State ex rel. Ragsdale v. Walker

68 Mo. App. 110, 1896 Mo. App. LEXIS 498

• Court: Missouri Court of Appeals
• Decided: December 14, 1896
• Status: Published

Opinion

Smith, P. J.

A writ of certiorari was sued out of the circuit court in this case to test the validity of a resolution of the city council of the city of Moberly removing the relator from the office of mayor.

The return to the writ upon which judgment was given against the relator shows that the city attorney of said city, in February, 1894, presented to the city council of said city a verified information, containing certain charges and specifications of official misconduct of the relator, while he was the duly elected, qualified, and serving mayor of said city — a city of the third class, organized under the statutes of this state, the pith of which may be stated to' be as follows, to wit: “1. Willful, unlawful, and malicious oppression, etc., of Edwards and Twyman under color of office of mayor. 2. Willful, unlawful, and malicious failure and refusal to sign certain warrants for John E. Penn, policeman. 3. Willful, unlawful, and malicious failure and refusal to sign certain warrant and ordinance for paying interest on portion of the public debt of the city of Moberly. 4. Willful, unlawful, and malicious failure and refusal to sign certain warrant for Will A. Rothwell, city attorney. 5. Because said Mayor Ragsdale having been convicted and judgment entered against him removing him from office, in the circuit court of Randolph county, Missouri, on the fourteenth day of February, 1895, had thereby forfeited his right to hold the office of mayor and become disqualified therefor.” State v. Ragsdale, 59 Mo. App. 590.

It further appears from said return that the relator was, on the seventeenth day of February, 1894, duly served by the city marshal of said city with a copy of said charges and specifications, and that on the nineteenth day of February following the relator was notified in writing that the said city council had set and appointed February 23 of said month then next following, at 7 o’clock p. m., as the time, and the council chamber in the city hall building in the city of Moberly, as the place, for hearing and trying the charges preferred against him as mayor, a copy of which had been served on him theretofore, on the seventeenth day of February, 1894.

It further appears from said return that on the twenty-third day of February, 1894, pursuant to a previous adjournment, the said city council met, the president pro tem. presiding, when all the twelve councilmen were present, and that upon motion the said council resolved itself into a court of impeachment for the purpose of hearing and trying the charges and specifications preferred against the relator mayor, etc., and that the clerk of the circuit court of the county administered the oath to each of said eouncilmen, that while sitting as a court of impeachment they would truly and impartially hear and determine the charges preferred by the city attorney of said city against the relator mayor, etc.

It further appears from said, return that the said president pro tem. of the council, on motion, was made presiding officer of said court of impeachment, and that Mr. Little was made clerk thereof; and that thereupon the city attorney being called upon to answer whether or not he was ready to proceed with the trial and investigation of the said charges answered in the affirmative and the said relator being likewise called upon appeared in person and by attorney and answered said inquiry in the negative and requested a continuance for the purpose of procuring the attendance of witnesses and otherwise preparing his defense, and that accordingly the hearing and trial of said charges were continued until the twenty-seventh day of February, 1894; that afterward, on the said last named date the council met pursuant to adjournment, when the relator, by his attorney, filed a demurrer to the said charges, which was overruled; that the relator’s attorney thereupon refused to enter any plea whatever. The court, after hearing the charges, notice,- and return read, proceeded to hear testimony in support of such charges. At the conclusion of all the testimony introduced, each charge and specification was read and the council, on motion, proceeded to vote upon the relator’s guilt or innocence thereunder, the vote being by ayes and noes, which resulted in a finding of guilty on each of said charges.

MratíonsfíhMpo" peltchment o™ It further appears that thereupon the said council unanimously adopted a resolution declaring the said office of mayor of said city to be vacant. The relator objects that there is no provision of the act of April 19', 1893, relatmg to cities of the third class (Sess. Acts, 1893, p. 65), which is, in effect, the charter of the city of Moberly, authorizing the council of that city sitting as a court of impeachment, to remove the mayor.

Section 11 of said act provides that: “The mayor may, with the consent of a majority of all the members elected to the city council, remove from office, for cause shown, any elective officer of the city. Such officer being first given opportunity, together with his witnesses, to be heard before the council, sitting as a court of impeachment. Any elective officer may, in like manner, for cause shown, be removed from office by a two thirds vote of all the members elected to the city council, independently of the mayor’s approval or recommendation.” It will thus be seen that the terms of this section are quite comprehensive, for it provides that any elective officer may in UJce manner, for cause shown, be removed, etc. By the terms, “in like manner” is meant such officer first being given an opportunity, together with witnesses, to be heard before the council sitting as a court of impeachment, as provided in the first clause of the section and this may be done independently of the mayor’s approval or recommendation. So that these terms are restricted in their reference as just stated. By the first clause the mayor may remove for cause, with the consent of a majority of the council; while, by the second, the council “in like manner” may remove by two thirds vote, independently of the mayor. The council have conferred upon them by the said section the power of removal by a two thirds vote in spite of the mayor, and an exertion of this power is not dependent upon his approval for its validity.

The seventh section of the act, it is true, provides that the mayor shall be president of the council; but the nineteenth section provides for the election of a president pro tem., who shall, in the absence of the mayor, preside at the meetings of the council, so that the council may meet and transact business as well when the mayor is absent as when present. The acts of the council, whether assembled for the performance of its ordinary legislative duties, or for those of a court of impeachment, are,'when presided over by the president pro tem. as valid as if presided over by the president. Where the record shows, as in this case, that the council was presided over by the president pro tem. at the time of the adoption of the resolution in question, we must presume the absence of the president. The record does not, therefore, in this regard, disclose any irregularity in the proceeding, or defect of jurisdiction.

II. It is contended by the relator that since the council had not passed an ordinance regulating the manner of impeachment and removals, as authorized by said section 11, it could not resolve itself into a court of impeachment. It is a sufficient answer to this to say that by the provisions of said section 11 is conferred the power to remove all elective officers for cause, and yet, while there are no means or measures whereby removals may be accomplished as therein provided, or by any ordinance passed in pursuance thereof, yet the grant of power by the section carried with, it all necessary incidental powers, without which the grant would be ineffectual. The general rule is that where a grant of power is given, all the means necessary to effectuate the power pass as incidents to the grant. State v. Walbridge, 119 Mo. 383; Ex parte Marmaduke, 91 Mo. loc. cit. 262; Sutherland on Stat. Const., sec. 391; Beach on Public Corporations, sec. 1314.

court of ¡m- . orfSanceh Here where the power of removal for cause is conferred and no notice is required to be given to the officer proceeded against, the law will imply that such notice be given. Laughlin v. Fairbanks, 8 Mo. 370; Wickham v. Page, 49 Mo. 526; Brown v. Weatherby, 71 Mo. 152. And what the law will imply is as much a part and parcel of a legislative enactment as though set forth in terms. State v. Board, 108 Mo. 235; Sutherland on Stat. Const., sec. 334. Therefore the section of the statute conferring the power of removal for cause needs no ordinance to render it operative — the means to effectuate the power conferred passed as a necessary incident. It is a self-executing statute in this respect.

0f offices0:™ common law. III. The relator further insists that the charges preferred against him, the nature of which have already been very briefly referred to, even if supported by evidence, are insufficient in law to justify his removal. According to the decision of Lord Mansfield in Rex. v. Richardson, 1 Burr, 517, there are three sorts of offenses for which one officer or corporator may be discharged. First. Such as have no immediate relation to his office, but are them-_ selves ox so infamous a nature as to render the offender unfit to execute any public franchise. Second. Such as are only against his oath and the duty of his office as a corporator and amount to breaches of the tacit condition annexed to his franchise or office. Third. Offenses of a mixed nature, as being an offense not only against the duty of his office but also a matter indictable at the common law. In offenses of the first class the removal can only be made after there has been a previous conviction in a court of law. In offenses of the second class, the corporation may try, and if the charge is established, remove without any previous or other proceeding in the courts. Offenses of the third class, the English judges have differed on the point whether the officer may or may not be removed before conviction in a court of justice. The Pennsylvania cases adopt the classification of Lord Mansfield and assert the inherent power of corporations to expel for offenses falling within any of the three classes. See cases cited in note 1 to section 251, Dillon’s Municipal Corporations.

—: Amer-It is very well settled in this country that the misconduct for which an officer may be removed must be found in his acts and conduct in the office .£rom vyhich his removal is sought and must constitute a legal cause of removal and affect the proper administration of his office. Speed v. Common Council, 98Mich. loc. cit. 364- The cause must be one which specially relates to and affects the administration of the office and must be restricted to something of a substantial nature directly affecting the rights and interests of the public. The cause must be one touching the performance of his duties showing that he' is not a fit or proper person to hold the office. In the absence of a statutory specification, the sufficiency of the cause should be determined with ^reference to the character of the officer and the qualifications necessary to fill it. State v. Common Council, 53 Minn. 238; State v. Love, 39 N. J. Law, 14; State v. McGarry, 21 Wis. 496; People v. Thompson, 94 N. Y. 451.

__.__; charges: notice. The specifications of the alleged, causes should be formulated with such reasonable precision and detail as shall inform the incumbent what dereliction of duty is urged against him. There should be a statement of the charges with specification of facts constituting a sufficient cause for removal, sufficiently distinct to apprise the incumbent of the grounds upon which the charges are founded. State v. Coalbridge, 62 Mo. App. loc. cit. 164; Andrews v. King, 77 Mo. 224; People v. Thompson, supra; Dillon on Mun. Corp., sec. 252, and cases there cited. And it was well settled in this state that a general power to remove a' municipal officer elected for a definite term confers only the power of removal for cause, by which is meant upon charges, notice, and trial. Stale v. Brown, 57 Mo. App. 199, and cases there cited. That the sufficiency and reasonableness of the cause of removal are questions for the courts have been settled since Baggs case reported in 11 Coke, 93 d; State v. Council, 53 Minn, supra; Dillon, Mun. Corp, sec. 252. The charges and specifications, when tested by the principles just adverted to, were, we think, sufficient to apprise the relator of the accusations which he was called upon to meet.

' ' IY. As to the objection that the notice is insufficient, it may be observed that in a proceeding to remove, the incumbent is entitled to personal notice of the proceeding against him and of the time when the trial body will meet. It is not necessary that the notice set out the charges in detail, but it should contain the substantial fact that the proceeding to remove is intended. The analogies of the ordinary procedure of the courts of the state, in the absence of statute or ordinances, may be followed respecting detail as notice, mode of service, and the like: Dillon on Mun. Corp, sec. 254, and cases cited.

By reference to the notice, the substance of which has been previously stated, it will be seen that it contains every essential required by the preceding stated rule. We have no doubt that the city council had jurisdiction in the premises, and since its proceedings seem to have been regular in every essential particular, there can be no ground upon which any reviewing court would be authorized to quash the same.

The judgment of the circuit court upholding the proceeding will accordingly be affirmed.

All concur.