Hayden v. Memphis, 100 Tenn. 582

Hayden v. Memphis

100 Tenn. 582

Tenn.

1898

Check Treatment

Beard, J.

Wе 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 inferiоr 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, *584that the superior common law- Courts will, on certio-rari, examine the proceedings of municipal corporations, even although there be no statute giving this remedy; and if it be found that they have exceedеd their chartered powers or have not pursued those powers, or have not conformed' to the requirements of the charter or law under which they have undertaken to act, such proceedings will be reversed or annulled. An aggrieved party is, in such case, entitled to a certiorari ex débito justitiai. ”

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 аs 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.”

*585As possibly an extreme illustration of the exercise of this supervisory power, the case of Durham v. United States, 4 Hay., 69, may be referred to where the proceedings of a court martial were brought into thе Circuit Court by this writ, and á judgment assessing a fine was held void.

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 apрlied 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 excеeded 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 exеrcising 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 whethеr “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 *586we do not regard the cases of Wade v. Murray, 2 Sneed, 49, and Tomlinson v. Board, supra, as in the way of this conclusion, for in both of those cases the Court found clear evidence of the intention of the Legislature that the judgments of the special tribunals called in question should not be the subject of review in other and superior jurisdictions; and in each case a sound public policy forbade a revision of the .conclusions severally reached in those cases.

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 аnswer 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 thаt, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍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 testimоny of said Hayden, one B. C. Alsup did, on the thirtieth or- thirty-first of March, 1896, offer to pay money to said Hayden *587for his vote and influence in the question of adopting the plans for the Beale Street Market House submitted tо the council by Alsup & Johnson, and then under consideration by the council, and in that said Hayden, after said' offer to pay money for his vote and influence, failed ■ to report same' to the council, аnd signed a committee report recommending the adoption of the plans submitted by Alsup & Johnson, and at the council meeting voted for the adoption of said plans. The council reaches this conclusion on the testimony of said Hayden, and does not find it necessary to determine whether said Hayden ■ offered to take a bribe from said Alsup, or whether said Alsup offered a bribe to said Hayden.” Upon this finding the board and council thereupon removed Hayden from office and declared his place vacant.

' 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 оr 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 *588Rex v. Richardson, 1 Burr, 517, and has been recognized as sound law in England and America, in many cases. But whether acting upon express legislative warrant or in the exercise of inherent- power, in the matter of amotion, the corporation must act with some degree of conformity to the rules оf the common law. There must first be notice given to the accused of the time when, and the place where, the trial body will meet, in order that he may be present in person, and with his witnesses. This notice may bé dispensed with, as in the present case, by the appearance of the accused, and his answer to the charges. 1 Dillon Mun. Cor. (4th Ed.), Sec. 254. Then “there must be a charge or charges against him specifically stated with substantial certainty, yet thé technical nicety required in indictments is not necessary.” lb., Sec. 255. The text-writers, as well as the decided cases, lay emphasis upon this necessity to formulate chargеs as an essential in all proceedings where the tribunal ' has the power of amotion for cause. 1 £ The power of removal can only be exercised when charges are made against thе accused. ” State v. St. Louis, 90 Mo., 19.

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 effеct 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*589ity that formulated charges- are essential to the regularity of proceedings in such cases, it follows necessarily that -a conviction, in the absence of such charges, or outside of or beyond the purview of those that are made, cannot be maintained. As has already been seen, the specific charges made against Hayden, and the one he was called upon to answer, were that he had offered, upon the payment of money by Alsup & Johnson to him, to secure an acceptance of their plans for the new market house, and he is convicted of the offense, giving the most liberal construction to the finding, of failing to disclose to the common council that a bribe had been offered to him by Alsup for his vote and influence while these plans were under consideration. We think it clear, if the rule requiring specific charges is to be enforced, this is a fatal variance, which necessarily avoids the judgment of the council in this case. But, over and beyond this, we 'think it clear that the judgment of amotion cannot be sustained upon a record such as is here presented. As will be seen, while in the first or preceding part of its record, the council concludes that Alsup did ‘ offer to pay money to said Hayden for his vote and influence,” yet in the last portion it is stated that it is not deemed necessary to determine whether Hayden offered to take, or was offered by Alsup, a bribe. It is apparent that if he neither offered to accept nor was offered a bribe, then this judgment was left altogether without support. No explanation is furnished *590of these inconsistent recitals, and we have not been able to find any satisfactory mode of reconciling them. For these reasons we are satisfied the petition in this cause presented a sufficient cause for the Circuit Court’s issuing the writ of certiorari, and that its duty in the exercise of its supervisory jurisdiction was to have quashed this judgment of the common council.

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.