Rawlings v. City of Newport
| Decision Date | 01 November 1938 |
| Citation | 275 Ky. 183,121 S.W.2d 10 |
| Parties | RAWLINGS v. CITY OF NEWPORT et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Campbell County.
Suit in equity by John T. Rawlings against the City of Newport, Ky and others to set aside the action of the Board of Commissioners of the City of Newport in removing John T Rawlings as city manager. From the judgment, John T. Rawlings appeals.
Affirmed.
Charlton B. Thompson, of Covington, for appellant.
Carl Ebert, of Newport, for appellees.
Appellant John T. Rawlings, was appointed City Manager of Newport, Kentucky, a city of the second class, in January, 1936. He was elected to this office by the affirmative vote of the mayor and two members of the Board of Commissioners, the other two commissioners voting negatively. Rawlings served in this capacity unmolested until the early part of January, 1938. In the November election, 1937, the two commissioners, who had voted with the mayor to elect Rawlings as City Manager in 1936, were defeated, and the two who opposed his election were re-elected. The mayor was elected for a four year term in November, 1935. When the new commissioners, appellees, went into office January 3, 1938, they immediately attempted to remove Rawlings as City Manager. J. Bailey Morlidge, one of the appellees, was designated as Acting City Manager. The mayor voted to retain Rawlings in office. On the same day (January 3) that the commissioners attempted to remove Rawlings from office he filed a written demand for charges and a public hearing as authorized under section 3235dd-33 of the Statutes. Having resolved to file the charges against Rawlings, the commissioners, the mayor voting "No", suspended Rawlings without pay, pending the hearing of the charges. At the January 3rd meeting the Board of Commissioners adopted a resolution (No. 279) creating and appointing a Board of Inquiry under section 3235dd-36 of the Statutes, "to ascertain the financial status of the City of Newport, Kentucky, and general condition of all various administrative departments thereof."
Following the action of the commissioners, and before noon January 3rd, Rawlings filed a suit in the Campbell circuit court in which he sought to have the commissioners enjoined from enforcing the proceedings just taken, and to reinstate him as City Manager. On January 7, 1938, the four commissioners filed an affidavit in the case pending against them in the circuit court, attacking Rawlings in his capacity as City Manager. The motion for a temporary injunction was overruled by the court on January 13, 1938. Rawlings filed a motion with the Clerk of the Court of Appeals for a temporary injunction on January 18, 1938, together with a notice which had been accepted on January 14, 1938. On January 24, 1938, Chief Justice Stites entered an order directing that a temporary injunction be granted upon the ground that the suspension of Rawlings as City Manager without charges was illegal. On the morning of January 25, 1938, the circuit court of Campbell county entered an order reinstating Rawlings as City Manager of Newport. The Board of Commissioners met and reinstated Rawlings, and within an hour suspended him, the mayor voting "No".
In the meantime, the Board of Commissioners, pursuant to their decision to file charges against Rawlings, filed fifteen charges, with a number of exhibits, in the name of the Board of Commissioners. The charges were subscribed and sworn to by the four commissioners; the mayor not joining in the action. Rawlings was furnished with a copy of the charges. The notice set the public hearing for January 25, 1938, at 9 a.m. Counsel for Rawlings appeared at the hearing and objected to the hearing at that time because of the conditions and events just reviewed, and moved that the hearing be set aside. The objection and the motion were overruled by the Board; the mayor voting "No".
Before the taking of evidence began, Rawlings filed 10 motions with reference to the charges, seeking to have certain ones made more definite and others to be quashed. All the motions, with the exception of one relating to charge 14, and another to make one charge more definite and certain, were overruled. Charge 14 was dropped from the list. All of the evidence taken before the Board was transcribed and it was agreed that this transcript of the proceedings should be official. Rawlings was given full opportunity to present witnesses in his own behalf. The hearing lasted from January 25th until ten o'clock in the evening of January 31, 1938, with some intermissions. At the close of the hearing the Board took the case under submission. On February 5, 1938, it convened at a special meeting with the official stenographer present, but without notice to Rawlings or his attorney. At this meeting a motion was offered and adopted to the effect, "that the charges be sustained; that John T. Rawlings be found guilty thereof, and that said John T. Rawlings be finally removed as City Manager of Newport, Kentucky". The four commissioners voted in favor of the motion and the mayor voted against it.
On April 21, 1938, Rawlings filed a petition in equity in the Campbell circuit court covering some 40 pages, including the charges, in addition to certain exhibits, and the transcript of evidence taken at the hearing before the Board of Commissioners. The petition reviewed the happenings in connection with Rawlings' removal up to that time. Appellant contended that his removal by the Board was arbitrary, and he asked that the court review the Board's action. In his prayer he asked that the action of the Board of Commissioners in removing him as City Manager be cancelled, set aside and held for naught; that the Board be enjoined to remove appellee, Morlidge, from the office of City Manager and to reinstate him, Rawlings, to the office; that the Board be enjoined from preventing him in discharging the duties of the office of City Manager; and that Morlidge be perpetually enjoined from setting up any claim to said office or the salary thereof, and from interfering with him, appellant, in the performance of the duties of the office of City Manager. By amended petition Rawlings contended that the action of the Board of Commissioners in the hearing of the charges against him denied to him his rights under the statutes and under the Constitution of Kentucky, and also denied him due process of law and equal protection of law, and further deprived him of his rights under the 14th Amendment to the Constitution of the United States, U.S.C.A.Const. Amend. 14. Appellees demurred to Rawlings' petition, and on August 2, 1938, the circuit court sustained the demurrer. Appellant's motion for a permanent injunction was overruled and his petition dismissed, to all of which he objected and excepted and prayed an appeal to this Court, which was granted. Judgment was entered accordingly in the circuit court, and from this judgment Rawlings appeals.
Appellant, Rawlings, urges reversal of the lower court's action because (1) the actions of the four commissioners prior to the hearing on January 25, 1938, show that they were prejudiced against him, and had so prejudiced the case that a fair trial for him was impossible; (2) the failure to administer an oath to the members of the Board before the hearing began was a fatal defect which would nullify the proceedings; (3) the proceedings before the Board denied Rawlings due process of law in that (a) the charges as a whole were insufficient, (b) there was no substantial evidence to support the removal, and (c) the failure of the Board to make any findings of fact, or to state under what charges it acted, made the removal void; and (4) the proceedings before the Board were conducted in such an unfair manner as to make the removal void.
Before passing to the more important issues, we will dispose of appellant's contention that the failure to administer an oath of office to the members of the Board before the hearing began was a fatal defect. In the case of Tompert v. Lithgow, 1 Bush 176, it was held that the Board of Aldermen of Louisville erred in not being duly sworn, as provided in the city charter, before sitting as a court to try charges against the mayor. The members of the Board were sworn, but not by an officer authorized to administer the oath, and the case was decided as if no oath had been taken. No such provision appears in the 1930 City Manager Act, Ky. St. § 3235dd-1 et seq., nor elsewhere in the statutes concerning the governing of cities of the second class. The oath taken by the Commissioners when they assumed office was the only oath required of them, and it covered all of their various responsibilities and duties.
Section 3235dd-33 of the Statutes is the battle ground of this proceeding. This section is section 18 of Chapter 91, Acts 1930 (sometimes referred to hereinafter as the 1930 City Manager Act), This Act provides for the City Manager form of government in cities of the second class. The section is as follows: ...
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