Burch v. Hardwicke

• Decision Date: 14 March 1878
• Citation: 71 Va. 24
• Parties: BURCH v. HARDWICKE.
• Court: Virginia Supreme Court

71 Va. 24

BURCH v. HARDWICKE.

Supreme Court of Appeals of Virginia.

March 14, 1878

1. The chief of police of a city is the officer of the state, and not of the municipality in which he exercises his office.

2. For what officers performing their duties in a city are state and what are municipal officers, see the opinion of Staples, J.

3. Though under the constitution of the state, article 6, § 20 the mayor has authority to remove the officers of the municipality, the constitution does not invest him with the power to remove state officers, though they are elected by the people of the municipality or appointed by the municipal authorities, and are paid by them.

4. The charter of a city having provided for a board of police commissioners, and vested in them the power of removing the chief of police, only giving to the mayor the power of suspending the said officer for a short time, if the mayor removes the officer from his office he exceeds his power, and is responsible to the officer in a civil action for damages.

This was an action on the case in the circuit court of the city of Lynchburg, brought in July, 1873, by W. W. Hardwicke against George H. Burch. Burch had been for some time, and continued to be, mayor of the city, and Hardwicke was chief of police of the city. In May, 1873, Burch, acting under the authority claimed by him as mayor of the city, removed Hardwicke from his office of chief of police. The complaint in the declaration was, that Burch had, from malice and without any probable cause, removed the plaintiff from his office. The defendant demurred to the declaration, and filed the plea of not guilty, and also two special pleas, in which he claimed that, as mayor, he was, under the constitution, the executive officer of the city, and as such had the authority to remove from office any officer of the police for misconduct in his office; that Burch had been tried before him on specific charges of misconduct, which he set out in his pleas; and the defendant holding and believing the charges, or some of them to be sustained, had removed him from his office, as it was his duty to do.

The court overruled the demurrer to the declaration; and on the trial of the cause there was a verdict and judgment for the plaintiff for $1,600.

The defendant took three bills of exceptions to rulings of the court. The first was to the admission of certain evidence. After the plaintiff had introduced evidence to prove the malice of the defendant, and that he had determined to remove the plaintiff from his office under color of the authority of his office of mayor in consequence of his personal enmity and dislike, whether there was any cause for removal or not, and did afterwards wilfully prefer the charges mentioned in the declaration, and try the plaintiff upon them and remove him from office; the plaintiff then offered to introduce evidence to show that the said charges were false and malicious; but the court refused to allow him to introduce said evidence. But the court did allow him to introduce evidence to show what was the proof before the mayor on the trial of the plaintiff before him on said charges and specifications, in order that it might be shown whether or not there was any probable cause for the said charges and the removal of the plaintiff thereon. And to the admission of this evidence the defendant excepted.

The second exception is to an instruction given in answer to an enquiry by the jury. Two instructions had been previously given to the jury on the motion of the defendant. The substance of the two given at the instance of the defendant and that given in answer to the enquiry of the jury, are stated by Judge Staples in his opinion.

The third exception was to the refusal of the court to set aside the verdict and judgment, on the ground that the verdict was contrary to the instructions of the court and the evidence relating thereto.

Upon the application of Burch a writ of error and supersedeas was allowed him by this court.

J. Alfred Jones and Don P. Halsey, for the appellant.

Thomas J. Kirkpatrick and E. P. Goggin, for the appellee.

STAPLES J.

The questions presented by the demurrer to the declaration may be more satisfactorily disposed of in passing upon the instructions and the motion for a new trial. Two of the instructions were given on the motion of the defendant, and of course there is no complaint with respect to them. The third was given by the court in answer to a question propounded by the jury. In order properly to understand the bearing of this instruction, it will be necessary to recur briefly to the facts upon which it was based. It seems that one of the charges preferred by the defendant, as mayor, against the plaintiff, as chief of police, and upon which the removal of the latter was partly founded, was, that the plaintiff " had continued to act as agent for Dr. W. O. Owen, contrary to the express written and verbal order of the defendant, as mayor." When this charge was under investigation before the defendant, the plaintiff was examined on oath by the defendant, and admitted that he " was agent of Dr. Owen, to collect his medical accounts and keep his books; " but he also proved that he had not neglected any of his duties as chief of police by reason of his being such agent, and that he had not been occupied more than five minutes of his time any day in a year in attending to Dr. Owen's business; nor was there any evidence that he had ever neglected any of his duties as chief of police in consequence of such employment. The plaintiff also proved that he had been told by James W. Cobbs, the former mayor, John W. Carroll, president of the council, and James Garland, judge of the hustings court, members of the former police board, that he might act as such agent for Dr. Owen when it did not interfere with his official duties as chief of police, and that he had a like permission from two of the present board of police commissioners. It further appeared that while under examination before the mayor the plaintiff said that he had acted, and would continue to act, as agent of Dr. Owen, notwithstanding the order of the mayor. These matters, as they occurred before the mayor, were proved during the progress of the trial in the court below. The jury having retired to consult of their verdict, came into court and enquired of the court whether or no the mayor had a right to prevent the plaintiff from acting as agent of Dr. Owen. To this, the following answer was made by the judge in writing: " If the chief of police had a license by an order or permission from the board of police commissioners to act as collector or agent of Dr. Owen, or if by so acting his official duties as such chief of police were or could in nowise be interfered with, and his efficiency as a public officer in nowise impaired thereby, then the mayor had no right to inhibit him from so acting as collector or agent. But on the other hand, if he had no such license or permission from the police board, and his so acting did in any wise interfere with his duties as chief of police, or render him in any way less efficient as a public officer, then the mayor had a right to inhibit him from so acting, if he in good faith believed that the public interest would be promoted by so prohibiting him."

The main objection to this instruction is based upon the idea that the mayor is the chief executive officer of the city of Lynchburg, and as such has the supervision and control of the chief of police; that the propriety of his orders to that officer, or to any other subordinate, cannot be called in question in any other tribunal; that this rule is essential to the enforcement of discipline and the preservation of order; that the judge of the circuit court ought so to have told the jury, and that his answer in the form in which it was given was calculated to lead the jury to the erroneous conclusion that they had the right to pass upon the propriety of the order in question.

Without undertaking now to concede or to controvert the soundness of this proposition, I think it is sufficient to say that the learned judge of the circuit court, on the motion of the defendant's counsel, and in the very language selected by him, had already fully stated the law applicable to this branch of the case. He had declared that the gist of the action is want of probable cause; and although the jury should believe the defendant was hostile to the plaintiff, and was actuated by malice, still, unless each one of the charges of the defendant was unsupported by any evidence tending to prove it, or the charge was in itself so frivolous that the defendant did not and could not reasonably regard it as a real offence, they must find for the defendant; provided the matter so charged related to the official duty of the plaintiff, and was a misconduct in office or a neglect of official duty, or such as the defendant might reasonably believe, and did honestly believe, was such misconduct or neglect of official duty.

And the judge further told the jury, that if they believed from the evidence that any one of the specifications on which the defendant found the plaintiff guilty was a misconduct in office or neglect of official duty, proved to the reasonable satisfaction of the defendant, and being so proved, was, in his opinion, just cause for the removal of the plaintiff from office, they must find for the defendant.

Now, if these instructions, instead of preceding, had followed the answer given by the judge to the enquiry made by the jury, it is impossible there could have been any ground for misapprehension. The court gave the defendant all he asked. It laid down the law in his favor in the most liberal manner and we must suppose the jury had the intelligence...