Polk v. State

• Decision Date: 30 June 1837
• Citation: 4 Mo. 544
• Parties: POLK v. STATE OF MISSOURI.
• Court: Missouri Supreme Court

4 Mo. 544

POLK

v.STATE OF MISSOURI.

Supreme Court of Missouri.

June Term, 1837.

TRUSTEN POLK, for Plaintiff in Error.

1. The city attorney is a creature of the corporate authorities, vide City Ordinances, p. 113. If so, he may be displaced by them, for the same power that creates may destroy. For the regulations therefore, governing the action of the authorities of the city in regard to the office, we are not obliged to look to the charter, when that office is not created in the charter.

2. But the charter does authorize the removal of city attorney. See Ordinances, p. 61; and the Mayor and Board of Aldermen did remove; there is a joint action between them. The vote of the Board, and the letter of the Mayor, of date of 24th January, 1837, show that fact.

3. It is objected that the act of removal must be approved by the Mayor. The charter does not require that it should, for this is a resolution, and not an ordinance. They have passed an ordinance creating and regulating the office (see Ordinances 113, 114); and of course, there was no necessity for any further ordinance. Is every nomination and choice a separate ordinance, and that too, when they are made under an ordinance?

4. But if approbation is necessary, it has been given prior to action of Board; see letters of Mayor, preserved in bill of exceptions, 24th, 27th and 30th January, 1837, and given subsequently also by the Mayor assenting to the vote of the Board, and by his nominating a successor.

5. If the removal must be by ordinance, it has been by ordinance in the present instance; for the act of removal in this case has all the requisites and solemnities of an ordinance. The charter requires (section 33 ordinances, p. 61), “that every ordinance which the Board of Aldermen shall pass, before it becomes a law shall be presented to the Mayor for his approbation;”--this was so presented. Again: “if the Mayor shall not approve an ordinance presented to him for his approbation, he shall return it to the Board of Aldermen with his objections.” See Ordinances, p. 61. But here the Mayor did not return the ordinance with his objections; so of course, he gave the assent required by the charter. Nay, more, the charter requires that if he does return it within three days it becomes a law;--here there was not only no return within three days, but none at any time. But it is said that this act of removal did not commence with the phrase “Be it ordained by the Mayor and Board of Aldermen of the city of St. Louis,” and therefore cannot be good. I answer, that, if it have the substance it matters not about the form. If the action of all the powers required by the charter was in fact had--and with the solemnities required for such action, it is enough. The maxim “ qui hæret in litera hæret in cortice, ” applies. But the charter says, (see section 36 ordinances, page 61), that the style only of ordinances shall be as above quoted--not that nothing else shall be an ordinance--not that an ordinance shall not become a law until it is so worded at the commencement; whereas, the same charter provides--see section 33, same page of ordinances, that every ordinance before it becomes a law, shall be approved by the Mayor. Thus laying much more stress on the approval of the Mayor than it does on the mere form of language used, as indeed it ought to do--thereby making the approval of the Mayor matter of substance, and consequently indispensable; and the caption and mere language only matter of form, and therefore not important, and liable to be dispensed with. The act of removal, therefore, is good and valid be it either ordinance or resolution.

6th. But it is said that the ordinance which creates city attorney does not provide for his removal, and therefore the removal is illegal. I answer, that if the ordinance does not provide for the removal, the charter, which is higher and paramount to the ordinance, does. And the very fact, that the city authorities did not make provision for removal in the ordinance, is proof conclusive that they meant to exercise the power generally, and remove from office whenever they should deem the interests of the city require it.

7th. Is it said that in order to a valid removal there must be the action of the same powers that created the officer? We have that in the present instance. The Mayor nominated the former incumbent, Alonzo W. Manning, and the Board advised and consented. The Board voted that incumbent out of the office, and the Mayor approved and assented to the vote--see letters 24th, 27th and 30th January, 1837. The same powers, therefore, that filled the office vacated it. But it is said that the assent of the Mayor was not until after the action of the Board in the case of the removal; whereas, in the appointment it was first. I answer, it matters not whether it was first or last, so it was given. If the joint action of the Board and Mayor is required, and if they cannot both act in the same identical moment, it matters not for the sufficiency of the result which acts first. Two and three make five as fully as three and two make five. Besides, the charter does not require that the action of the Mayor should be first, and this settles the controversy. But here in point of fact, is both a prior and subsequent assent and approbation. The Mayor first points out the requisites and mode of vacating, which suggestions are followed by the Board, and subsequently, he gives his approbation by not returning the ordinance with his objections, according to the charter as above stated; and not only so, but also by nominating a successor, the present appellant.

8th. But it is not necessary that the same powers that create should act in displacing. The President under the Constitution of the United States, in cases where the provisions are similar to those governing the city authorities in the selection of city attorney, displaces an officer of and by his own motion and act--even when the nomination of that officer to his office had been confirmed by the Senate. As for instance, it requires the nomination of the President and the advice and consent of the Senate to depute a foreign ambassador. But the President recalls that Minister, and perhaps, gives him some other office under his government, by his own and sole act.

9th. If the removal of the former incumbent--the present relator be valid-- then it is not and cannot be questioned that the appointment of the present occupant is legally made; and that he consequently lawfully holds, uses and exercises the said office of attorney and solicitor for the Mayor, Aldermen and citizens of the city of St. Louis.

10th....