Howe v. Dunlap

• Decision Date: 06 February 1903
• Citation: 72 P. 365,12 Okla. 467,1903 OK 22
• Parties: HOWE, City Atty., v. DUNLAP, Mayor, et al.
• Court: Oklahoma Supreme Court

72 P. 365

12 Okla. 467, 1903 OK 22

HOWE, City Atty., v. DUNLAP, Mayor, et al.

Supreme Court of Oklahoma

February 6, 1903

Syllabus by the Court.

1. Injunction is not the proper remedy to test the validity of the action of the mayor and council of a city who have removed the city attorney from office upon charges of misconduct in office; and injunction will not lie to restrain the mayor, council, and police judge from recognizing as city attorney the person elected as successor in office of the person so removed.

Burwell J., dissenting.

For dissenting opinion see 72 P. 895.

Action by R. D. Howe, city attorney, against A. J. Dunlap, mayor and others. Judgment for defendants. Plaintiff brings error. Affirmed.

The plaintiff in error was the city attorney of the city of Hobart, having been elected to that office in October, 1901. On February 11, 1902, he was removed from office by the mayor and council of the city of Hobart, upon charges of misconduct in office preferred against him. This action was commenced on the 20th day of February, 1902, following the action of the mayor and council in removing the plaintiff from his office. The plaintiff brought this action to enjoin the mayor, city council, and police judge from recognizing and treating the defendant Shepherd as city attorney of the city of Hobart and to restrain and prohibit Shepherd from usurping the office of city attorney, and to restrain such mayor, council and police judge from refusing to recognize the plaintiff as city attorney of the city of Hobart, and from depriving him of the honor, pay, emoluments, and the enjoyment of the rights and privileges of the office. A restraining order was issued by the probate judge, in the absence of the district judge from the county. A motion was filed to dissolve the temporary order of injunction. On the 3d day of March the motion to dissolve the injunction was heard by the judge of the district court, the motion was sustained, and the restraining order issued by the probate court was dissolved. Thereafter, at the regular April, 1902, term of the district court, the cause came on to be heard, and judgment was rendered against the plaintiff for costs. From these orders and judgments the plaintiff brings error.

Keys & Cline, for plaintiff in error.

McGuire & Parker, for defendants in error.

PANCOAST, J. (after stating the facts).

The plaintiff's contention is that the city council of the city of Hobart had no authority to oust the plaintiff from office, because such action required the exercise of judicial power, and all judicial power, by the organic act, is vested in the courts. The defendants in error admit that the judicial power of the territory is vested in the courts under the organic act, as claimed by the plaintiff, but they contend that the removal of a city officer is not the exercise of judicial power, but is an exercise of political power, and that such power is administrative and ministerial in its character, and that such acts are therefore within the power of the mayor and city council.

Numerous authorities are cited by both sides to sustain the propositions contended for. While these are the only questions raised in the briefs, yet we think that the case must be decided here upon entirely different grounds. First it will be noticed that the act of removal took place on the 11th of February, and that this...