State Ex Rel. Ness v. Board of City Commissioners

245 N.W. 887, 63 N.D. 33, 1932 N.D. LEXIS 134

• Court: North Dakota Supreme Court
• Decided: August 18, 1932
• Docket: File No. 6031.
• Status: Published

Opinions

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] On the 5th day of August, 1931, written charges relating to his office as city assessor of the city of Fargo, together with a notice of hearing thereon were served upon J.G. Ness and on August 10, thereafter, the time set for hearing before the city commission, in the city of Fargo, Ness appeared specially objecting to the jurisdiction of the commission. His objection was overruled, but he remained and took part in the proceedings, objecting, through his attorney, to all the proceedings thereafter taken. On the record made, Ness was removed from office and on certiorari to the district court, the removal proceedings were held to be null and void and from the order and judgment entered in the certiorari proceedings the city appeals.

The respondent has filed motion to dismiss the appeal upon the theory that the institution of another action by the city commission immediately after the dismissal of the first action is a recognition of the validity of the judgment from which the city of Fargo appeals. It appears, however, that in the interim the city appointed an assessor in the place of Mr. Ness, and has the right to have the validity of the first removal determined on appeal. The motion to dismiss is denied.

The charges served upon Mr. Ness are in writing and were read at the beginning of the hearing. The record of the city assessor for the years 1930 and 1931, two copies of the Fargo Forum, a newspaper, containing statements purporting to have been made by Mr. Ness, the letter, exhibit C, to the Fargo Forum purporting to have been written by Mr. Ness and a copy of a long letter, claimed to have been written by Mr. Ness to Mr. C.M. Wade, tax supervisor, and the journal of the board of equalization of the city of Fargo for 1931 were offered and received in evidence over objection.

It is the contention of appellant that § 3791, Comp. Laws 1913, gives the commission authority to suspend and discharge all appointive officers at will as provided in said section, namely: "The said commissioners shall by a majority vote of all the commissioners elected under this chapter have the power to appoint all officers and subordinates in all of the departments of said city, and to suspend and to discharge the same at will under the limitations hereinafter provided."

It is clear from this statute, however, that there are limitations upon this power and the limitations on the power to remove are in § 3808, Comp. Laws 1913. This section specifically provides that "Every person appointed to any office may be removed therefrom by a majority of votes of all the members of the board of city commissioners, but no such officer shall beremoved except for cause nor unless charges are preferred againsthim and an opportunity given him to be heard in his defense. The board of city commissioners may compel the attendance of witnesses and the production of papers when necessary for the purpose of such hearing, and shall proceed within ten days after the charges are filed with the city auditor to hear and determine the case upon its merits."

First, there must be some cause which authorizes the commission to act. Second, there must be charges filed which must relate to the official conduct of the officer. Third, he must be given an opportunity to be heard in his defense. These provisions necessarily require some kind of a hearing. Such proceedings are regarded as quasi judicial in character and hence a full compliance with the rule governing trials in court is not required. 2 McQuillin, Mun. Corp. 2d ed. § 587, p. 359 and cases cited.

In regard to the procedure article 273 of the Texas act (Waco City Charter) provides that "The city council shall have power to remove any officer for incompetency, corruption, misconduct or malfeasance in office, after due notice and an opportunity to be heard in his defense." This statute specifies the acts on the part of an officer which warrants the proceedings of removal by the city council, but is less specific than our statute about the proceedings for removal, which are not specified at all. It says nothing about the procedure. Our statute, after providing for the filing of charges and notice, states "the commission may compel the attendance of witnesses and the production of papers when necessary for the purpose of the hearing."

In the case of Riggins v. Richards, 97 Tex. 229, 77 S.W. 946, at page 948, the Texas Court said: "Appellant contends with much earnestness that article 273 does not, of itself, furnish authority upon which the city council could proceed to try the mayor of the city, because it provides no mode of procedure; in other words, it is claimed that the article is not self-acting. This language in article 273 `after due notice and an opportunity to be heard in his defense,' is very comprehensive and is pregnant with the idea of charges preferred, specifying the grounds upon which a removal is to be made, due notice to the accused, with the right to cross-examine the witness(es) produced against him and to furnish testimony to exculpate himself from the charges, which would secure the constitutional right of a fair and impartial trial. These are strongly implied by the language of the act, and that which the law implies is as binding as if written in the body of the act. Sutherland, Stat. Constr. § 334; United States v. Babbit, 1 Black, 55, 61, 17 L. ed. 94, 96.

"When power to perform an act is conferred by the Legislature upon a body of officers and no procedure is specified, the law will imply authority to do whatever is proper in the execution of the power consistent with the right of the accused to a fair and impartial hearing. State ex rel. Reid v. Walbridge, 119 Mo. 383, 24 S.W. 457, 41 Am. St. Rep. 663; Armatage v. Fisher, 74 Hun, 173, 26 N.Y. Supp. 364; People ex rel. Stevenson v. Higgins,15 Ill. 110; State ex rel. Ragsdale v. Walker, 68 Mo. App. 117; Re Eaves (C.C.) 30 Fed. 21."

Our statute, like the Texas statute, requires notice and an opportunity to be heard and the additional provision that the commission may compel the attendance of witnesses and the production of papers when necessary for the purpose of such hearing. What hearing? The hearing at which the defendant is required to be heard in his defense and for the purpose of this hearing the commission can compel the attendance of witnesses and the production of all necessary papers. It would be idle to give them any such power without the authority to use the witnesses as witnesses and the papers produced as evidence. It follows that the commission has implied authority to subpoena witnesses and papers and so far as the administration of the oath to witnesses is concerned the oath could be administered by a notary public, the city clerk or city auditor under § 833, Comp. Laws 1913. The commission had jurisdiction of the defendant and of the subject matter and the only question that we can consider is, was there any evidence upon which the city commission could act.

It is conceded that the documentary evidence was offered without any identification. The copies of the Fargo Forum were offered and received in evidence and subsequently there was attached an affidavit of publication. The affidavit of publication on exhibit B is to the effect that it is the regular evening edition of August 6, 1931 and the affidavit of publication on exhibit A is that it is the regular evening edition of June 18, 1931, nothing whatever to show that any letter or statement in either exhibit was written and published by the defendant. There is no evidence to identify exhibit C. This exhibit is called in the record, the original letter written by Mr. Ness to the Fargo Forum, but there is no evidence to show that it is the handwriting of Mr. Ness or that Mr. Ness wrote it. The same is true of the purported copy of a letter claimed to have been written by the plaintiff Ness to Mr. C.M. Wade, tax supervisor. This letter, without any showing, was offered as a copy and without any identification whatever. It undoubtedly would have been a very easy matter to have laid the foundation for the introduction of the purported documentary evidence by producing witnesses to identify Mr. Ness's handwriting to the so-called original letter and there is no showing made why the commission did not require the production of the original letter claimed to have been written by Mr. Ness to Mr. Wade. The commission had authority to require the production of all the papers necessary.

In the case of Rutter v. Burke, 89 Vt. 14, 93 A. 842, testimony was taken at great length, but none of the witnesses were sworn. There is this difference between that case and the instant case, viz.: that in that case, witnesses actually gave testimony without being sworn, while in the instant case no witness was examined, either sworn or unsworn. In the former case, the court said at page 849 of 93 Atl. (89 Vt. 14): "A city council is primarily a legislative and administrative body, but is often charged with judicial or quasi judicial functions. When sitting upon charges involving removal for cause, it acts in the latter capacity. But even here, it may be subject to judicial review only in part, and in part be vested with discretionary power. . . . Inquiries involving removal for cause being of a judicial nature, the person charged is entitled to notice, and an opportunity to be heard, and a reasonable time to prepare his defense. But the proceeding being of a summary character, and designed to accomplish an administrative purpose, a full compliance with the rules governing trials in court is not required. . . . If the charter is silent as to the mode of procedure in such cases, the substantial principles of the common law as to proceedings affecting private rights must be observed. 1 Dill. Mun. Corp. 1st ed. § 253. It is certainly a fundamental rule of the common law that evidence in an adversary proceeding in a court of justice is to be given under the sanction of an oath. A city council engaged in a hearing involving a removal for cause is acting in a judicial capacity, and is to be considered a court for that particular purpose. Re Nichols, 6 Abb. N.C. 474. Although not a court in the strict sense, its duty is so far judicial that it cannot dispense with this prerequisite of a judicial inquiry. People ex rel. Kassachu v. Police Comrs. 155 N.Y. 40, 49 N.E. 257. . . . The petitioners . . . (had) the proceedings of the city council stenographically reported, bringing up by affidavit transcripts of that report, and of the report made of the doings of the investigating committee, to substantiate their claim that there was no legitimate evidence tending to establish a cause for removal. The right of the reviewing court to examine the evidence to determine this question is undeniable." 5 R.C.L. 264; 28 Cyc. 442; note in 12 Am. Dec. 533; Davidson v. Whitehill, 87 Vt. 499, 89 A. 1081.

In the case of Garvin v. Chambers, 195 Cal. 212, 232 P. 696, it is held that where there is a conflict in the evidence or where the decision of an inferior board or tribunal is sustained by some evidence such decision is not reviewable on certiorari. The power of the civil service board, §§ 81 and 82, Oakland City Charter, being special and limited, no legal presumptions or intendments may be indulged to uphold its order of removal. Facts must appear on the face of the record sufficient to sustain a finding that the petitioner was guilty as charged, otherwise the order of the board sustaining the charge was in excess of the power conferred upon it.

Under a statute very similar to ours, the Minnesota court, in the case of State ex rel. Hart v. Duluth, 53 Minn. 238, 55 N.W. 118, 39 Am. St. Rep. 595, speaking through Judge Mitchell said: "The charter provides that `any member of said Board (Board of Fire Commissioners) may at any time be removed by a vote of two thirds of all the members elect of the common council of said city for sufficient cause; . . . provided, that the said common council shall previously cause a copy of the charges preferred against such member sought to be removed, and notice of the time and place of hearing the same, to be served on him at least ten days previous to the day so assigned, and opportunity be given him to make his defense personally or by counsel.'" (Practically the same as the North Dakota statute.) Continuing the court said: "It is urged by respondents that the power of removal from office conferred on the common council is purely administrative and quasi political, and therefore that their proceedings cannot be reviewed on certiorari.

"That this power may not be `judicial,' in the sense that it can only be conferred upon the courts, in whom all judicial power is vested under the constitution, has nothing to do with the question; for there is nothing now better settled than that certiorari will lie to review the quasi judicial acts and proceedings of municipal officers and bodies. Neither is there anything better settled than that while the incumbent has no vested right of property, as against the state, in a public office, yet his right to it has always been recognized by the courts as a privilege entitled to the protection of the law, and that proceedings, in all cases where the amotion from office is for cause, upon notice and hearing, are adversary and judicial in their nature, and may be reviewed on certiorari. We think there is practically no conflict in the authorities on this point, the only difference among them being merely as to what they will review on such a writ. Some courts, restricting the writ to its original common-law office, hold that it brings up for review only the record, and not the evidence, and hence that they will not look into the evidence at all, but merely inspect the record, to see whether the inferior tribunal had jurisdiction, and had not exceeded it, and had proceeded according to law, or, as expressed in one case, whether the tribunal `had kept within its jurisdiction, or whether the cause assigned was a cause for removal under the statute.' Other courts hold that the evidence may be brought up, not for the purpose of weighing it, to ascertain the preponderance, but merely to ascertain whether there was any evidence at all to sustain the decision of the inferior tribunal, — whether it furnished any legal and substantial basis for the decision. The latter is the doctrine of this court as to the office of the writ of certiorari. But, while this is so, we recognize the prime importance of each department of government avoiding anything like improper interference with the others in the discharge of their functions; also, that while city councils and other municipal bodies may not have the power to remove from office except for cause, yet, this power being designed to insure efficiency and fidelity in the discharge of official duty, the degree of incompetency and inefficiency which amounts to sufficient cause for removal must of necessity, within certain established limits, rest somewhat in the sound discretion of the officer or body in whom the power of removal is vested. We also recognize the fact that while in the exercise of this power their proceedings are quasi judicial, and hence reviewable by the courts, yet they are not courts, but essentially legislative and administrative bodies; and that their action should be considered in view of their nature and purposes for which they were organized, and not tested by the strict legal rules which prevail in trials in courts of law. Hence, if such body was kept within its jurisdiction, and the evidence furnished any legal and substantial basis for their action, it ought not to be disturbed for any mere informalities or irregularities which might have amounted to reversible error in the proceedings of a court. To apply any other rule to the proceedings of such bodies would be impracticable, and disastrous in the extreme to public interests." See also People ex rel. Hayes v. Waldo, 212 N.Y. 156, 105 N.E. 961; People ex rel. Hogan v. French, 119 N.Y. 493, 23 N.E. 1058.

"Their decisions must, of course, be based upon a consideration of the relevant facts and a fair opportunity must be afforded to present to them such facts as should properly enter into their decisions. Even where an officer may be removed only for `some legal cause, to be ascertained and adjudged as matter of fact upon a hearing,' we have said some `latitude is allowed as to rules of evidence, methods of examination and the like, but no essential of a fair trial can be dispensed with unless waived, and no vital safeguard violated without rendering the judgment of conviction subject to reversal upon review." People ex rel. Hirschberg v. Orange County, 251 N.Y. 156, 167 N.E. 204; Greenbaum v. Bingham, 201 N.Y. 343, 94 N.E. 853.

This is the rule approved by this court in the case of Baker v. Lenhart, 50 N.D. 30, 195 N.W. 16 and in the case of State ex rel. Wehe v. Frazier, 47 N.D. 314, 182 N.W. 545. In the case of State ex rel. Wehe v. Frazier, supra, the tribunal exceeded its jurisdiction by acting without any evidence and that is the question in the instant case. Is there any evidence at all in this case upon which a judgment of dismissal would be justified? The only evidence offered are records of the city assessor's office for the years 1929, 1930 and 1931, two copies of the Fargo Forum, exhibit C, a letter claimed to have been written by Mr. Ness to the Fargo Forum, exhibit D, a copy of a letter which purports to have been written by Ness to C.B. Wade, exhibit E, journal of the Board of Equalization for the year 1931. After these documents were received in evidence the commission rested its case. Appellant concedes that there was no oral evidence of any kind to identify any of the exhibits or to connect the defendant with them and the record shows that these documents, all the evidence in the case, were received in evidence without connecting the defendant Ness with them in any manner whatsoever. It may be said that the records offered are public records of which the commission might take notice, but so far as the records of assessment and equalization are concerned they do not prove anything of themselves. It is not contended that standing alone they substantiate any of the charges. The charges are based upon the letters claimed to have been written by Mr. Ness to the Fargo Forum and to Mr. Wade and as Mr. Ness is not connected with the letters it follows that there is no evidence upon which the commission could act. Appellant states in his brief that the letters were found in defendant's office, but a brief is no part of the record, and it is well settled that in tribunals of limited jurisdiction it must appear affirmatively upon the record that the tribunal had not only jurisdiction of the person and subject matter but that it also had jurisdiction to render the judgment.

To render a judgment of removal there must be some legal evidence in the record upon which the board can act and in the instant case there is no legal evidence connecting the defendant with any wrongful act and the judgment of removal is void.

There is no merit to respondent's contention that it was necessary to swear the members of the commission to try the case fairly and impartially. The statute makes it the duty of the commissioners to act in such matters and their oath of office is sufficient. Since it appears on the face of the proceedings that there is no legal evidence in the record authorizing a removal, the judgment and order are affirmed.

BIRDZELL and NUESSLE, JJ., concur.