Speed v. Common Council of City of Detroit
| Decision Date | 05 January 1894 |
| Court | Michigan Supreme Court |
| Parties | SPEED v. COMMON COUNCIL OF CITY OF DETROIT et al. |
Petition by John J. Speed for a writ to prohibit the common council of the city of Detroit from proceeding with the investigation of charges preferred against petitioner for the purpose of having him removed from his office of city counselor of the city of Detroit. Petition granted. Respondents move to vacate. Motion denied.
Edwin F. Conely, (Jasper C. Gates and Charles Flowers, of counsel,) for the motion. Hoyt Post, (John D Conely, of counsel,) opposed.
The relator, Speed, was duly appointed city counselor and head of the department of law in the city of Detroit, July 16, 1893 and entered upon the duties of the office. This appointment was made under Act No. 419 of the Local Acts of 1893 entitled "An act supplementary to the charter of the city of Detroit, and to provide for a law department of said city." Under the decision in Speed v. Common Council of City of Detroit, 56 N.W. 570, (rendered Oct. 27, 1893,) Mr. Speed's appointment was declared valid, and the council directed to approve his bond. Thereafter the mayor of the city lodged charges with the common council against Mr. Speed, for which he asked said council to remove him. The council appointed a committee to investigate these charges, whereupon the relator filed this petition, asking for the writ of prohibition against the procedure of the council. The writ was granted, subject, however, to a motion to vacate it on cause shown. The respondents made answer to the petition, and moved to vacate the order. The principal question in the case is the power of the council to remove the city counselor for cause, but two preliminary matters will be first determined.
1. It is suggested, rather than seriously insisted, by the learned counsel for the respondents, that the writ of prohibition does not lie in the present case, for the reason that the common council was proceeding in a political or administrative way, rather than in any other. They cite Mechem, Pub. Off. 1019, 1020; High, Extr. Rem. 783, 769; Burch v. Hardwicke, 23 Grat. 51; People v. District Court, 6 Colo. 534; Smith v. Whitney, 116 U.S. 167, 6 S.Ct. 570. The rule laid down by these learned authors is that the writ lies only to prevent the unauthorized exercise by courts and officers of judicial powers, and does not lie to restrain executive or ministerial action; and the above authorities, together with others, are cited in support of the proposition. In People v. District Court, the power to remove for certain causes was expressly conferred upon the city council of Leadville. No doubt, therefore, existed of the jurisdiction of the council in the matter. In Burch v. Hardwicke, the power was also expressly conferred by the charter upon the mayor to suspend or remove officers for misconduct in office or neglect of duty. In Smith v. Whitney the writ was invoked to prohibit the secretary of the navy, and a general court martial of naval officers, to try the relator upon charges which had been preferred against him. In all these cases the respondents were proceeding under the express authority of law, and they are therefore clearly inapplicable to the present case. The writ lies "to prohibit the exercise by an inferior tribunal or officer of judicial powers with which he is not legally vested," and "to prevent actions in excess of the jurisdiction conferred by law, and not to regulate or control the manner in which a lawful jurisdiction shall be exercised." Mechem, Pub. Off. 1013, 1014. Under the constitution, the legislature may provide for the removal of municipal officers. It certainly has never been regarded in this state that the officer or body upon whom this power is conferred acts in a purely political, administrative, or legislative capacity. Such officer or body acts, and must of necessity act, in a quasi judicial capacity, and the method of procedure must be of quasi judicial character. Stockwell v. Township Board, 22 Mich. 341; Dullam v. Wilson, 53 Mich. 392, 19 N.W. 112; People v. Stuart, 74 Mich. 411, 41 N.W. 1091; Fuller v. Ellis, (Mich.) 57 N.W. 33. Such officer or body then becomes an inferior tribunal, amenable to the writ of prohibition, when acting in excess of the jurisdiction conferred. In such cases it is of little consequence what name is given to the power conferred. The name cannot relieve it of its essential character. It would be a reproach to the law if it did not provide a speedy remedy by which such tribunals can be prohibited from the exercise of an excess of authority, or of an authority which they do not possess. We are of the opinion that the writ lies in the present case. State v. Common Council of City of Duluth, (Minn.) 55 N.W. 118; People v. Cooper, 57 How. Pr. 416; 1 Dill. Mun. Corp. 253.
2. While it appeared, upon the agument, to be conceded that the sufficiency of the charges is not here in issue, still we deem it proper to say that the charges preferred, so far as they relate to the acts of Mr. Speed committed before his appointment to, and induction into, this office, are clearly beyond the jurisdiction of the respondents to determine. There is no provision in the constitution nor in the laws which prevents a person from holding office for misconduct in another office which he held prior to the one to which he was elected or appointed. We have been unable to find any authority which justifies a removal for such previous misconduct. The misconduct for which any officer may be removed must be found in his acts and conduct in the office from which his removal is sought, and must constitute a legal cause for his removal, and affect the proper administration of the office. There is no restriction upon the power of the people to elect, or the appointing power to appoint, any citizen to office, notwithstanding his previous character, habits, or official misconduct. State v. Jersey City, 25 N. J. Law, 536; Com. v. Shaver, 3 Watts & S. 338. In Com. v. Shaver it was held that the trial, conviction, and sentence of a sheriff for the offense of bribing a voter previously to his election to the office did not disqualify him. In State v. Jersey City it was held that the expulsion of an alderman for receiving bribes did not disqualify him for election to the same office. See, also, State v. Common Council of City of Duluth, supra; Crawford v. Township Boards, 24 Mich. 248; Richards v. Clarksburg, 30 W.Va. 502, 4 S.E. 774; 1 Dill. Mun. Corp. � 252, and note; State v. Jersey City, 25 N. J. Law, 536. This may be a proper subject for legislative consideration, but, until the legislature shall choose to disqualify persons from holding office for such reasons, they can constitute no cause for removal.
3. It was settled in the case of Speed v. Common Council of City of Detroit, supra, that the mayor could not revoke the appointment when once made, and that neither he nor the common council possessed the power to remove at will. That case was ably argued, and received the most careful examination by this court. We see no occasion to change our views, or to question the soundness of the conclusions then reached. Counsel for respondents, in their brief upon the application for a rehearing, concede that "there is no provision whatever for the removal of an appointive officer upon charges, nor for the trial of such charges;" but they contend (1) that the power of removal is necessarily implied from the language used in the Acts of 1893; and (2) that the power of removal for cause is implied from the charter and from the nature of the municipal organization. The only reference to removal from office in the act of 1893 is found in section 8, which reads as follows: "Upon the expiration of the term of office of the city counselor and the city attorney, or their resignation thereof or removal therefrom, such officer shall forthwith, on demand, deliver to his successor in office all deeds, leases, contracts and other papers and books in his hands belonging to the corporation, or delivered to him by the corporation or any of its officers, and all papers in actions prosecuted or defended by him, or which are pending and undetermined." From this language it is argued that the power of removal for cause is necessarily implied, and the case of State v. Somers, (Neb.) 53 N.W. 146, is cited in support of the proposition. The provision of the statute of Nebraska then before the court for construction reads as follows: "Said commissioner of health shall be appointed by the mayor, subject to the approval of a majority of the council, and shall hold office for a term of two years from the date of appointment, unless sooner removed or retired." This statute was amended so as to read as follows: "All officers appointed by the mayor and confirmed by the council shall hold the office to which they may be appointed until the end of the mayor's term of office and until their successors are appointed and qualified, unless sooner removed or the ordinance creating the office shall be repealed, except as otherwise provided in section 104." Construing these provisions together, it was held that the right of removal was impliedly retained in the hands of the mayor, not in the council. The difference between the two statutes is apparent. In that case the appointment was until the end of the mayor's term, unless sooner removed, while, in the present case, section 2 of the act conferring the power of appointment is as follows: "He (the city counselor and the head of the legal department of the city) shall be appointed by the mayor on or before the third Tuesday in June for the term of three years from the 1st day of July next succeeding his appointment." In State v. Somers, the clause in regard...
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