100 Tenn. 582 | Tenn. | 1898
We have no doubt of the supervisory power of the Circuit Court of Shelby County over the City Council of Memphis in the case presented in this record, and that to determine whether that tribunal pursued legal methods in removing the plaintiff in error as a member of the council, that Court could require, by its writ of certiorari, the record of the proceedings for the removal to be brought before it for a revision.
Mr. Dillion, in Yol. II., Sec. 925 (4th-Ed.), of his work on Municipal Corporations, is abundantly sustained by authority in saying that it is well settled in England that Courts of superior and general jurisdiction will examine, on certiorari, the proceedings of Courts of inferior or special jurisdiction or officers; and in Sec. 925, in stating the unquestionable weight of authority in this country to be, if an appeal be not given or some specific mode of review provided,
This Court has had occasion frequently to recognize the extensive limits of this writ. In Mayor v. Paul, 11 Hum., 248, it is said: “It [the writ] has been adopted by us as the almost universal method by which -the Circuit Courts of general jurisdiction, both civil and criminal, exercise control over all inferior jurisdictions, however constituted and whatever their course of proceeding, as well where they have attempted to exercise a jurisdiction not conferred as where there has been an irregular or erroneous exercise of jurisdiction, and' in criminal proceedings as well as in civil. Instead of' restricting the use of the certiorari to the proceedings of inferior Courts whose proceedings are not according to the Courts of common law, and where, for that reason, a writ of error will not lie, it is held that it lies to remove the proceedings of all tribunals exercising jurisdiction under statutory regulations, whether in a summary way or by a mode of proceedings not- according to common law form.”
Not content, however, with leaving the right to the writ of certiorari to depend upon the principles of the common law, as they had been liberally applied in modern jurisprudence, it was guaranteed to the citizens of this State by -the Constitution of 1834, and again by the present Constitution. In addition, the Legislature has sought to make effectual this constitutional right in Code (Shann.), §§4853, 4854, so that now it is well established in this State that £ ‘ the writ of certiorari will lie upon sufficient cause shown, where no appeal is given, when an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction conferred, or is acting illegally when, in the judgment of the Court, there is no- other plain, speedy, or adequate remedy.” Tomlinson v. Board of Equalization, 4 Pickle, 1.
In the present case we have a municipal board exercising judicial functions in trying and removing from his corporate office one of its members, from whose judgment of- amotion confessedly no appeal is given; it only, therefore, remains to ■ be seen whether “sufficient cause”- is shown by the petition for the issuance of the writ. Before considering this phase of the question, it is proper to say that
Returning, does the petition assign ‘ ‘ sufficient cause ’ ’ for invoking the aid of this writ ? The petition alleged, and having been dismissed- on- motion, its averments must be taken as true, that as a member of the Board of Public Works, and of the Legislative Council, the petitioner was notified that he must make answer to the specific charge that he had offered Alsup & Johnson, architects, to secure an acceptance - by the board and council of their plans for a market house, if they would pay to him $800 in installments, and that this proposition was made by him while the question of the adoption of these plans was still pending, and that in answer to this notice he appeared and made defense; but that, instead of convicting him of the offense thus charged, he was found guilty of an offense not charged, to wit: of “grossly immoral conduct, and of malfeasance in office,” in words following: “According to the testimony of said Hayden, one B. C. Alsup did, on the thirtieth or- thirty-first of March, 1896, offer to pay money to said Hayden
' Was this judgment of amotion warranted?' The provision of the Act of the Legislature under- which this action took place is as follows: “The Legislative Council shall have power to remove either of said Commissioners or either member of the Board of Public Works for malfeasance or misfeasance in office, or habitual drunkenness or grossly immoral conduct.” Acts of 1879, Ch. XI., Sec. 16, p. 27.
While there is this legislative authority given, yet this was not essential, as it is well settled that a municipal corporation' has the incidental or inherent power to make by-laws for the removal of one of its officers for just' cause. This was decided in
And in Howe v. Boston, 142 Mass., 90, it was held that a board of police could not exercise the right of removal without first assigning a cause, and then giving the accused an opportunity to be heard. To the same effect are Denver v. Barrow, 13 Col., 460; Hallegross v. Campbell, 82 Mich., 255; Williard's Appeal, 4 R. I., 595. It being clear on author
The judgment of the Circuit Court in dismissing the petition is reversed, and the judgment of removal pronounced by the common council is quashed by this Court.