State ex rel. Denison v. City of St. Louis

90 Mo. 19 | Mo. | 1886

Black, J. —

A writ of certiorari was sued out of the ■circuit court in this case to test the validity of a resolution of the council of the municipal assembly of St. Louis, removing the relator from the office of police justice. The return to the writ, upon which judgment was given for relator, shows that the council, on the nineteenth of May, 1885, adopted a resolution which recites, in general terms, a current report of political •abuses in various city institutions, and then a committee ■of three is raised to inquire into the management of the affairs of the several departments,” with power to summon witnesses and to report to the council “such facts as may come within their knowledge, with such recommendation as in their judgment may be just and proper.” On July 24, 1885, the committee reported that they had “ considered the charges ” against the relator, .and from the evidence were satisfied that he had neglected his duties in absenting himself from court the greater part of the day, and that he had violated the charter in engaging in the practice of law, and recommended that he be removed from office. The report was •considered by the council, on July 31, and the resol ution, removing the relator, was then adopted. The return also shows that the relator was summoned as a ■witness before the committee and gave evidence of his official conduct; that, after the report had been filed, he addressed a communication to The council, in which he says he had had no notice of any charges against him, and he asked to be informed as to what they were, and that he might be heard before a session of the council. Beyond its reading, no notice was taken of this communication.

Where an officer is appointed during pleasure, or where the power of removal is discretionary, the power to remove may be exercised without notice or hearing. Field v. Commonwealth, 32 Pa. St. 478 ; Ex parte Hennen, 13 Peters, 230. But where the appointment is during good behavior, or where the removal must be for cause, the power of removal can only be exercised when charges are made against the accused, and after notice, with a reasonable opportunity to be heard before the officer or body having the power to remove. Gaskin's case, 8 Term Rep. 209 ; Field v. Commonwealth, supra; State v. Bryce, 7 Ohio St. (part 2) 82 ; Dillon on Mun. Corp. (3 Ed.) secs. 250 to 254.

The police justices of the city of St. Louis are appointed by the mayor and confirmed by the council for the term of four years. Secs. 2 and 9, art. 4, of the char- ' ter; (2R. S., pp. 1590-1). Section five provides; “Any elected city officer may be suspended by the mayor • and removed by the council for cause; and any appointed officer may be removed by the mayor or council for cause.” Section seven provides: “ Whenever the mayor shall remove any appointed officer from office, he shall immediately notify the council of such removal and the causes therefor, and the council shall fill the vacancy.” Section eight: ‘ ‘ All officers appointed by the mayor shall be subject to removal by a majority of the elected members of tlie council, but if so removed the mayor shall fill the vacancy, and no confirmation of the council shall be required.”

From the fifth and seventh sections, it is perfectly clear that when the mayor removes an appointed officer he can do so only for cause. But the argument is made, that, as the council is composed of thirteen members and a majority, to-wit : seven, constitutes a quorum, and as a majority of that quorum may pass a measure, therefore, under section five, four votes may remove; whereas, under section eight it requires a majority of the elected members, to-wit, seven. In short, that under section five and for cause four votes may remove, but under section eight and without assigning any cause for removal, seven votes at least are required, and hence the two sections are to be considered as independent, and under the latter the power to remove is discretionary in the council. This argument has for its support ingenuity, but it is unsound. The fifth section is but a general declaration of power to remove conferred upon the mayor or council for cause. The eighth is a further limitation upon the council, and requires a majority’ vote of the elected members. The council can in no case remove • an appointed officer except for cause, for the two sections must be considered together.

Again, section six makes it the duty of the mayor, when he shall suspend an elected officer, to notify the council of the suspension and the causes therefor. He shall then present charges and furnish a copy of the same to the accused, who has a right to appear with a legal adviser and. defend. If the suspension made by the mayor is sustained by a majority of all the elected members of the council, then the accused stands removed from office. Section twelve also provides that any elected officer may be removed by a two-thirds vote, notice thereof and an opportunity to be heard being given to the officer. Thus it will be seen that ill case of the suspension of an elected officer, and in case of the removal of an elected officer, the charter is specific in allowing him time and opportunity to be heard, and in ■case of suspension he must have a copy of the charges ; but in case of the removal of an appointed officer no such specific provisions are made. It does not follow from all this, as is contended by the defendants, that the appointed officer is entitled to no notice. More prominence is given in these charter provisions to the removal of an elected officer than to the removal of an appointed one, and, as to the former, the charter goes more into the details of the proceedings ; but the charter does not say, nor is it fairly deducible therefrom, that an appointed officer may be removed without notice. .When the removal is not discretionary, but must be for a cause, as is the case here, and nothing is said as to the procedure, a specification of the charges, notice, and an opportunity to be heard, are essential. This, we think, is the res alt of the authorities before cited. The proceedings in this case are wanting in all these requisites ; for if, indeed, any charges were ever made against the relator at all, they were the product of the minds of the members of this committee, and by them kept from the knowledge of the accused. *>

While the relator appeared before the committee as a witness, he did so in obedience to a subpoena issued on the very day the’report was made. It gave him no notice of charges against him. Even if he had had notice of the entire contents of the resolution, and, as a consequence, of all the committee were authorized to do, that would be no notice of any charges against Mm, much less of any hearing or trial; for the resolution does not contemplate the trial of the relator or any other officer on charges then made or presented. It rather looks to a general inquiry, to the end that specific charges might be made before the council, the body authorized to hear them, where the same should be advised in individual cases.

The judgment is, therefore, affirmed.

Henry, O. J., absent. The other judges concur.