Lowrey v. Mayor

• Decision Date: 29 November 1901
• Parties: LOWREY v. MAYOR, ETC., OF CITY OF CENTRAL FALLS.
• Court: Rhode Island Supreme Court

50 A. 639

23 R.I. 354

LOWREY

v. MAYOR, ETC., OF CITY OF CENTRAL FALLS.

Supreme Court of Rhode Island.

Nov. 29, 1901.

Application for certiorari by Patrick Lowrey against the mayor and aldermen of the city of Central Falls to review their proceedings in dismissing petitioner from the police department. Application denied.

Hugh J. Carroll, for petitioner.

Charles A. Wilson and John N. Butman, for respondents.

STINESS, C. J. The petition sets forth that on August 2, 1901, the petitioner, a police officer of the city of Central Falls, in its paid department, was suspended by the mayor on charges preferred against him, upon which he was tried on August 12, 1901, by the board of aldermen. The petition does not aver in express terms what the result of the trial was, but from the arguments and reference, in an amendment to the cause of error, to a section of the charter of the city "under which the petitioner was removed," we assume that the board dismissed him from the police force. But, even with this assumption, the petitioner fails to state a case for certiorari.

The first cause of error alleged is that the mayor did not preside at the meeting of the board. No provision of law is referred to which requires the mayor so to preside. The charter of the city requires the board to elect a president, who shall preside at all meetings of the board (Pub. Laws 1895, c. 1421), and we know of no change in this respect.

The second cause alleges that the aldermen were not sworn before proceeding with the trial. An additional cause sets out that the section "under which the petitioner was removed is unconstitutional, as it does not require the board, when sitting as a court, to be sworn, and because it deprives the petitioner of his rights without due process of law." Section 4, cl. 2, of the charter, provides that "the members of the paid police department of said city shall not be subject to removal from office at any time except for misconduct or incapacity of such a character as the board of aldermen may deem a disqualification for said office, and all such removals shall be by the board of aldermen, upon charges made in writing and of which the officer complained of shall have had notice and opportunity to be heard thereon." As the section does not require the aldermen to be sworn, the second cause is no ground for issuing the writ, unless it was necessary for the aldermen to be sworn before they could properly act upon the charges. The charter requires the mayor, aldermen, and common councilmen to be sworn when they enter upon their offices, and hence the question is whether a special oath is necessary when they perform duties of the kind involved in this petition. In support of his claim of unconstitutionality the petitioner relies on Torapert v. Lithgow, 1 Bush, 176, in which charges were made against a mayor; and the court held that the board of aldermen, under the terms of the charter, could only become a court to try charges preferred against a city officer upon being duly sworn. An inspection of the charter of Louisville (2 Acts Ky. 1850-51, p. 606) shows that the charter provided as follows: "Executive and ministerial officers of the said city shall be removable from office by the board of aldermen sitting as a court duly sworn." In view of this provision, the case has no application to the question before us. The charter does not violate article 11 of the constitution of this state, because section 3 provides that the governor and all other executive officers shall be liable to impeachment. Evidently this relates only to state officers; for, the sole power of impeachment being vested in the house of representatives, with a trial by the senate,...