State ex rel. Arnold v. Common Council

157 Wis. 505 | Wis. | 1914

Lead Opinion

The following opinion was filed May 1, 1914:

ViNJE, J.

Two main questions are raised upon the appeal of the relator.' First, Did he have the hearing which the charter of the city of Milwaukee and the law provide for; and if so, second, Did the evidence in any reasonable view thereof sustain tbe finding of the common council affirmed by the circuit court ?

Sec. 7 of ch. XIX of the city charter provides that “a majority of all the members-elect of the common council shall have power to dismiss from office, for malfeasance in office in said city, any person elected or'appointed to office in said city, except justices of the peace. And the common council shall provide by ordinance the manner of. hearing and disposing of complaints against such officers.” Sec. 8 of the same chapter is entitled “Investigation of charges of official, misconduct,” and in substance provides for the appointment of a committee to investigate and report upon the charges preferred -under the section with power to take testimony and administer oaths. The next section provides for the sub-porna of witnesses and penalty for perjury. Counsel for relator make a strong argument that secs. 8 and 9 have no relation to sec. 7 and cannot be resorted to in aid of the validity of an investigation for malpractice under sec. 7. Whether such argument is well founded need not now be determined. Sec. 7 provides that the common council may by ordinance provide the manner of hearing and disposing of complaints under said section, and ch. XVI of the General Ordinances, set out in the statement of facts, was evidently enacted in execution of such delegated power, and it appears that the common council attempted to proceed under the provisions of sec. 7 and the ordinance enacted in pursuance thereof. So it becomes needless to inquire into the -effect of secs. 8 and 9 of ch. XIX of the city charter.

It is obvious from the provisions of sec. 7 that the power to remove an officer of the city is vested in the common council. It is equally obvious that by direct implication at least such section also provides for a hearing of the charges against the accused. Upon familiar principles the power given the common council to remove cannot by it be delegated to another body nor to a committee of its own members. Such power must be exercised by itself. Darmstatter v. Passaic, 81 N. J. Law, 162, 165, 79 Atl. 545; 28 Cyc. 440, 441; 2 Dillon, Mun. Corp. (5th ed.) § 480; 2 McQuillin, Mun. Corp. § 568. And where, as here, the removal is for cause, the proceeding is quasi-judicial in character and, in the absence of controlling provisions to the contrary, the substantial principles of the common law affecting private rights must be observed. Ekern v. McGovern, 154 Wis. 157, 142 N. W. 595; People ex rel. Keech v. Thompson, 94 N. Y. 451, 465; 2 Dillon, Mun. Corp. (5th ed.) § 480. The charter, therefore, as well as the law- applicable to the proceeding, accorded to the relator the right to a hearing before the body vested with the power to remove.

The relator claims he was denied a hearing in two respects: First, because the evidence was not taken before the common council, but before a committee thereof, and second, because he was denied the right to be heard by the common council by attorney before it acted upon the report of the committee. The first challenge of the regularity of the proceedings we hold not well taken. It is a familiar practice in legal proceedings to refer the taking of evidence to a referee or person-other than the court and to report such evidence as well as the conclusions of the referee or person taking the evidence-thereon to the court to act upon. Evidence so taken, reported, and acted upon by the court must in contemplation of law be deemed taken before the court. The necessity of so-taking testimony by courts is quite apparent to those conversant with judicial proceedings. Much more so was there-a necessity for the appointment of a committee to take the evidence in this proceeding. Over 400 printed pages of testimony are reported to this court, the taking of which, with intermissions, required weeks of time. It was not practicable for all the members of the common council to devote so much time to it. All the evidence taken was read to the-common council before it acted upon the report of the committee. It must therefore, in contemplation of law, he deemed to have been taken before the common council, and .that in this respect the proceeding was regular.

The repeated refusal of the common council to grant either •the written or oral request of the relator to hear his counsel before acting upon the report of the committee stands upon a different basis. There are at least three substantial elements -of a common-law hearing: (1) the right to seasonably know the charges or claims preferred; (2) the right to meet such •charges or claims by competent evidence; and (3) the right to be heard by counsel upon the probative force of the evidence adduced by both sides and upon the law applicable thereto. If either of these rights is denied a party, he does not have the substantials of a common-law hearing. Ekern v. McGovern, 154 Wis. 157, 277 et seq., 142 N. W. 595, and cases cited. That the word “hearing” includes oral argument is expressly ruled by the following cases: Miller v. Tobin, 18 Fed. 609, 616; Joseph D. G. Co. v. Hecht, 120 Fed. 760, 763; Merritt v. Portchester, 8 Hun, 40, 45; Babcock v. Wolf, 70 Iowa, 676, 679. See, also, Akerly v. Vilas, 24 Wis. 165, 171. Indeed, the idea of the right of a person •to he heard by himself or counsel when his property or his personal rights are questioned was so early and. firmly imbedded into the groundwork of our jurisprudence that it is •difficult to find instances where it has been challenged even in guosi-judicial proceedings. The importance and value of •such right is considerable in nearly every case. It is the office of counsel to marshal the facts proven, to point out their relative importance, and to interpret them in the light of the law applicable thereto. When this is properly done the judicial mind is enlightened and is in condition to decide the ■questions presented with full knowledge of the facts and the law involved. Its importance in the present proceeding is •apparent when it is borne in mind that the evidence taken by the committee was very voluminous, was read to the common council at a number of different sessions separated by com siderable intervals of time, and was wholly circumstantial in character. The right of the relator either personally or by counsel to argue the evidence and the law to the common council, which body alone had the right to remove, is unquestioned. That the denial of such a right was prejudicial follows from what has been said. Nothing herein contained must be construed to question the right of the body before whom a hearing is had to reasonably limit and control the length of time for oral argument. Limitation exercised' in that respect would be judicially interfered with only in case of an obvious abuse of discretion.

The fact that counsel for relator were allowed oral argument before the committee is beside the question. The committee was not the body vested with the power of removal. It could only report the evidence taken with its conclusions thereon to the common council for action. The hearing granted the relator was a hearing before the common council, which alone had the right to remove. The arguments made before the committee were not heard by nor read to the common council. They could, therefore, in no wise aid or influence it in its judgment upon the matter. The committee consisted of five members, the common council of thirty-seven.

, The trial court seemed to be of the opinion that, inasmuch as the common council could by ordinance prescribe the manner of hearing, it could therefore refuse to hear oral argument. In the first place the ordinance is silent upon the question of oral argument before the common council, so it. had not by ordinance prescribed a hearing without oral argument. In the second place, authority to prescribe the manner of a hearing does not include the power to suppress or destroy a substantial constituent element of the hearing itself.

Upon the oral argument the sufficiency of the charges was-challenged. So far as such challenge relates to the charge held proven by the court it cannot be successfully maintained. The accuracy of a legal pleading is not required in such proceedings. It is sufficient if it appears that the officer sought to he removed is fairly informed of the general nature of the charge so that he can meet it upon the hearing. This the first charge did. True, it was not as definite as it could have been made, but the evidence made it definite, and he had ample opportunity to meet the charge made by the proof by counter evidence.

Since we have reached the conclusion that the relator was denied the substantial rights of a hearing secured to him both by the language of the charter and the law otherwise applicable to the removal proceedings, it becomes unnecessary to consider the sufficiency of the proof relating to the charge upon which he was adjudged guilty.

By the Court. — Judgment reversed, and cause remanded with directions to reverse the action of the common council of the city of Milwaukee finding the relator guilty of malfeasance in office and declaring the office vacant.

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Concurrence Opinion

BaRNes, J.

(concurring). I concur in the opinion solely on the ground that I do not think any other, conclusion could he reached that would be in harmony with what is decided in the Bhern-McQovern Case. I did not think that that decision was a correct exposition of the law as it existed before the decision was announced, and I am still of that opinion. However, that case states the law as it is now, and we are all bound to respect it regardless of any opinion that may be entertained as to the correctness of the decision when made.

A motion for a rehearing was denied, with $25 costs, on June 17, 1914.