Metsker v. Neally

• Decision Date: 01 January 1889
• Citation: 41 Kan. 122,21 P. 206
• Parties: D. C. METSKER, as Mayor of the City of Topeka, et al., v. GEORGE T. NEALLY
• Court: Kansas Supreme Court

21 P. 206

41 Kan. 122

D. C. METSKER, as Mayor of the City of Topeka, et al., v. GEORGE T. NEALLY

Supreme Court of Kansas

January 1, 1889

Error from Shawnee District Court.

THE opinion states the case.

Judgment affirmed.

W. A S. Bird, city attorney, A. Bergen, and W. C. Webb, for plaintiffs in error.

Rossington Smith & Dallas, and W. P. Douthitt, for defendant in error.

HOLT C. All the Justices concurring.

OPINION

HOLT, C.:

This is an action in mandamus. The alternative writ sets forth substantially that George T. Neally was the city engineer of the city of Topeka, a city of the first class; that on the 3d day of July, 1888, D. C. Metsker, as mayor, attempted to suspend him from his office, and place therein William Tweeddale; and that John F. Carter, as city marshal, acting in concert with the mayor, forcibly and unlawfully deprived plaintiff of his office-room, books, papers, records, etc., and prevented him from exercising the duties of his office. The defendant moved to quash the writ, which was overruled by the court, and, they declining to make any further return, the alternative writ was made peremptory. The defendants, plaintiffs in error, excepted to this judgment, and bring the case here for review.

The defendants say, first, this action cannot be maintained against them, claiming that the plaintiff was simply suspended from his office, not removed; in their brief they seek to make a distinction between the authority to amove a city officer and to suspend him. They claim that the authority to amove a city officer requires a greater amount of power than to simply suspend him; that a mayor, by virtue of his office, and as an incidental and inherent power thereof, can at any time suspend an officer, even though he may have no power given by statute or ordinance to amove him. They cite authorities which are to the effect that the power to suspend is included in the power to amove. We can readily believe that the greater power to amove might include the lesser one to suspend, but we have failed to notice any instance where the power to amove is not conceded that the authority to suspend is admitted. In this instance the plaintiff was not suspended pending any examination of charges against him, which if found true would have been grounds for a removal; he was suspended without charges against him, and without notice.

We cannot accept the claims of defendants as to the wide difference between removal and suspension from a municipal office. In its effects, so far as the merits of this action are concerned, the plaintiff would be deprived of his office whether removed or suspended, in one way permanently, in the other for an indefinite and uncertain time. In some instances a suspension would practically be equivalent to a removal; it would be the case where the duration of the suspension extended beyond the term for which the officer suspended was elected or appointed. We fail to see any difference between an illegal removal and an illegal suspension, so far as this action is concerned, except in the possible difference of time the officer would be deprived of the possession and enjoyment of his office; certainly when it comes to the remedies for the restoration of an officer unlawfully removed or unlawfully suspended, we cannot perceive why the remedy in one case should not be applicable in the other. If the mayor exceeded his powers in suspending plaintiff, and the city marshal, as an officer, and the de facto, or as defendants style him the "ad interim engineer," assist in keeping him out of the lawful occupation and peacable possession of the same, then this writ was properly issued.

It fact it is not seriously disputed by the defendants that mandamus would be the proper remedy to restore a party to an office from which he had been illegally removed. The same reasons given to sustain this remedy in cases of removal, apply with equal force where the occupant of an office had been illegally suspended. If the title to this office were in dispute, the action to determine it would probably be quo warranto; but it is admitted that the plaintiff was the city engineer by regular appointment, and in the actual and lawful possession and enjoyment of the office. There is no question of a contested election or disputed right to this office, except as it arises from the suspension alone. The plaintiff up to July 3d was the city engineer by undisputed right: was he legally or illegally suspended? -- that is the sole question to be decided in this action. We believe mandamus is the proper action to restore an officer to his office when he, having the actual possession and undisputed right to the same, is illegally ousted therefrom, whether by removal or suspension. (The State, ex rel., v. Common Council, 9 Wis. 254; The State v. Jersey City , 1 Dutch. 536; Rex v. Barker, 3 Burr 1266; Fuller v. Trustees, 6 Conn. 532; Howard v. Gage, 6 Mass. 462; In re Strong, Petitioner, 37 id. 484; County Court v. Sparks, 10 Mo. 117, 118; Commonwealth v. Guardians, etc., 6 Serge. & Rawle 469; Milliken v. City Council, etc., 54 Tex. 388; Ex parte Wiley, 54 Ala. 226; Dill. Mun. Corp. § 248, and note; High Ex. Rem., §§ 67, et seq., and 407-409.)

If the suspension of plaintiff was unauthorized there could have been no vacancy to fill, and the appointment of Tweeddale was without authority of law; and plaintiff's office-room books, records, instruments, insignia,...