Christy v. City of Kingfisher

• Decision Date: 04 March 1904
• Citation: 13 Okla. 585,1904 OK 19,76 P. 135
• Parties: T. P. CHRISTY v. THE CITY OF KINGFISHER.
• Court: Oklahoma Supreme Court

1904 OK 19

76 P. 135

13 Okla. 585

T. P. CHRISTY v. THE CITY OF KINGFISHER.

Supreme Court of Oklahoma

Decided: March 4, 1904

Syllabus

¶0 1. REMOVAL OF CITY OFFICER. Where the legislature enacts a general law on the subject of cities of the first class, and in one article provides that any city officer, except the mayor, may be removed for cause by the mayor and the city council, and in another article provides that the city marshal may be removed by the mayor and city council for certain causes, naming them, upon complaint, the provisions of the article relating to the marshal will control, and it will be presumed that the legislature did not intend to include such officer within the terms of the general statute for the removal of officers.

2. SAME--Judicial Action, When--Construction of Statutes. A law which authorizes the removal of a public officer for specified causes, such as intoxication, gambling, abuse of power, brutal or indecent conduct, the acceptance of bribes, etc., unless excluded by the language of the statutes, implies notice to the accused of the nature of the charges, and time of hearing, the right to introduce evidence in his own behalf after a case is made out by his accusers, and to be represented by counsel, who may cross-examine the witnesses against him; and he cannot lawfully, under such a statute, be removed without an opportunity to introduce his evidence and make his defense. And the burden is upon those prosecuting the charges to establish them; and a statute which authorizes a city council to hear and determine such charges and to enter an order of removal, but fails to provide for an appeal to, or review in the courts of the territory is absolutely void, because the hearing of evidence, weighing the same and rendering a decision based thereon, is judicial action, and, under section nine of the organic act of Oklahoma, the entire judicial power of this territory is vested in certain named courts, and a city council is not one of them.

3. POWER OF LEGISLATURE. The legislature of this territory has the power to authorize the mayor and city council of a city of the first class to remove summarily any elective or appointive city officer without notice or hearing, as it may legislate upon all rightful subjects of legislation, provided its acts do not contravene the provisions of the constitution of the United States or of some act of congress; but if it attempt to authorize such mayor and city council to remove such officer for specified cause, upon hearing and evidence, while that part which authorizes the removal for the causes named, will be upheld, the right of the mayor and city council to try him will be denied, because the procedure called for judicial action, and not the exercise of political power. The nature of the power is not determined from the mere removal of the officer, but from the procedure by which his removal is to be effected.

4. MANDAMUS. One who has been duly elected to the office of city marshal is entitled to the possession of the property and paraphernalia belonging to such office, and a writ of mandamus will not issue on the application of the mayor, for the city to compel such officer to surrender the possession of said property, where the only reason assigned for such writ is that the marshal has been removed from his office by the city council; as the courts will take judicial notice that under the law of this territory the city council have not the power to lawfully make such an order.

Error from the District Court of Kingfisher County; before C. F. Irwin, Trial Judge.

J, C. Robberts, for plaintiff in error.

M. J. Kane, for defendant in error.

BURWELL, J.:

¶1 T. P. Christy was duly elected city marshal of the city of Kingfisher at the April election in 1899, for a term of two years. Complaint was filed against him for corruption in office, and he was suspended by the mayor. He asked for an opportunity to introduce evidence and be heard in his defense; and, although the matter was continued once for that purpose, he was denied that privilege, and the mayor and council passed a resolution purporting to remove him from office, and the mayor, in the name of the city, commenced this action in mandamus to compel Christy to turn over to the city all of its property in his possession, and commanding him to desist from further acting in the capacity of city marshal. To the alternative writ he filed his return, setting up fully all of the facts, and on this return the district court granted a peremptory writ and taxed the cost to the defendant. From this judgment Christy appeals.

¶2 Even if the city council had the power to remove the marshal from office (which we most positively deny), their action, as presented by the record, shows an apparent determination to accomplish his removal without the slightest effort to afford him an opportunity to refute the charges preferred against him. Such a proceeding ought not to be upheld, unless compelled by law, because the city marshal is an elective officer, and when the people have expressed a choice for the place, he should be permitted to serve out his term, unless, in violation of his trust, he wilfully breaks some territorial statute or city ordinance, or is derelict in the performance of his duty; nor do we believe, in the light of our organic act and the provisions of our statutes, that it can be sustained. But let us here suggest that we do not deny the power of the legislature, by proper enactment, to grant to a city council the right to remove from office any city officer, whether he be elected or appointed, as the legislative power of the territory extends to all rightful subjects of legislation, not in conflict with the constitution of the United States or the laws of congress, and it cannot be gainsaid that the removal of public officers is a rightful subject of legislation; and while some of the earlier authorities held that the removal of an elective officer calls for judicial action (and perhaps this doctrine is still adhered to by some of the states) we think, in this territory, the removal of any officer, either elective or appointive, under the territorial laws, may call for judicial action, or for the exercise of executive or administrative power; and it is not the character of the power delegated by the legislature for the removal of officers which determines to which branch of the territorial government it belongs, but the manner in which the power shall be exercised. For instance, the legislature might authorize any executive or administrative officer or legislative body to remove arbitrarily certain officers, in his or its discretion, But if the law authorizes removal for specified causes alone, then the officer is entitled to be heard and to introduce evidence in his defense; and the officer or body trying the matter must weigh the evidence and pronounce judgment thereon; and the hearing of evidence, weighing the same, and arriving at a conclusion therefrom and announcing it is judicial action; and, under our organic act, the judicial power of the territory is vested in the supreme court, district courts, probate courts and justices of the peace, and the legislature has not the authority to confer judicial power upon any other court, person, body or tribunal. (Territory of Oklahoma ex rel. Edgar Jones v. Hopkins, 9 Okla. 133, 59 P. 976; Perris v. Higley, 20 Wal. 375, 22 L. Ed. 383; Bardrick et al. v. Dillon et al., 7 Okla. 535, 54 P. 785; Spencer et al. v. Sully Co., 33 N.W. 97.) While several cases can be found which hold that the removal of an officer for cause is not a judicial act, the strongest case that can be found on that side of the question is Donahue v. County of Will. et al., 100 Ill. 94; but a number of the authorities cited do not support the principle contended for therein, as, for instance, several cases hold that the removal of certain officers does not call for judicial action, which we concede, because, under the statute of the states from which these authorities are collated, the removing officer is given the unconditional power to remove, and others cited clearly support the view here contended for. One of these cases is State ex rel. Willis v. Prince, 45 Wis. 610. The statute on which the decision was based provided for charges, notice of the time of hearing, the right to introduce evidence, and finally, for an appeal to the circuit court; and it was held by the supreme court of Wisconsin in this very case, that the board in question was by the statute given the widest judicial discretion, and that its judgments could not be collaterally attacked. The general principles announced by the Illinois court, in the main, are correct; but it proceeds upon the theory that an office is not property; that no one owns an office. If these expressions used are intended to convey simply the idea that no one has such an interest in an office as will prevent the power creating it from abolishing it, or that an office is not the subject of inheritance, we grant it; but we cannot subscribe to the not uncommon theory that an officer, because a public servant, has no rights which are bound to be respected. A public office, while not property, is a position held of right by election or appointment, and all of the courts are quick to protect one in the enjoyment of those rights. They may differ, as on the question now under consideration, as to what his rights are, but whatever the court conceives them to be, it will protect as quickly and as fully as though it were property; and though this is done in one sense for the benefit of the state, the right of the officer is worthy of some consideration. In a country like this where the humblest citizen may aspire to the highest position, the courts, before sanctioning the summary removal of an officer who has been selected by the whole people of a city, and the filling of his place by six or eight councilmen, should be clearly justified by law....