87 Kan. 474 | Kan. | 1912
Lead Opinion
The opinion of the court was delivered by
This action was brought by the state on the relation of the attorney-general to .remove .from office three councilmen of Hurinewell, a city of the third class containing about two hundred inhabitants. The act of 1911 authorizes the removal of any person holding an office of trust or profit “who shall willfully misconduct himself in office, or who shall willfully neglect to perform any duty enjoined upon such officer by any of the laws of the state of Kansas.” (Laws 1911, ch. 237, § 1.) The petition alleges substantially that the defendants conspired' together to oppose the mayor and to refuse confirmation of persons appointed by her to office; that they conducted themselves in an insulting manner at official meetings; that they refused to levy a tax, and arbitrarily refused to confirm the appointment of suitable persons for appointive offices, and by their conduct deprived the city of a clerk, treasurer, marshal and street commissioner, and refused to provide funds for carrying on the city’s business ; that they attempted to hold council meetings in a bedroom of a hotel purposely and as an insult to the mayor.
Without giving a detailed result of exploring the wilderness of evidence it is sufficient to say that an outline of the situation disclosed thereby is: The defendants were elected councilmen and Mrs. Ella Wilson became mayor; she desired a woman for city clerlq and the council préferred a man who, it was alleged,
None of the parties seem to have had a well-defined' idea as to their duty or the statutes under which they were acting.
The assertion that the council sought to insult the-mayor by choosing a hotel bedroom for a place of meeting is incorrect, the place discussed and used for one meeting being a room in a hotel formerly used for a millinery store, containing a lounge and table but no bed.
By reason of local gossip, caused largely by newspaper publicity, a council meeting at Hunnewell soon came to be regarded as the chief attraction and amusement, and people would even come in from the country to attend, the result being an unseemly and disorderly gathering with but little accomplished except the entertainment of the assembled crowd. The alleged dis
The novelty of a town with a woman as mayor, the prolific and unwise advertising given the situation and the farcical performances engaged in by the parties have resulted in burdening in turn the governor, the attorney-general and this court with a petty neighborhood controversy which by the exercise of ordinary judgment and discretion and a modicum of good faith could have been avoided.
Without deciding at this time whether the defendants have been guilty of willful misconduct in office or of willful neglect to perform any duty enjoined upon them by the laws of the state, the attention of the parties concerned is called to certain matters which they should know and observe.
(1) While the statute (Gen. Stat. 1909, §§ 1545, 9388) authorizes the mayor and council to -levy and certify a tax, it does not require them so to do in case there be no necessity therefor.
(2) The statute (Gen. Stat. 1909, § 1518) provides that the mayor shall, by and with consent of the council, appoint a city clerk, city treasurer, city marshal, and may appoint a street commissionér and such other officers as may be deemed necessary. The spirit of this statute requires that the council act in good faith upon the appointments made by the mayor and that if their confirmation be withheld it be for some reason sufficient to actuate honest men in the performance of their duty although they are not required to express what such reason is.
(3) There is no power to appropriate or use script or draw orders' for money except in pursuance of an ordinance. (Gen. Stat. 1909, § 1553.) The council have the right to select one of their own body as president of the council, who may preside at all meetings in
(4) It is for the mayor and council in the bona fide exercise of their judgment to determine whether a marshal, when appointed and confirmed, shall be paid by salary or by feés. It is likewise for similar determination whether a tax shall be levied, keeping in view the fact that it is their duty to provide for the necessary expense of conducting the city in a proper manner and to keep down lawlessness and rowdyism.
While it is proper to have open meetings which the public may attend, it is not proper to conduct such meetings for the purpose of providing entertainment and amusement, and it may be necessary for the mayor and council to hold executive sessions from which bystanders are excluded to the end that orderly proceedings and administration of the city’s affairs may "be had.
The cause will be continued, with the right of either party to apply for further orders herein, for final disposition when the court becomes satisfied whether or not the mayor and council are acting together in good faith for the welfare of the city in the performance of their official duties.
Dissenting Opinion
(dissenting) : The burden was upon the state to establish by evidence that the defendants were guilty of willful misfeasance or malfeasance in office. The majority opinion practically concedes that the state has failed to establish either fact. There is no law which requires the city to levy a tax where, as is shown in this case, no tax was necessary. True, the legislature has declared that the mayor of cities of the third class “shall” appoint a city marshal ’by and with the consent of the couricil. For a number of years this village of les’s than twq hundred inhabitants managed to get along without the services o'f a marshal and several preceding administrations ignored the. mandate of the statute without disastrous consequences'. From this it