennelly,
"Although the power of removal may be limited by the necessity of assigning some cause, or of informing the officer removed of the cause of his removal and giving him an opportunity for explanation, and stating the ground of removal, the act belongs rather to the field of executive discretion than to that of quasi-judicial finding; and the action of the removing officer complying with the limitation is final. * * * Considering all the provisions of the charter as thus amended, we think the removal of this officer is a mode of exercising this power of removal incident to executive appointment, and that the limitation placed on its exercise is satisfied, possibly more than satisfied, when the mayor has stated to the officer the cause which induces him to contemplate his removal, being a proper and sufficient cause, has given him an opportunity to be heard in relation thereto, and assigns this cause in making the removal."
In People ex rel. v. Higgins,
"Admitting the power of the trustees to remove the superintendent, and the questions still remain, whether they proceeded in a legal manner to make the removal, *327 and whether the removal was made for a legal cause. As to the mode of proceeding, it was insisted that specific and formal charges should have been preferred against the superintendent; that he should have had a formal notice of the time and place of the trial of those charges; that a regular trial should have been had upon the testimony of witnesses, and even that he was entitled to a trial by jury. The statute has made none of these formalities necessary, nor does the common law so interpose and attach itself to the statute as to require them. * * * They are not bound down by any legal rule of evidence, when determining as to the existence of those qualifications for the purpose of making the appointment; nor, on the other hand, are they thus restricted when determining upon the absence or want of certain qualifications, when acting upon the question of removal; they may determine that question upon their own observation, and exercising their own best judgment, as well as upon facts detailed by others, or upon the opinions of witnesses. * * * When the appointment is once made, they are not at liberty to remove him from mere caprice or partiality, but only for infidelity to the trust reposed in him, or for the want of the necessary qualifications to the discharge of the duties of that trust; they are charged with the responsibility of deciding these questions, and of acting upon that decision. * * * If the trustees were supposed to be qualified to pass upon the question of qualification, so as to do justice to the institution as well as to applicants in making the appointment, so also they must be presumed to be capable to pass upon the same question when it arises in relation to a removal. And in the latter case, they must be manifestly better qualified to judge than in the former; for their connection with and relation to the institution, with their means of observation, must enable them to form an opinion more understandingly than in the first instance; and that, too, without the examination of witnesses. This they may do, if they choose, in either case; but we are well satisfied they are not bound to do so. They may act upon their own judgment and their own observation; and whenever they are prepared to take the responsibility of saying that the incumbent does not *328 possess the necessary qualifications for the office, they have the right, and it is their duty to remove him for such cause."
The mayor of the City of Casper is, under Section 22-320, Rev. St. 1931, charged with the duties to take care that the ordinances of the city and the requirements of the statute are complied with. He is the superior officer of the chief of police (or marshall). Upon him devolves the primary duty to see to the peace and quiet of the community. Neglect of police officers are laid at his door. It is highly important that he and the police work in harmony for the good of the community. The supreme court of Oklahoma in Bynum v. Strain,
Reversed and Remanded.
RINER, Ch. J., and KIMBALL, J., concur.