State ex rel. Barnett v. City of Noblesville

• Citation: 60 N.E. 704,157 Ind. 31
• Parties: STATE ex rel. BARNETT v. CITY OF NOBLESVILLE.
• Decision Date: 28 May 1901
• Court: Supreme Court of Indiana

157 Ind. 31

60 N.E. 704

STATE ex rel.

BARNETT

v.CITY OF NOBLESVILLE.

Supreme Court of Indiana.

May 28, 1901.

Appeal from circuit court, Hamilton county; Theodore P. Davis, Special Judge.

Mandamus by the state, on the relation of Frank Barnett, against the city of Noblesville, to compel defendant to reinstate relator as city marshal. From a judgment in favor of defendant, relator appeals. Affirmed.Shirts & Fertig, for appellant. Christian, Christian & Cloe, for appellee.

DOWLING, J.

Application for a writ of mandate to compel the city of Noblesville and its common council to restore the relator to the office of marshal of said city. Alternative writ issued. Demurrers to complaint and to alternative writ sustained. Judgment for appellee. Errors are assigned upon these decisions.

The complaint alleges that the relator, Barnett, was elected and duly qualified as marshal of the city of Noblesville for the term of four years from September, 1898; that he entered upon the duties of his said office, and continued to act as such marshal until prevented by the appellee; that on June 5, 1899, the common council passed an ordinance providing for the summary impeachment of city officers before that body after notice to the accused; that said ordinance was not published in any newspaper until after the commencement of the proceedings against the relator; that on the night said ordinance was passed an affidavit was filed with said common council charging that the relator, on June 1, 1899, had appeared upon the streets of said city in such a state of intoxication as prevented him from performing the duties of his said office; that on the same night the city clerk and mayor were directed to notify the relator to appear before the common council on June 9, 1899, to answer said charge; that at the time fixed the relator appeared, and moved to dismiss the proceedings; that his motion was overruled, and the hearing took place; that neither the mayor nor any member of the common council was sworn to try said cause; that at the conclusion of the investigation the relator again moved to dismiss the proceedings, but without avail; that on June 10, 1899, the common council decided that the charges were sustained, and the mayor thereupon declared the relator expelled and removed from his office of marshal; and that these proceedings were afterwards approved by the common council at its regular session held June 12, 1899. The complaint further shows that at said session the police board was authorized to choose a successor for the relator in said office; that the relator denies the validity of said proceedings, and has refused to surrender his said office, but that he is wrongfully deprived of the same by the appellee by virtue of the proceedings aforesaid. Prayer for a writ of mandate to restore the relator to his office as marshal.

The general act for the incorporation of cities expressly authorized the common council to expel or remove any city officer by a two-thirds vote of the whole number of councilmen elected, and required the common council to make provision in their by-laws or ordinances for the mode of presenting charges and the hearing of the same. Acts 1867, p. 75, § 88 (Rev. St. 1881, § 3101; Burns' Rev. St. 1894, § 3536). In 1875 the legislature enacted a statute declaring that any person holding any office under the constitution or laws of this state, who should voluntarily become intoxicated within the business hours of his office, or should be in the habit of being intoxicated by the use of intoxicating liquors, should forfeit his office, and be removed therefrom, upon the complaint of any citizen filed in the circuit court of the county in which such officer resided. The act prescribes the form of procedure and the character of the judgment to be rendered. Acts 1875, p. 91 (Rev. St. 1881, § 6012; Burns' Rev. St. 1894, § 8088). By another act, which took effect March 8, 1897, provision was made for the impeachment and removal of any district, county, township, or municipal officer, justice of the peace, or prosecuting attorney, upon accusation in writing by the grand jury. Acts 1897, p. 280, §§ 2133. The common council of the city of Noblesville proceeded under the provisions of section 88 of the act of 1867, supra, and the appellant insists that this section was repealed by the acts of 1875 and 1897, supra, and that the action of the common council was, therefore, unauthorized and void. The question of the power of the common council to remove the relator is properly presented by his application for a writ of mandamus. Burns' Rev. St. 1894, § 1182 (Rev. St. 1881, § 1168); City of Madison v. Korbly, 32 Ind. 74;Swindell v. State, 143 Ind. 153, 42 N. E. 528, 35 L. R. A. 50. It is said that one of the common-law incidents of all corporations is the power to remove a corporate officer from his office for just and reasonable cause. Rex v. Richardson, 1 Burrows, 517; 2 Kyd, Corp. 62; Beach, Pub. Corp. 191. In the case at bar it is claimed that section 88 of the act of 1867, supra, was repealed by implication. Therefore it is incumbent on the...