64 Ky. 176 | Ky. Ct. App. | 1866
Lead Opinion
delivered the opinion op the court:
We have not deemed it essential to inquire whether the 15th section, 4Jh article, of the city charter of Louisville, is in conflict with 5th article of the State Constitution, which gives to the “ House of Representatives the sole power of impeachment,” or section 35, article 4, which provides that the county oiflcers “shall be subject to indictment or presentment for malfeasance or misfeasance in office, or willful neglect in the discharge of their official duties, in such mode as may be prescribed by law, subject to ap
As the first provision includes all civil officers, and the latter all the county officers, there is much reason to infer that it was intended no officer should be ousted in any other way from the discharge of the duties and reception of the emoluments of the office.
But however this may be, by section 15, article 4, city charter, 82, the board of aldermen could only become a court to try charges preferred against a city officer upon being duly sworn; and being a court of the most limited jurisdiction — indeed, having jurisdiction, as a court, only for the purpose of the trial and removal of officers— every thing essential to make it such a court must appear affirmatively, and no intendment or presumption in its favor can be indulged.
The record shows that eleven of the aldermen were sworn by “ Esquire Clementsand afterwards, another alderman coming in, reported he had also been sworn by Clements before getting to the hall. The board then, on consultation, determined to be sworn again, and were sworn by their clerk, who wds also a notary public.
Whether Esquire Clements was a notary public, or some other kind of officer, or no officer at all, does not appear; and, even if he was, the board abandoned tl^p oath administered by him, and organized under the oath administered by their clerk and notary public.
We have found no provisions in the city charter nor general statutes authorizing the clerk of said board to administer oaths. Therefore, on this branch of the subject, we are left to the inquiry how far a notary may administer such an oath.
The Constitution recognizes such officers as mayors of cities and other police officers.
By section 11, chapter 71 (2 Stant. Rev. Stat., 191), it is provided, that “ the official oath of any officer may be administered by any judge or justice of the peace.”
Section 1, article 8, Constitution, prescribes the oath to be taken by “ all officers before they enter upon the execution of the duties of their respective offices,” and is the oath referred to in the schedule to the Constitution and Revised Statutes.
These aldermen could only become judges and sit as a court, even for the special purpose of trying charges against an officer, by taking said oath, and that administered by an officer with competent authority.
By section 611, Civil Code, affidavits may be made before notaries public.; but section 612 defines what are affidavits, which does not include official oaths.
Both the Constitution and laws recognize a difference between official oaths and affidavits, and this was deemed of so much importance as to require a constitutional declaration who should administer such oaths until otherwise provided by law; and the Legislature has deemed it to be of sufficient importance to designate who shall administer official oaths, and certainly did not intend that those officers should be enlarged without an explicit provision.
If this be correct, the notary had no legal authority to administer the official oaths to those aldermen, and thereby make them judges; and for want of a duly administered oath they did not become judges, nor did their body become a court; hence their proceedings as a court were wholly illegal and void. Had they been a regu
Charges signify an accusation, made in a legal manner, of illegal conduct, either of omission or commission, by the person charged. We are therefore bound to look into the charges as preferred, and the specifications, to see whether there was a charge of illegal conduct by the mayor; for if none such were made, then no cause existed for said court to try.
If there had been a legal court, and legal charges against the mayor for illegal conduct, we could have nothing to do with its decision, however erroneous, only by appeal, which we have no doubt could have been done, and not on a proceeding of the character now before us.
The general council of the city, consisting of the common council and board c*fi aldermen, had passed this resolution : “ Resolved, that the mayor is authorized to have prepared by the assistant city attorney, and' he is authorized to sign, and he is authorized to execute, a contract with Isham Henderson and his associates,” fyc.
This resolution the mayor returned, with his objections in writing, when each board of the general council again passed it by the required majority of all the members elect. The common council consisted of twenty-four members, and the resolution was passed over the mayor’s veto by thirteen ayes to ten nays. This was on November 16, 1865.
December 5th, 1865, the mayor sent in another message to the general council, stating the reasons why he had declined executing the contract contemplated by the resolution.
2. That Mr. Henderson had produced no authority from his numerous associates to bind them.
3. That Mr. Henderson had taken back the writings by which, as president of the Portland Railroad Company, it was to make certain concessions to the city; upon the reception of which message the common council immediately preferred charges against the mayor as follows :
“ Refusing to discharge the duties of the office of mayor of Louisville.
“ SPECIFICATIONS.
“ That the general council of the city of Louisville, in the month of-, 1865, duly and legally passed certain resolutions, accepting a proposed contract with certain amendments between the city of Louisville and Isham Henderson, for himself and his associates, for a street railway along Market street, and other streets in the city of Louisville, and directing said contract to be accordingly prepared by the assistant city attorney, and when so done, the same to be entered into, signed and acknowledged, by the said Philip Tompert, as mayor of the city aforesaid, for and in the name of said city ; which resolutions were vetoed by said mayor, but were, notwithstanding, afterwards duly and legally adopted by each board of said general council, and thereby became the law and in full force; after which, said contract was reduced to writing by the assistant attorney, as directed by, and in conformity with, the terms of the resolution aforesaid;
The language of the message is respectful, and the reasons urged seem to be of the weightiest character, and he does not therein even intimate that he would finally decline to execute the contract; but had merely postponed its execution until the matters therein could be brought to the notice of the general council for its action.
The affidavits presented with the message raised a prima facie presumption, at least, that a councilman had been corrupted, and, when coupled with the further offer by the mayor to produce other testimony to establish the fact, his action was certainly not illegal, as by said section 15, city charter, he had the right to make charges against any officer; and although the board might not deem it necessary to vindicate its own integrity by an investigation, yet this did not make the mayor’s conduct illegal.
The fact that the resolution was passed over the veto by this councilman’s vote, and that he voted for charging the mayor, and with it the charges were only made by a
The other questions presented in his last message by the mayor were of the gravest legal character, involving important interests of the city, and manifests in him a watchful, legal vigilance as to the city’s interest, instead of a disregard of official duty. Nor can we perceive how the city’s interest could suffer by a delay in the execution of said contract until these questions could be acted on by the general council, especially as other parties were then seeking a contract to extend the street railroads; and unless this had been made apparent, it is hard to perceive the illegality of the mayor’s conduct; and this is not charged in the specifications.
We are of opinion that the board of aldermen, as organized, was not a legal court authorized to try Mayor Tompert, and that the message, charges, and specifications preferred, made out no charge of official delinquency, and their proceedings, by which he was ousted, were illegal and void. There was, therefore, no vacancy in the office of mayor for the general council to fill, and appellee Lithgow, in legal contemplation, became an usurper when he entered upon the discharge of the duties of mayor under their appointment.
Wherefore, the judgment below is reversed, with directions for further proceedings not inconsistent herewith.
Rehearing
We remark at the outset that all the records, papers, &c., used on the trial of Tompert, as mayor, before the board of aldermen, were introduced as evidence in this case by appellee, over the objections of appellant; therefore, he cannot now object to its being considered, or to the result thereby produced.
This record proves precisely this state of facts :
October 26, 1865, the common council rejected the proposition of Isham Henderson and associates to build a street railway through Market and other streets of Louisville, by a vote of ten ayes to twelve nays; that November 9, 1865, this vote of rejection was reconsidered, and Henderson’s proposition accepted by a vote of twelve ayes to nine nays.
The resolution authorizing the mayor to execute and sign the contract was then passed.
November 16, 1865, the mayor’s written objections to said resolution were received and considered, and the resolution again adopted, his objections to the contrary notwithstanding, by a vote of thirteen ayes to ten nays— Mr. Glore, in every instance, having voting to make the contract, to adopt the resolution, and to sustain it over the mayor’s veto.
December 5, 1865, the mayor seiiit to the council his message, accompanied with two affidavits, charging that Glore had received a bribe to sustain the said contract. In this message he says:
“ I deem it due to the council and the citizens of Louisville to have the matter presented to the council for investigation before completing the contract, believing, as I do, that the council will deem it due to their body to
This message, instead of being considered, and the charges preferred against Glore inquired into, was tabled by a vote of fourteen ayes to seven nays, he voting in the affirmative; and immediately the charge and specification against the mayor for failing to discharge the duties of his office in not executing said contract was preferred and sustained by a vote of thirteen ayes to ten nays, Glore voting in the affirmative.
December 28th, 1865, “Mr. Dulany presented a resolution raising a joint session this evening at 8 o’clock, to elect a councilman from seventh ward, in place of N. 8. Glore, expelled, and to elect a mayor for the un expired term of Philip Tompert, deposed from office; which was .adopted.” We have now given the exact history of this case, that its precise status and the principles of law applicable to it may be appreciated.
But it is insisted that the evidence shows that Joseph Clements was a justice of the peace of Jefferson county,
Had these gentlemen been indicted for malfeasance in office under this Clements oath, we have no doubt that, if the facts appearing in this case had been established in a trial on such indictment, that the court would, as he should, have instructed the jury that the refusal to organize under the oath administered by Clements, and the taking another before the notary, was an abandonment of the first oath, and to acquit the parties.
The judge who tried the case does not seem to differ from us as to the law; for, in the opinion, he says: “ If the judgment of the board of aldermen was so informal and irregular as to be null and void, then no vacancy existed at the time of defendant’s election.”
We suppose he means if the proceedings were so irregular, and not the mere form of the judgment. It was therefore not upon the law, but the fact of such
It is said again that appellee could have proven on said trial that appellant not only refused to sign the contract, “ but also, among other gross delinquencies and official misbehavior, that, when he sent in his second message, he made a violent and abusive speech in the presence of, and to the council; and declared, in so many words ‘that they had stultified themselves — that he would not sign the contract, and would make them swallow their lies ? ” but the court would not allow this, and therefore a modification should be so made as merely to direct a new trial.
The court very properly so ruled, because there was no charge or specification which authorized the board of aldermen to receive such evidence. The only charge and specification was for official delinquency in not executing said contract with Henderson and his associates; and, were the case now.sent back for a new trial, this evidence would be wholly inadmissible.
Then the charge and specification were for not executing this contract. Did the charge and specification, founded on the official proceedings of the common council and aldermen and mayor, show that his conduct was illegal ?
Express power is given the mayor by the 15th section, city charter, to charge any officer. He made a charge of official corruption against one of the common council, and gives that as a reason why the contract should not then be executed. Instead of investigating this charge, the common council tabled his message and charge, and received the votes of the councilman thus charged in aid thereof, and then immediately charged the mayor for offi
If this most extraordinary proceeding does not conclusively show corruption and fraud, it certainly does conclusively show that the mayor was acting in good faith to protect the public interest of the city, and was in the legal discharge of his duties. And to say that it is the right of the common council to charge, and the board of alderman to expel, the mayor on charges made at their arbitrary will and pleasure, without legal cause, is an utter absurdity.
If it be granted that the common council may prefer charges, and that the board of aldermen may tiy the same and expel the mayor from office, this can only be done for illegal official delinquency, in accordance with, and subordination to, law; and is not an arbitrary, despotic, and absolute power to do so at their own will and pleasure.
Whilst purity, integrity, and honesty shall be regarded as cardinal principles of public virtue, public morality, and public justice, no case bearing the indelible impress and characteristics of this, can ever address itself imposingly to the favorable consideration and discretion of a court of justice.
But it is again said that the public will be involved in confusion and litigation unless Lithgow be regarded as the rightful mayor. Without intending to decide any litigation which may grow out of these acts, we may be indulged in saying, we apprehend no such calamitous consequences; for this oourt has often recognized the validity of the acts of the officer de facto, as between
But if it should be otherwise, it is not the fault of the law or its courts, and should admonish impeaching tribunals that it is an extraordinary power, and should always be cautiously exercised, and never for any other than the gravest legal causes.
It may be remarked, that, in all this cause, not even the suspicion of the least impropriety is to be found against Lithgow. He only accepted the office after it was declared vacant, at the hands Of the general council, and afterwards by an election of the people. But, as there was no legal vacancy, both of his elections were illegal, and he must therefore surrender the office.