127 Va. 116 | Va. | 1920
delivered the opinion of the court. .
The facts necessary for an intelligent understanding of this case may be briefly stated.
“Officer M. F. Lumpkin,
“City.
“Dear Sir:
“You are hereby summoned to appear at Police Headquarters, Wednesday morning, December 24, 1919, at 10:00 o’clock to answer the following charges now pending against you:
“Charge: Conduct unbecoming an officer and gentleman.
“Specifications: That in violation of the rules and regulations of the police department Officer M. F. Lumpkin did, within the twelve months last past, enter into an agreement to accept and receive from one L. B. Stem the sum of one hundred ($100.00) dollars, more or less, as a consideration for obtaining for him from the police court of this city one trank, the property of W. T. Herman, the brother-in-law of the said L. B. Stem; the said trunk having been seized on the 23rd day of November, 1918, by the said Officer M. F. Lumpkin and Officer J. A. Waters, when found to contain seven quarts of ardent spirits, which was being transported into this State in violation of the prohibition law, and delivered to the police court of this city on the 19th day of December, 1918; and that in accordance with said agreement the said Officer M. F. Lumpkin did obtain the said trunk for the said L. B. Stem and accept and receive the said sum of one hundred ($100.00) dollars, more or less, for performing such service and appropriate the same to his own use.
*120 “Wit: L. B. Stem, 100 Virginia street.
Ira Stern, 100 Virginia street. ■ ' ‘
Miss Ether Moseley, 100 Virginia street.-
Berkley Goode, 15th and Main streets.
J. J. Crutchfield, police justice.
W. A. Shields, police court.
Col. W. M. Myers, city hall.-
Lieut. A. C. Holt.
“You will have present at this time such witnesses as you desire to testify in your behalf.
“C. A. SHERRY,
' “Chief of Police.”
This suspension of the defendant, Lumpkin, was' ordered by the director of public safety of the city of Richmond, and the notice cited, supra, was designed to advise the defendant in detail of the-nature of the charges preferred, and to give him an opportunity to present his defense through witnesses-of his own choosing.
The hearing of the inquiry on the charges and specifications, for reasons that need not be stated in this connection, was postponed from time to time, the day finally set being December 31, 1919. Prior-to that date the defendant, Lumpkin,- applied to the Honorable E. H. Wells, judge of the Hustings Court, Part II, of the city of Richmond, for a writ of mandamus, praying, .first, that he be restored and reinstated as an active member of the said force; second, that the said C. A: Sherry,' chief of police as aforesaid,'be commanded to refrain from holding himself out as authorized and empowered to suspend and remove the defendant from-the said force; and, third, that all proceedings which shall be had in- this cause on said charges, marked Exhibit A, be had in conformity with, and according to, the mandate of section 120 of the' Constitution of Virginia and the laws in pursuance thereof.
After hearing argument upon this application for a writ of mandamus, the hustings court declined either to re
The plaintiff in error, the said Sherry, insists that the suspension of the said defendant, and his citation to appear and produce witnesses, were within the scope of his lawful powers, derived directly from the statute laws of Virginia, and were not in contravention of the Constitution. Further, that under existing law, subject to the approval of the director of public safety, the plaintiff in error had the' absolute power to suspend, or remove, the' defendant. He denies that this absolute power of suspension and removal was ’ abrogated, or in any wise diminished, by his voluntary action in affording to the defendant in error an opportunity to produce witnesses to testify in his behalf upon the charge preferred. ■
The defendant in ' error ■ maintains that the mayor of Richmond enjoys the exclusive power to suspend, or remove, á member of the police force, and insists that in a case of removal, reasonable notice must be given to the officer complained of, and a formal trial conducted,'-with the incidental right to the officer to be heard in person, or by counsél, and to present testimony in his defense. The solution of these conflicting claims requires an examination of the Constitution and laws, respectively, cited and relied upon by the plaintiff in error and the defendant in error.
“The mayor shall see that the duties of the various city officers, members of the police and fire departments, whether elected or appointed, in and for such city, are faithfully observed * *. He shall also have power to suspend such officers, and the members of the police and fire departments, and to remove such officers, and also such members of said departments, when authorized by the General Assembly,- for misconduct in office, or neglect of duty to be specified in the order of suspension or removal; but no such removal shall be made without reasonable notice to the officer complained of, and an opportunity afforded him to be heard in person, or by counsel, and to present testimony in his defense. From such order of suspension, or removal, the city officer so suspended, or removed, shall have an appeal of right to the corporation court * *
It will be noted that this section gives the mayor of a city the power to suspend such officers (that is, the city officers), and the members of the police and fire depart- . ments, and the further power to remove such officers, and also the members of said departments, when authorized by the General Assembly. The mayor derives his power to suspend the persons described, and to remove such officers, that is the city officers, directly from the organic law. But this instrument does not give him the power to remove members of the police and fire departments. This power, by the very language of the section, must be derived from the General Assembly.
The General Assembly possesses all the sovereign powers of a free people not clearly and necessarily taken from it by the Constitution. The language of the section cited, supra, is not a grant of power, but a reference merely to the exercise of an existing legislative power, namely, the power of legislative control over the police force of the several cities of the Commonwealth. In this view of the situation, the power of a mayor to remove a policeman, if it exists at all, must be derived from some act, or acts, of the General Assembly, subsequent to the Constitution. There are three acts proper to be cited in this connection, to-wit: section 1033 of the Code (1904), the act of March 4, 1916 (Acts 1916, p. 176), and the act of March 6, 1918 (Acts 1918, p. 180).
The charter act of 1918 consolidated authority and responsibility in the hands of the mayor and six departments, one of these departments being the department of public safety. Subject to the confirmation of the council, the mayor is empowered by this act to appoint a director of public safety. This director is charged with the management and control of the police department, and is given power to appoint a chief, who is removable at his pleasure (see sec. 86). Further, he is authorized to formulate and promulgate rules and regulations for the police force. The chief of police is authorized to appoint the members of the police force, subject to the approval of the director.
Section 86, in part, is as follows: “The terms of the officers and the members of the said force shall be during good behavior and efficiency * * * The chief of police shall be responsible to the said director for the discipline and efficiency of the force * * * Any officer or member of the force may be fined by the chief of police for good cause shown, such fine to be deducted from his pay, or may be removed or suspended, subject to the approval of the said director, from the force or reduced in rank when the same shall be, in the judgment of the chief of police, for the good of the service.”
Section eleven of the act of 1918 charges the mayor with the duty of supervising and compelling the performance of duty by all other officers and employees. In order that these duties may be effectively discharged, the mayor is given the power of suspension and removal. The precise language used in this connection is as follows: “He shall have power to suspend any such officers and subordinates,
This language is substantially the language used in this connection in section 1033 of the Code, and fails' to include under the head of officials who may be removed, the members of the police and fire departments. The act of 1918 is the latest evidence of the legislative intent, and the latest exercise of the legislative authority relating to the removal of officials by the mayor of the city of Richmond.
The words “such officers” in section eleven, are considered to refer to city officials, and as the power of suspension is extended in terms to “members of the police department,” the omission to use the words, “members of the police department” when the section deals with-the power of removal, evidently indicates that the power to' remove members of the police department was not intended to be afforded to the mayor by this statute. It has already been pointed out that the bare power to remove city officers would not include policemen, the latter being officers of the State.
In Burch v. Hardwicke, supra, the court held as follows: “This court has been repeatedly called upon to pronounce legislative enactments void on the ground of their repugnance to the Constitution, and it has always declined to do so, unless this repugnancy is, in its judgment, beyond all reasonable doubt.”
In Ogden v. Saunders, 12 Wheat. 212, 6 L. Ed. 606, cited in Cooley’s Constitutional Limitations, the court declared that “it is but a decent respect due to the wisdom, integrity and patriotism of the legislative body by which any law is passed, to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt.”
This court is not satisfied that section 86.is plainly repugnant to the Constitution; on the contrary, it regards the act as a valid exercise of legislative authority. The corollary of this conclusion is that the chief of police is lawfully vested with the power to remove or suspend a member of the police force, subject always to the approval of the director of public safety.
In our view there is no incompatibility. The bare grant of power to the mayor to suspend a member of the police department, affords no ground for the conclusion that the Constitution thereby intended to exclude the General Assembly from lodging a like power in some other official. It is altogether proper that the mayor, as the executive head of the city, should possess the authority of suspension, but the exercise of a like authority by another official is in no wise, in our view, incompatible with good government or the Constitutional intent. There are many obvious, indeed, imperative reasons of public interest why this authority should be confided to the chief of police.
Apart from the weighty effect of the decision cited, it is evident that under section 86 of the act of 1918, quoad the chief of police of the city of Richmond, provided his action is approved by the director, the tenure of the members of the police force is at will. By the express terms of section 86 it is provided that the chief of police, subject always to the approval of the director, may remove a policeman whenever the same shall be, in the judgment of the chief, for the good of the service. Enjoying this absolute power, the chief of police is not required to proceed by formal trial to effect a removal. It is true that in the instant case the chief of police issued a citation to the defendant, Lumpkin, to appear on a day, and at a place named, to answer the charge and specifications set out in the citation. Further, the defendant was given the opportunity to produce at the hearing “such witnesses ' as he might desire to testify in his behalf.” In the view of the learned judge of the hustings court, this action of the chief of police in preferring a specific charge against the defendant, in giving him the opportunity to summon witnesses,
For the foregoing reasons, we are of opinion that the judgment of the Hustings Court, Part II, of the city of Richmond should be reversed, and the petition of the defendant in error for a writ of mandamus be dismissed.
Reverse<%.