Carter v. City of Durango

• Decision Date: 06 November 1891
• Citation: 27 P. 1057,16 Colo. 534
• Parties: CARTER v. CITY COUNCIL OF CITY OF DURANGO.
• Court: Colorado Supreme Court

27 P. 1057

16 Colo. 534

CARTER v. CITY COUNCIL OF CITY OF DURANGO.

Supreme Court of Colorado

November 6, 1891

Petition by Robert Carter for writ of certiorari to quash and annul the action of the council of the city of Durango in removing him from an office. Rule to show cause discharged.

Syllabus by the Court

1. When the tenure of a municipal office is at the pleasure of the appointing body, the power to remove is discretionary, and may be exercised without notice or hearing.

2. The city council is primarily a legislative and administrative body, but it may now be clothed with at least quasi judicial authority in connection with removals from municipal offices.

3. A distinction in regard to the manner of removals exists between those offices which are of the essence of the corporation and those which are not. A removal from an office (that of alderman, for instance) which is of the essence of the corporation can only take place for cause, and must be upon notice and investigation, with opportunity to be heard.

4. The motives actuating councilmen in connection with removals are not ordinarily subject to judicial inquiry, and, in the absence of deception or fraud, courts decline to interfere with the declaration of discretionary municipal pleasure by the council.

5. It is not within the power of a municipal corporation, by ordinance or by-law, either to extend or restrict the authority conferred upon the council by statute.

O. S. Galbreath and W. E. Beck for petitioner.

Reese McCloskey, City Atty., ( Russell &amp McCloskey and Wilson & McCloskey, of counsel), for respondent.

HELM C.J.

Carter was duly elected by the city council police magistrate of the city of Durango. While engaged in the discharge of his duties, the council by resolution removed him, and appointed a successor. The present proceeding is brought to quash or annul the action of the council in the premises, upon the ground that such action was without jurisdiction. Under the statute existing at the time of the proceedings recited in the record, the police judge or magistrate, whose appointment was optional with and made by the city council, held his office during the 'pleasure' of that body. Mills' Ann. St. § 4504. When the tenure of a municipal office is at the pleasure of the appointing body the power to remove is discretionary, and 'may be exercised without notice or hearing.' 1 Dill. Mun. Corp. (3d. Ed.) § 250. Counsel for petitioner ably and ingeniously argue that the statutory provision above mentioned, subjecting the police magistrate's incumbency to the 'pleasure' of the council, does not correctly indicate the intention of the legislature; that it was adopted by inadvertence or mistake, while attempting to amend otherwise the section in which it occurs. Some of the reasons advanced are plausible, and may be sustained by the rules of construction relied on; but, without specifically considering either the reasons or rules in question, it is sufficient for us to say that more controlling, and at least equally pertinent, principles of statutory interpretation, forbid our acceptance of counsel's theory. The provision must be regarded as in full force, and binding upon the judiciary. The city council is primarily a legislative and administrative body. Its powers and duties are not essentially judicial. In People v. District Court, 6 Colo. 534, a doubt was expressed as to whether, under the constitution, the council could be invested with judicial authority. We there held, in effect, that an investigation of charges preferred against the city solicitor with a view solely to removal from office was not a judicial proceeding. We are now inclined to say that, while the action in question was not an exercise of ordinary judicial power, it might have been termed quasi judicial. ...