99 Ky. 449 | Ky. Ct. App. | 1896
Lead Opinion
delivered tiie opinion of the court.
The board of public safety and the board of public works,, executive boards of the government of the city of Louisville,, instituted these actions in equity in the court below, .in which it is alleged the mayor and board of aldermen were about to remove the members constituting the two boards from office without cause, and the sole question in each case' is: “Has the mayor the power, with the approval of the board of aldermen, to remove these officials without notice and trial, and! without assigning any cause for their action ?”
The judge of the law and equity court decided the one' case, and the judge of the common pleas court the other,, each holding the mayor had no such power.
These executive boards, composed of three members each,, are appointed by the mayor, with the approval of the aider-men, for a term of four years, with a salary each of not less than $2,500. The board of public works are invested with
To the board of public safety is given the exclusive control, under the ordinances of the council, of the fire department, the police department, the health department, the department' of building, of all the charitable, reformatory and penal institutions of the city, with many other powers given by statute, investing the two boards with the execution and control of nearly all the departments of the city government, and to carry into effect the legislation of the municipality.
They are the creatures of the legislature, and their terms of office, as is contended, may be ended at the legislative will. They have neither a freehold in their offices n or a vested right that places their official existence beyond legislative control, yet they are officers of the city, with a responsibility and duty resting upon them that renders their position as important as any other in the conduct of the municipal govemment.
Section 160 of the State Constitution is as follows: “The mayor or chief executive, police judges, member's of city councils of towns and cities, shall be elected by the qualified voters thereof, provided the mayor or chief executive and police judges of towns of the fourth, fifth and sixth classes may be appointed or elected, as provided by law. The terms of office of mayor or chief executive or police judges shall be four years, and until their successors be qualified, and of members of legislative boards two years.
It is claimed by counsel for the two boards that under this provision of the Constitution the Legislature must prescribe the manner in and the cause for which city officials may be removed, and the legislature having failed to comply with the Constitution in this regard the common-law rule must prevail, and the party sought to be removed is, therefore, entitled to notice of the charges against him and to a hearing in his defense, and by the appellant (the mayor) it is insisted this provision of the Constitution does not embrace or affect any officer of a town or city except those especi
It must be readily seen by a casual reading of this section that many of the most important offices connected with a city government, and indispensable to- its existence, are omitted to be mentioned in the section of the Constitution referred to, and the creation of such offices confided by that instrument to the wisdom of the legislative branch of the government, with the duty of prescribing their qualifications, and the cause or causes for which they may be removed.
The mayor, police judges and members of legislative councils of cities of the first, second and third classes must be elected by the people, and like officers of towns and cities of inferior classes may be appointed or elected as provided by law; and in the same section, after defining the mode in which these constitutional officers are to be chosen, and knowing that other officers must of necessity be created, further provided: “But other officers of towns or cities shall be elected by the qualified voters therein, or appointed by the local authorities thereof, as the General Assembly may by a general law, provide; but when elected by the voters -» * * their terms of office shall be four years, and until their successors are qualified,” and concluding the section by vesting in the legislature the powrer to prescribe the qualifications of all officers of towns and cities, the manner in and cause'for which they may be removed from office, the provision evidently applying to all officers of towns and cities, whether created by the Constitution or the legislature, and in carrying into effect this provision of the Constitution in regard to removal from office the General Assembly enacted, under the title of Municipal Corporations, the following:
*456 “Section 2781. Executive and ministerial officers, unless otherwise provided in this act, shall be removable by the board of aldermen, sitting as a court, under oath or affirmation, upon charges preferred by the board of councilmen. No person so charged shall be removed from office without the concurrence of two-thirds of the aldermen, and when a person has been so removed from office he shall be ineligible thereto during the term for which he has been elected.”
This provision, of the statute is sufficiently comprehensive to embrace every city officer; and, although the charges for which the removal may be made are not specified, they must be such as constitute misfeasance or malfeasance in office, or that character of charge that renders the officer unfit for the position.
The contention of the appellant is that by a subsequent section of the statute on municipal corporations the manner of removing the members of these two boards has been otherwise provided hy km\ That section reads: “He (the mayor) may, by a written order giving his reasons therefor, remove from office any head of department, director or other officers appointed by him. A copy of said order shall be sent to the board of aldermen at its next meeting. Unless such order be disapproved by. the board of aldermen within thirty days said order shall stand.” (Section 2794.)
These officials having been appointed by the mayor, it is urged in his behalf that any reason satisfactory to himself, and approved by the board of aldermen, is a compliance with the statute, and that no limitation on this power of removal exists when applied to those officers holding under his appointment, and however competent an'd faithful they may be in the discharge of their duties, their positions are held at the mere- will of the chief executive.
That they are placed on a level with the mayor in regard ■to executive duties, and while they are subordinate in some particulars to the mayor, their executive powers are greater than his.
While conceding the force of the arguments, we are disposed to determine this issue on other grounds, and, for the purpose of this case, will assume they come within its provisions.
The case of South v. Sinking Fund Commissioners, 86 Ky., 186, is relied on as sustaining the power of the mayor in the present case. In that case it will be found the statute in express terms placed the power of removal within the discretion of the commissioners. It provided: “The said commissioners shall have power at their discretion to remove any warden unless the General Assembly should refuse to concur in their action, etc.” No reasons for removal were requiredto be given, nor was. there any constitutional prohibition to the removal without cause.
In the absence of a constitutional inhibition an office created by the legislature in a municipality might, by the terms of the act creating it, vest the power in the mayor to remove without cause, leaving the reasons for the removal within his own brea-st. This is not denied.
Mechem, in his work on Public Offices, says: “Where, therefore, the term of office is not fixed by law, and no ojther provision is made for removal, either by Constitution or .statute, it is said to be a sound and necessary rule to consider the power of removal as incident to the power of appointment, but this power of removal is limited to these cir
Our attention has been called to the case of The People v. Stevenson & Higgins, 15 Ills., 110, as sustaining the contention of the appellant. In that case the act created the Illinois Hospital for the Insane, and authorized the trustees to appoint a medical superintendent, subject to removal only for infidelity to the trust reposed in him. There was no mode of proceeding in such cases provided by the Illinois statute, and the trustees, being satisfied of the incompetency of the appointee, removed him without notice or trial. It was held that this power was with the trustees, and the opinion based principally on the ground of the necessity for prompt action on the part of the trustees', the court saying: “Circumstances may require, and even the very existence of the institution may demand the most prompt and energetic action on the part of the trustees in the removal of the superintendent, and the law did not design to- leave them powerless to act in such an emergency; and the law being silent as to the manner of proceeding, the nature of the case must determine what course of justice the trustees should pursue in exercising the power of removal.”
That case can be easily distinguished from the case before us; but even in such case, in a well-considered case of Lease v. Freeborn, 52 Kansas, 750, a different rule prevailed. The plaintiff in that case, Mary Lease, was a member of the
A statute of that State subsequently passed declared that the terms of office of the trustees should be three years. The statute was silent as to any cause of removal, notice or trial, and the court held: “The mere silence of the statute, with respect to notice and hearing, will not justify the removal of an officer, whose term is declared by law, without knowledge of the charges, and an opportunity to explain his or her conduct, and' defend his or her course and character.”
It is urged, however, in this case that the cause of removal (the statute being silent on the subject) is with the mayor and the board of aldermen, and no court can supervise their action.
That the Constitution having required the Legislature to prescribe the causes, and that body having failed to comply with its provisions, the power of removal becomes discretionary with the mayor and board, and the cases of The People v. Stout, 19 Howard (N. Y.), 171; the Mayor and Council of Hoboken v. Gear, 27 N. J. Law, 265, and People v. Whitlock, 92 N. Y., 191, as well as other cases, are referred to as sustaining this view.
It was held in the ease of The People v. Stout that the exercise of such a power (removal for cause)) “is judicial in its nature, and* therefore, not the subject of review by any other tribunal, either in respect to the cause, its sufficiency or existence in any respect whatever.”
In the case of The Mayor v. Gear it was held that although
Other cases follow the authorities referred to, some of them holding (and to which we assent) that the legislature when not forbidden by the organic law, having been given the authority to create an office for a term, may, if in express terms, authorize the removal of the incumbent without notice or hearing.
In looking to' the doctrine on the question of the removal from office found in the elementary books, as well as .the weight of authority in the adjudged cases, we are not disposed to recognize the rule contended for by the appellant in the construction of our State Constitution or the statute creating municipal offices. The general power to remove .an officer who holds for a definite term carries with it the power to remove for cause upon notice and trial, and it is only in cases where this power to remove without atrial is expressly given that it can be exercised. This doctrine is elementary, and sustained by the decided weight of modern authority.
' In the case of The State ex rel v. Dennison, 90 Mo., 19, a police justice had been appointed by the council, and confirmed by the mayor, for the term of four years. The validity of his removal was tested. The charter was silent as to notice and trial where one had been appointed to office, but it did require a notice and hearing to those who had been elected to office.
It was contended that inasmuch as> the charter required notice to elective offices before removal, it must negative the idea that any notice was required to' be given appointed officers. The court held that no inference dispensing with notice arose from the failure of the charter to require it; and
In the case of Halgreen v. Campbell, 82 Mich., 255, the charter of the city of Menominee prohibited, in express terms, the removal of elective officers except for cause, and it was argued in that case the presumption must follow the legislature intended that, appointed officers should be removed without cause, or at the pleasure of the appointing power, but the court held that no such presumption would be indulged to enable those in power to exercise such arbitrary power, and the appointee was entitled to be heard.
In the case of Speed v. Common Council of Detroit the office of city councillor was. filled by appointment from the mayor for a fixed term, and the charter of that city provided: “Any officer holding office by appointment, unless otherwise provided by law or ordinance, may be removed at any time by the council without charges and a trial thereof, by a vote of á majority of the members-elect, except the comptroller, receiver of taxes, etc.” The appointee was not within the exception. The court held that such powrer was inconsistent with the power of appointment by the mayor for a fixed term, and, therefore, the removal was invalid, the officer being entitled to notice and an opportunity to be heard.
The court in that case referred to the case of ex parte Hennen, 3 Pet., 230, in which it is said: “We have not found any case where an officer who was appointed for a fixed term, and where the power of removal was not expressly declared by law to be discretionary, has been held to be removable except for cause;” and when cause is to be assigned the party is entitled to an opportunity to be heard.
.But it is further contended that the legislature, by sec
The members of these executive boards carry into execution nearly the entire legislation of the municipal government, and are entrusted with the performance of duties requiring the exercise of the highest judgment and the assumption of grave responsibilities. They are appointed for the fixed term of four years, with a salary commensurate with the duties they are to discharge, and to concede the power of the mayor to expel these boards from office with or without cause, in the absence of a trial or an opportunity to be heard, would be to recognize the existence of an arbitrary power that never entered the mind of the legislature, and in direct antagonism with the entire policy of the State in reference to such officials.
The legislature, in failing to comply with the provision of the Constitution, in not assigning causes for removal of city officials, attempted to transfer the exercise of this legislative power to the mayor, and left with that officer and the board of aldermen the right of determining the reasons for which the members of these boards should be removed, and if such a power could be delegated (and we think it could not) a removal for reasons given must be based on some neglect of duty or the want of capacity to conduct the office, o-r such other causes as unfit the member for bolding the place.
If the legislative purpose had been to give the power to
The act also under which this power is claimed plainly indicates the legislative policy as to the removal of the city officials, and goes so far as to require the board of safety, when investigating charges against the members of the police force, its own appointees, to give reasonable notice to the accused, that he may be heard; and yet it is attempted to be maintained that these executive officers, because they were appointed by the mayor, can be removed for any cause, however trivial, or for charges odious and degrading without the opportunity of making defense and of disproving, the charges miade.
We can not assent to the exercise of such a power, and the necessity for some stability, and independence in the discharge of the important trusts confided to these executive boards is of itself a convincing argument against the contention of the appellant, and aids much in the construction of the statute from which it is argued this arbitrary power flows.
In the case of Mindy v. Board of Fire Commissioners of the City of New York, the charter of that city declared that “the power of removal by the commissioners could not be exercised as to any regular clerk until he has been informed of the cause of the proposed removal.”
It may be contended the legislature by section 2794 intended the removal from office by the appointing power, for either a fixed or indefinite term of the appointee, should be for a less cause than that authorizing an impeachment; and while this is no doubt true, still the cause was not prescribed, and when for a fixed term, unless otherwise expressly provided, the party sought to be removed is entitled to be heard, and the attempt to- confer the power (if such was the proper construction of the statute) on the mayor to-remove, with the consent of the aldermen, without trial or an opportunity to> be heard is a nullity.
“Where the officer is appointed for a fixed term, and removable only for. cause, he can be removed only upon charges, notice and an opportunity to be heard.” (Throop on Public Officers, page 364.)
This rule is fundamental, and as both the Constitution and the legislature are silent as to the cause for removal the delinquent officer may be impeached before the aldermen with notice and that as at the common law. That the legislature intended to place a limitation on the power of the mayor to remove these officials, if embraced by the section referred to- in requiring reasons to he-given, is unquestioned, as well as for the purpose of protecting those who are com
The judgment in each case is affirmed.
Concurrence in Part
delivered the following separate opinion:
I concur in the affirmance of the judgments, but dissent from the reasons given in the opinion.
It seems to me that the legislature, under section 160 of the Constitution, h'as plenary power as to the manner of and cause for which city officers may be removed, and it is within the power of the legislature to authorize the mayor to remove the officers mentioned for any cause or reason to him deemed sufficient, although such cause or reason might not imply either malfeasance, misfeasance or incompetency, and that, too, ■without notice or hearing; but the power of removal given in section 2794 of -the Kentucky Statutes does not clearly include the power to remove the officers in question.
Judge DuRelle delivered the following dissenting opinion: I dissent from the opinion of the majority in these cases. In my opinion the act for the government of cities of the first class was intended to effect a departure from the character of municipal government which had theretofore prevailed.
A consideration of the whole act shows that it was intended to provide a responsible head of the executive department. of the city government, accountable to the people at the polls, and that'the subordinates of that department should be responsible, directly or indirectly, to the head. While the act is in terms a general act, there was but one city to which it could apply, ánd a comparison of its provisions with those of the old city charter leads inevitably to the conclusion that a change was intended whereby greater power, and, at the
The mayor, who is the head of the executive department of the city government (section 23), appoints the executive boards-, which are subordinate departments or branches of the executive, although not called departments in the statute (section 40). The boards in turn are empowered to appoint the heads of subordinate executive departments (section 48), and they also employ or appoint subordinate executive employes and officers (sections 41, 47, 100).
It is made the duty of the mayor to be vigilant and active in causing the ordinances of the city and the laws of the State to be enforced (section 29). He is required to “exercise a general supervision over all the executive and ministerial officers of the city, and see that their official duties are honestly performed. He may require, from them statements in writing concerning the discharge of their duties” (section 31). He may appoint persons “to examine, without notice, the affairs and accounts of any city department, trustee, ■officer or employe, . . . and to report to him the results of such investigation.”
If these powers were all that were attached to the office of mayor, he would be helpless to perform the duties required of him. In what way could he be vigilant and active in causing the ordinances of the city to be enforced if the boards of his appointment, creatures of his creation, were turned upon confirmation into a set of Frankenstein monsters, who could set him at del?anee? How could he exercise a general supervision over all the executive and ministerial -officers of the city, and see that their official dudes are hon
Again (section 52), authority is given to refer any matter in dispute as to the powers or duties of said boards or the officers thereof to the mayor, wlm shall examine and determine the questions involved, and whose decision shall be final ■as between said boards or said officers. There would be little prospect of a reference of any matter in dispute to the mayor, if the boards are entirely independent of his control.
By section 107 if is provided that “in times of peril from riot, extensive conflagration, disorder, or the apprehension thereof, the chief of police shall be subordinate to the mayor, and obey his orders and directions.” With the chief of police subject to removal at pleasure by the board of safety, and with the board of safety entirely independent, of and hostile to the mayor, who is to determine whether peril from riot, disorder, or the apprehension thereof, exists, -and which of Ms two masters will the chief of police be likely to serve under such circumstances — the one who has no'’power over
The provision for written charges against and trial of policemen before'their removal from the force, upon which some stress has been laid in argument, was not part of the original act, and no argument can justly be drawn from it as to. the intent of the original act, or the intent of any part of it not affected by the amendment. This amendment( section 2, act of March 23, 1894) was passed, so far as can be inferred from its provisions, as a civil service reform measure designed to take the police force out of politics. The suggestions which have been given, and many more which might be drawn from the provisions of the act, indicate clearly that the intent of the legislature was to adopt the theory which has in modern times become the accepted theory of municipal government, that there should be a responsible head of the municipal executive, and that he should be clothed with authority commensurate with his responsibility.
The modern theory has been well expressed by Judge Cooley: “Experience has also, demonstrated the necessity of more power and more responsibility in the executive head of our municipal institutions. Too. often the.duties of the mayor or executive officer are only nominal, and to these he gives but little attention — a natural result of his want of importance, and of hjs inability to' control the administration of municipal affairs. If the office be clothed with dignity and real authority; if the mayor shall be invested with the veto power; if he shall have the sole right to appoint and the unrestricted power to suspend or remove subordinate officials or heads of departments, then the citizens, can justly demand of him'that he shall be individually responsible for the proper conduct of the concerns of the municipal
It is not necessary to suppose that the legislature had the present condition of affairs in mind in passing the act, though it is to- be presumed that they considered the con-' tingency of the death or resignation of the mayor during his term. What they probably had mainly in view was the contingency which was to be expected, namely, that the mayor and the boards of his appointment might differ in their views of what was necessary for the proper conduct of the city government, or might become engaged in a quarrel over personal matters; and so the purpose of the legislature being clearly deducible from the act itself, the question remains whether apt language was used to express that intention, and, if so, whether the constitution gave the right to effect the object.
Section 32 provides: “Removal of officials appointed by the mayor. He may, by a written order giving his reasons therefor, remove from office any head of a department, director or other officer appointed my him. A copy of said order shall be sent to the board of aldermen at its next meeting. Unless such order be disapproved by the board of aldermen within thirty days said order shall stand.”
It is contended for the boards that this section does not include them upon the ground of the rule of construction “that a statute which enumerates persons or things of an inferior rank, dignity or importance is not to be extended by the addition of general words to persons or things of a higher rank, dignity or importance than the highest enumerated, if there are any of a lower species to which the words can apply.” (Black on Interpretation, 145.)
While this rule of interpretation is most, generally in-
It remains to be considered whether the removal provided for by section 32 was forbidden by section ICO of the Constitution. That section, after providing specifically for certain-named officers of municipalities, and thereby creating what was never known to any former Constitution, namely, constitutional municipal officers, fixing their terms of office and the manner of their selection under various conditions, proceeds: “The General Assembly shall prescribe the qualifications of all officers of towns and cities, the manner and causes for which they may.be removed from office, and how vacancies in such offices may be filled.”
That section is susceptible of two interpretations: One, that the concluding clause referred only to those municipal offices which were mentioned in the Constitution — that is, to the constitutional municipal offices — and has no application to municipal offices which are the mere creatures of the legislature. The other construction is that the section was-
In theory Constitutions are made by the whole people. In actual practice they are submitted to them for ratification, and the words used are to be given their common meaning, and not to be construed technically. It must be remembered that under the former Constitutions it was well established and undisputed that the legislature was without power to provide qualifications for constitutional officers in addition to the qualifications provided in the Constitution, or to provide for their removal for any cause other than the causes recognized by the common law at the time of the adoption of the Constitution, or to provide any manner of removing a constitutional officer except upon notice and hearing. (Page v. Hardin, 8 B. Mon.: 648.)
On the other hand, prior to the adoption of this Constitution, it was equally well settled that as to officers which were not constitutional but wholly statutory, the legislature had full power to provide their qualifications and the manner of their removal whether the removal was to be with or
Before the adoption of the present Constitution the legislature was omnipotent as to municipal government and municipal officers, and when the new Constitution was adopted, which created certain constitutional municipal offices, a wise provision was inserted to prevent those new constitutional offices becoming subject to the then established rule of law; and the language of this provision must be construed according to its common meaning.
“In interpreting clauses we must presume that the words have been employed in their natural and ordinary meaning. .As Marshall, chief justice, says: ‘The framers of the Constitution and the people who adopt it must be understood to have employed words in their natural sense, and to have intended what they have said.’ This is but saying that no forced or unnatural construction is to be put upon their language; and it seems so obvious a truism that one expects to. see it universally accepted without any question; but the attempt is made so often by interested subtlety and ingenious refinement to induce the courts to force from these instruments a meaning which their'framers never held, that it frequently becomes necessary to re-declare this fundamental maxim. Narrow and technical reasoning is misplaced when it is brought to bear upon an instrument framed by the people themselves for themselves, and designed as a chart upo i which every man, learned and unlearned, may be able to trace the leading principles of government.” (Cooley’s Constitutional Limitations, 6th ed., p. 73.)
In my judgment the constitutional provision is a wise one, .and section 32 of the act under consideration was adopted in accordance with the purpose of the constitutional provi
In passing upon its validity this court should be guided by the well-settled rule of statutory construction which is thus stated by Judge Cooley in his work on Constitutional Limitations: “It has been said by eminent jurists that when courts are called upon to pronounce the invalidity of an act of legislation, passed with all the forms and ceremonies requisite to give it the force of law, they will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light upon the subject, and never declare a statute void unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt. A reasonable doubt' must be solved in favor of the legislative action, and the act be sustained.
“The question w’hether a law be void for its repugnancy to the Constitution is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful' of the solemn obligation which that station imposes; but it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered us void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.
“Mr. Justice Washington, gives a reason for this rule which has been repeatedly recognized in other cases which we have cited. After expressing the opinion that the par-' jicular question there presented, and which regarded the