Conwell v. Village of Culdesac

• Decision Date: 11 November 1907
• Citation: 92 P. 535,13 Idaho 575
• Parties: R. CONWELL, Plaintiff, v. THE VILLAGE OF CULDESAC, a Municipal Corporation, Defendant
• Court: Idaho Supreme Court

92 P. 535

13 Idaho 575

R. CONWELL, Plaintiff, v. THE VILLAGE OF CULDESAC, a Municipal Corporation, Defendant

Supreme Court of Idaho

November 11, 1907

VILLAGE GOVERNMENT-POWER TO REMOVE POLICE OFFICER-JURISDICTION OF BOARD OF TRUSTEES.

1. In the absence of legislation indicating a contrary purpose or intention, the authority granted a municipal corporation to appoint a police officer whose term is not fixed by law carries with it the implied concurrent power to discharge such officer.

2. The remedy provided by sections 7445 to 7459, Revised Statutes inclusive, for the removal of civil officers is not an exclusive remedy, nor does it prohibit village trustees from removing appointive officers.

3. The removal of a village marshal by the board of trustees is not such an exercise of judicial power as to be repugnant to the provisions of section 2 of article 5 of the constitution.

(Syllabus by the court.)

ORIGINAL application for writ of prohibition. Demurrer to petition sustained, writ denied, and petition dismissed.

Demurrer sustained. Petition dismissed and writ denied. Costs awarded in favor of the defendant.

A. J Green, and Stewart S. Denning, for Petitioner.

Where the law of the state provides a remedy for the removal of the officer, who has been guilty of willful and corrupt misconduct, and also for extortion and refusing to perform the duties of his office, and the remedy is complete and drastic, and no power of amotion has been granted by the state by general law or otherwise, but the history of the legislation of the state shows that such power has been expressly withheld, either on account of the state constitution or the general policy of the state, whenever the municipal corporation assumes the power of amotion or removal, then they act without jurisdiction and their acts are void.

It was the intention of the legislature of the state of Idaho to take this power of amotion out of the hands of the several boards of trustees and the city council (except in cases of policemen in cities of the second class), so that they could not by any majority play politics and shuttlecock with those offices. (Coffey v. Superior Court, 147 Cal. 525, 82 P. 75, 2 Cal.App. 453, 83 P. 580; Folsom v. Conklin, 3 Cal.App. 480, 86 P. 724.)

John Green, and Edward S. Fowler, for Defendant.

The power of amotion, or removal of a corporate officer from his office, for just and reasonable cause, is one of the common-law incidents of all municipal corporations. (1 Dillon's Municipal Corporations, 3d ed., sec. 240; Richards v. Clarksburg, 30 W.Va. 491, 4 S.E. 774; Croly v. Board, 119 Cal. 229, 51 P. 323-325; 1 Smith's Modern Law of Municipal Corporations, sec. 200; State v. Walbridge, 119 Mo. 383, 41 Am. St. Rep. 663, 24 S.W. 457; Mayor v. Grayson, 104 Ga. 105, 30 S.E. 693; Coffey v. Superior Court, 147 Cal. 525, 82 P. 75.)

There are certain provisions in the Penal Code for removal of public officers. One of these is by presentment by the grand jury. (Rev. Stats. 1887, sec. 7445.) In Revised Statutes, section 7459, it is provided that an officer may be removed by the court for collecting fees or for refusing or neglecting to perform the duties of his office.

These provisions are not exclusive. There is no inconsistency or conflict between the right of a municipal board to remove unworthy officers, and the right of the court to remove them upon information by the grand jury, or upon a verified information by any person. (Coffey v. Superior Court, supra.)

This procedure, if exclusive, would provide small protection to municipal corporations against corrupt officials. It cannot be presumed that the legislature intended to make exclusive a remedy which, by being exclusive, would, in its practical working, defeat its own object.

In section 1881, Political Code of 1901, it is provided that the board of trustees may also appoint such night watch and police as may be necessary. Under this section no office of city marshal, or of street commissioner is created. There is no other section of the code creating any such office. Consequently, the office which plaintiff and relator claims to hold must be an office created by ordinance, or be no office at all.

If they had authority to appoint a street commissioner, they had it merely as an inherent power which every governing board of a municipal body must have. If they had authority to appoint a city marshal, they had such authority either as an inherent power of their body, or because the office would perhaps come under the term night watch or police. In such case, the city council can remove the officers appointed, at pleasure, either with or without cause. (Mathis v. Rose, 64 N.J.L. 45, 44 A. 875.)

In the case at bar there is nowhere any statute indicating that the officers appointed shall hold office for one year, or for any specified time.

The power to remove from office is incident to the power to appoint, in the absence of some provision of law or an act of the legislature fixing the duration of office and the mode of removal. (23 Am. & Eng. Ency. of Law, 435; Parish v. City of St. Paul, 84 Minn. 426, 87 Am. St. Rep. 374, 87 N.W. 1124.)

AILSHIE, C. J. Sullivan and Stewart, JJ., concur.

OPINION

AILSHIE, C. J.

This is an original application for a writ of prohibition against the board of trustees of the village of Culdesac. The petitioner alleges that the board appointed him marshal and street commissioner for the period of one year, and that they thereafter summarily removed him, whereupon he applied to the district court in and for the second judicial district and was reinstated by order of the court. Charges were thereafter filed with the board against petitioner, and they served notice on him of the time and place fixed for a hearing on the accusation. He then applied to the district court for a writ of prohibition against the board taking further action, and his petition was denied. He then applied to this court. The contentions made by the petitioner are that the board of trustees have no further jurisdiction to hear or consider charges made against him, and no authority or power to discharge him for any cause until the expiration of the term for which he was appointed, and that the only way in which he can be removed from office is in accordance with the procedure prescribed in chapter 2, title 2, part 2 of the Penal Code (Rev. Stats., secs. 7445-7459).

The first thing to be considered is the authority of law under which the petitioner was appointed. By act of March 11, 1901 the legislature amended section 47 of the act of February 10, 1899, entitled, "An act to provide for the organization, government and powers of cities and villages," and as amended the section reads as follows: "Such board of trustees shall appoint a clerk, treasurer and attorney, and they may also appoint such night watch and police as may be necessary, who shall have power to arrest all offenders against the law of the state, or of the village, by day or by night, in the same manner as the sheriff or constable, and keep them in the village prison or other place, to prevent their escape, until trial can be had before the proper officer." It will be...