278 N.W. 778 | Mich. | 1938
Lead Opinion
Plaintiff, a member of the council of the city of Highland Park, was removed from office because he was a member of the so-called Black Legion, a secret society of political character, the council finding he was a member and that his participation in the affairs of the Black Legion was highly reprehensible in a member of the common council of the city of Highland Park and rendered him incompetent to perform the duties of his office and constituted corrupt and wilful malfeasance in office and wilful misconduct to the injury of the public service. Plaintiff was removed by a vote of three to one. Thereupon, he reviewed the removal proceedings in the circuit court by certiorari where the action of the council was affirmed, and plaintiff appeals.
No fault is found with any official action of the plaintiff. It appears, so far as this record shows, his official conduct was exemplary.
Conceding the provisions of the charter of the city of Highland Park for the removal of officers are warranted by the home rule enabling act (1 Comp. Laws *98
1929, § 2228 et seq. [Stat. Ann. § 5.2071 et seq.]), the question is whether, conceding what was charged against plaintiff was true, it warranted the action of the council complained of. It is well settled the misconduct, misfeasance or malfeasance under our law, to warrant plaintiff's removal from office, must have direct relation to and be connected with the performance of official duties and amount either to maladministration or to wilful and intentional neglect and failure to discharge the duties of the office at all. It does not include acts and conduct which, though amounting to a violation of the criminal laws of the State, have no connection with the discharge of official duties. The misconduct which will warrant the removal of an officer must be such as affects his performance of his duties as an officer and not such only as affects his character as a private individual. In such cases, it is necessary to separate the character of the man from the character of the office. The misconduct charged and established must be something which plaintiff did, or did not do, in his official capacity. State, ex rel. Martin, v.Burnquist,
No misconduct in office, no official misconduct, is shown or claimed. The defendant council was in error in removing plaintiff. As this disposes of the case, it is unnecessary to discuss other questions raised.
Judgment reversed and proceedings quashed, but without costs, a public question being involved.
WIEST, C.J., and SHARPE, CHANDLER, and NORTH, JJ., concurred with POTTER, J. *99
Dissenting Opinion
The decision of the lower court should be affirmed. The case comes to us on certiorari. If the council had the power of removal and if there is any evidence that sustains the finding by the council of the city of Highland Park of incompetency and wilful misconduct to the injury of the public service, plaintiff was properly removed. No specific wrongful act of an official nature was complained of, but it was charged that Wilson's membership and activity in the Black Legion made him incompetent to perform the duties of the office of a member of the council of the city of Highland Park. For this reason it is necessary not only to discuss the power of removal but also the actions of Wilson during and since the year 1933.
The city of Highland Park is organized under the home rule act (1 Comp. Laws 1929, § 2228, et seq. [Stat. Ann. § 5.2071 etseq.]) and by its charter the council is authorized to remove an officer for cause. The home rule act does not specifically grant to a city organized thereunder the power to remove its officers, but such power is inherent in a municipal corporation. Hawkins v. Grand Rapids Common Council,
Plaintiff was elected a member of the common council of the city of Highland Park in 1932, reelected in 1934, and re-elected in April, 1936, for a term of two years. He was removed during the last term. There was no evidence of his participation in Black Legion activities later than the early part of the year 1934, and plaintiff contends that he may not be removed for misconduct in a prior term.
In Hawkins v. Grand Rapids Common Council, supra, we said:
"We are not prepared to find in this case, nor to hold as a general rule, that the misconduct of an officer, who is his own successor, committed during the preceding term, may not be inquired into and furnish ground for his removal."
Speed v. Detroit Common Council,
"To construe the statute as meaning that the office of a registrar or deputy registrar could be declared *101 vacant only for breaches of the law which occurred during the term in the course of which the proceedings for such action were held would mean that his previous misconduct would have to be disregarded, no matter how serious it was, how soon before his re-election it had occurred, whether it was known or had been concealed, whether indeed it had been the very means of securing his re-election. It is true that one can imagine a situation where the removal of an officer for a breach of law at a previous term might be unjust to him and serve little if any purpose in protecting the public service. On the other hand, to hold that re-election to office establishes a bar to proceedings under the statute based upon previous misconduct might fall far short of affording that protection to the public which the statute is designed to effect. We believe that it better accords with the legislative intent expressed in the broad provisions of the statute to hold that where a registrar or deputy registrar has been guilty of such violations of the law as are made ground for declaring the office vacant, the fact that such violations occurred during a term previous to that in which the proceedings are brought does not justify the court in refusing to obey the mandate of the statute. Upon the facts found, the trial court should have declared the office of both registrars vacant."
The right to remove for misconduct in a previous term is amply supported by authorities. Hawkins v. Grand Rapids CommonCouncil, supra; Attorney General v. Tufts,
(94 P. 954, 20 Ann. Cas. 109); Bolton v. Tully,
"But it is argued that in a democratic government like ours the will of the majority is supreme, that where a person is elected to office, the people of his locality have put their stamp of approval upon him, and that their choice should not be disturbed by any court unless the official has been guilty of misconduct after he commences to serve the identical term for which he was last elected. In other words, it is said that an election cleanses the successful candidate of all past sins and washes away all taint of official corruption. The position could be urged with more force if the offense of the official had been exposed to the public before election and had been made an issue during the campaign, and notwithstanding his wrongdoing, he had been successful at the polls. * * * It does not appear that the alleged misdeeds of respondent had come to light or were known to the people of his town when they elected him to his present term."
There is nothing in the record which would indicate that the electorate was aware at the time of Wilson's re-election of his connection with the Black Legion. Therefore, if proper grounds for removal did exist during the prior term, his re-election would not be a bar to such removal. *103
The question remains whether mere membership in the Black Legion constitutes cause for removal. The Black Legion was a secret society founded on principles of racial, religious and political discrimination. Its members took an oath to further these purposes by any means ordered by the officers of the organization, including violence and terrorism. Members were forbidden to expose the organization under penalty of death. Membership was supposedly permanent, the only ex-members being, as was stated, "six feet under ground." It is understandable how candidates for membership, being unaware of the true nature of the organization, could be innocently lured into taking the initial oath of the Black Legion. It is also understandable how they might continue with the ceremony, particularly when they were overawed, as was shown, by the pressing of drawn revolvers against their persons while taking the oath. It is even comprehensible that such men might continue to go about their business without further having anything to do with the organization and without ever divulging their membership, the fear of the vengeance that would be inflicted upon them in the event that they breached their obligations keeping them silent. However, notwithstanding the oath of secrecy and the threat of retribution, the testimony shows that one man had the fortitude to withdraw from the initiation. Another immediately visited the public authorities and divulged the criminal purposes of the order. On the other hand, the evidence shows that plaintiff was not only a member, but also an active one. During an initiation ceremony, while in hooded mask and gown, he pressed a gun against a candidate while the latter was taking the oath. However, it was not shown nor is it claimed that plaintiff was even remotely connected *104 with or even knew of the capital crimes that had been committed by the members of the Black Legion.
Membership in a secret society devoted to benevolent, social or religious purposes, or in a political party devoted to peaceful change in the economic system is a right, and in no sense a ground for removal from office, unless, as in this case, such membership must necessarily tend to prevent the public officer from properly performing the duties of his office. The Black Legion was founded on principles of violence and illegality. It had a rather undeveloped plan to overthrow the government by force, the members to rise in arms when the password "Lixto" would be given. The Constitution vouchsafes the rights of free speech, press and assembly, even though the opinions expressed may be contrary to those of a vast majority of the people. However, such right is not an absolute one and does not permit acts that incite to violence and crime and have for their purpose the overthrow of government by unlawful means. People v. Immonen,
"There is no constitutional immunity for such conduct abhorent to our institutions."
Plaintiff was not charged with the commission of criminal acts, but he was removed because his membership in the Black Legion rendered him "incompetent to perform the duties of his office" and constituted "wilful misconduct to the injury of the public service." A public officer is an agent of the public, owing a fiduciary duty. Fair dealing and disinterested conduct on his part are required. People v. Hirschfield,
One who sells his vote in a body of which he is a member is guilty of such misconduct in office as is a ground for his removal. Etzler v. Brown,
Notwithstanding plaintiff's denial that he ever belonged to the Black Legion, which is also known by *106 other names, there was evidence which sustained the judgment. Under the circumstances, he was properly removed from office.
Judgment should be affirmed, with costs to defendant.
BUSHNELL and McALLISTER, JJ., concurred with BUTZEL, J.