118 P. 706 | Cal. | 1911
The city of Roseville is a city of the sixth class. Oscar L. Legault, petitioner, is or was the duly elected, qualified, and acting marshal of the city. The board of trustees preferred charges against the marshal for dereliction of duty, and cited him to show cause why he should not be removed from office. After a hearing the board of trustees formally ordered the petitioner to be removed from the office of marshal of the city of Roseville. Legault then petitioned for a writ of review, seeking to have it declared that the action of the board of trustees in the premises was in excess of its powers and jurisdiction and therefore void. The trustees interposed a general demurrer to this petition. This being overruled, the petition admittedly setting forth the facts, and the trustees *199 consequently being unable to join issue by denial, they filed no answer, and judgment passed for petitioner as prayed for.
The trustees appeal, and the appeal presents for consideration a single question: Where the charter of a municipality is silent upon the matter, does the corporation, acting through its trustees, possess the power to remove an elective officer of the municipality?
It is not questioned but that the charter in terms confers no such power. But the argument for appellants is that at common law this power was regarded as a necessary incident to the functions of all municipal corporations, that not having been prohibited to this corporation, it exists and is to be exercised with other powers by the board of trustees, and that the provisions of the Penal Code (758-772) must be considered as fixing an alternative and not an exclusive method for amotion of municipal officers.
Since the decision of Lord Mansfield in Rex. v. Richardson, 1 Burr. 539, it has become an accepted doctrine that this power, based upon necessity, is a common law incident to the powers of the English municipal corporations. Considering the nature of the origin of such corporations, resting in some instances in a royal charter, in others on parliamentary grant, and in others on immemorial custom, with rights wrung through stubborn resistance to oppression, it must at once be recognized that the municipal powers of such corporations stand upon an entirely different plane from those of the state of California, where, in every instance, they are measured by the express terms of grants issued directly or indirectly by the state. This is pointed out inHerzog v. San Francisco,
While the question here stated has never been formally presented for determination, this circumstance itself must be construed as in the nature of an admission that throughout the history of the state the power asserted was not supposed to exist. And, indeed, the existence of such power is contrary to the whole trend of judicial decision and legislative enactment. Thus, in Von Schmidt v. Widber,
The necessary deduction to be drawn from this language is that where the legislature, as in this state, has provided a specific form of proceeding for the amotion of officers, the power of amotion within the corporation ceases to be indispensable to the corporation and its exercise by the corporation becomes at the most but a convenience. *202
Moreover, the decisions of this court will be found to rest upon the decided assumption at least that the power of removing municipal officers does not rest within the municipality unless there be an express grant to this end either in the charter or by general law. Thus in Lorbeer v. Hutchinson,
It is inconceivable if the power of amotion of its officers is inherent in a municipal corporation even when its charter is silent on the subject that this court would not long ago have so declared and thus have done away with a vast amount of the argumentative reasoning in which it has indulged and which is and was entirely superfluous if the contention of appellant herein is sound. Moreover, if the power here contended for was inherent in the municipality there would be little or no import to the language of section 16 of article XX of the constitution which undertakes in express terms to make the provisions of a municipal charter controlling with reference to the tenure of office or the dismissal from office of officers and employees of a municipality for, if the power exists as is here contended for, this solemn declaration of the constitution accomplished nothing and at the most was but the recognition of a power already existent.
And, finally, upon this proposition, the legislative enactments have their significance. Section 4386 of the Political Code empowers the mayor "to suspend and with the consent of the common council, to remove any non-elected officer, stating in the suspension or removal the cause thereof." Section 1852 of the Municipal Corporation Act, [Gen. Laws, 1910, Act 2348], which is the governing charter of the city of Roseville, empowers the board of trustees to appoint an "attorney, *204 poundmaster, superintendent of streets, civil engineer and such police and such other and subordinate officers as in their judgment may be deemed necessary and fix their compensation and each of said officers shall hold office during the pleasure of the board." The significance of these legislative declarations is found in this: 1. That they are made applicable to non-elective officers and not to elective officers; 2. If the power contended for inherently exists, it would be stultification for the legislature to provide with careful detail for the removal of non-elective officers when the city itself possesses the inherent power to remove non-elective as well as elective officers.
It is concluded, therefore, that as to municipal corporations within this state the general law touching the removal of its officers creates an implied restriction upon the exercise of what may be thought to be the inherent power of amotion. The necessity for the existence and exercise of that power being removed it becomes at the best but a convenience; the power may be, notwithstanding the existence of the general laws, conferred by charter and when so conferred will be construed, depending upon the nature of the language, as being either concurrent as inCoffey v. Superior Court,
The judgment appealed from is therefore affirmed.
Melvin, J., and Lorigan, J., concurred.