State ex rel. Childs v. Kiichli
| Decision Date | 27 April 1893 |
| Citation | 54 N.W. 1069,53 Minn. 147 |
| Parties | State ex rel. H. W. Childs, Attorney General, v. Joseph L. Kiichli |
| Court | Minnesota Supreme Court |
Argued April 20, 1893
The Attorney General presented to the Chief Justice of this court on March 24, 1893, an information, and an order was made that a writ of Quo Warranto issue, returnable before the court on April 4th, then next, requiring Joseph L. Kiichli to then and there show by what warrant he intruded into, held and exercised the office of President of the City Council of the City of Minneapolis.
The writ was issued and served and the respondent made answer that Alderman Henry W. Brazie was on January 2, 1893, elected president of the council, and acted as such until March 10 1893. On that day at a regular meeting of the council the office of President of the City Council was declared vacant and Brazie ceased to act. That respondent was then duly elected President, and has since acted by virtue of such election.
Writ quashed.
Henry W. Childs, Atty. Genl., D. F. Morgan, and W. E. Hale, for relator.
The relator contends that the Common Council of the City of Minneapolis has no power to remove its duly elected, and acting president, upon the mere volition of a majority of the members, without any charge against him of malfeasance or nonfeasance in the performance of his duties. That the President of the City Council is a public officer; that he holds for a definite term; that under the Constitution, art 13, § 2, the authority of the Legislature to provide for the removal from office of a public officer, holding for a definite term, is limited to cases of malfeasance or non-feasance in the performance of his duties; and that the Charter of Minneapolis confers no power upon the City Council to remove, without cause, an officer holding for a term fixed by law.
The President of the City Council is a public officer. People ex rel. v. Common Council, 77 N.Y. 503; Bradford v Justices, 33 Ga. 336; Clark v. Stanley, 66 N.C. 63; State ex rel. v. Anderson, 45 Ohio St. 196.
Under the Constitution, art. 13, § 2, the authority of the Legislature to provide for the removal from office of a public officer holding for a definite term, is limited to cases of malfeasance or nonfeasance in the performance of his duties. State ex rel. v. Peterson, 50 Minn. 239; Andrews v. King, 77 Me. 224; Farrell v. Bridgeport, 45 Conn. 191; Cobb v. Portland, 55 Me. 381; Lowe v. Commonwealth, 3 Met. (Ky.) 237; Brown v. Grover, 6 Bush, 1.
It is only where the Constitution is silent as to the mode and cause of removal of the officer that the Legislature has full control of the whole subject. Ex parte Wiley, 54 Ala. 226.
If an office is created and the term fixed by the Constitution, which also declares for what causes and in what mode, an incumbent of it may be removed, before the expiration of his term, neither the Legislature nor the Executive can remove or suspend, for any reason, or in any other mode, than that provided. Page v. Hardin, 8 B. Mon. 648; Commonwealth v. Gamble, 62 Pa. St. 343; State v. Draper, 50 Mo. 353; State v. Thoman, 10 Kan. 191; State v. McNeely, 24 La. An. 19.
The President of the Council is an inferior officer and within this section of the Constitution. People v. Comptroller, 20 Wend. 595; Bergen v. Powell, 94 N.Y. 591; People v. Hill, 7 Cal. 97; Smith v. Brown, 59 Cal. 672; Houseman v. Commonwealth, 100 Pa. St. 222. The Charter confers no power upon the City Council to remove its President without cause. Page v. Hardin, 8 B. Mon. 648; State v. Chatburn, 63 Iowa 659; State v. Pritchard, 36 N.J.L. , 101; People ex rel. v. Nichols, 79 N.Y. 582; State ex rel. v. Smith, 35 Neb. 13.
The doctrine that an officer may be removed at pleasure has grown up in the American courts. At common law, an officer could be removed only for cause and after a hearing. Metevier v. Therrien, 80 Mich. 187; Ex parte Ramshay, 18 Q. B. 173; Queen v. Archbishop of Canterbury, 1 El. & El. 545.
The arbitrary power of removal is not conferred upon the council by the charter, either in terms or by necessary implication. Hallgren v. Campbell, 82 Mich. 255.
Brooks & Hendrix, for respondent.
It is usual and proper to remove such officer by a motion which declares the office vacant. And it is common knowledge that when a motion concerns the presiding officer, it is properly put to the assembly by the person by whom the motion is made. If the office becomes vacant, the previous incumbent is necessarily removed. The like result is obtained by the election or appointment of a successor. People v. Carrique, 2 Hill, 93; Pepis' Case, 1 Vent. 342; Ex parte Hennen, 13 Pet. 230; Williams v. Gloucester, 148 Mass. 256; Blake v. United States, 103 U.S. 227.
The constitutional restriction upon legislative power in the use of the words "inferior officers" has no reference to the office in controversy. Among the cases cited by relator Houseman v. Commonwealth, 100 Pa. St. 222, is the only one where the question seems to have received any particular attention. In People v. Comptroller, 20 Wend. 595, the court was "inclined to think" that the commissioners were officers, but the point was unncessary to the determination of the case. And in each of the cases of Bergen v. Powell, 94 N.Y. 591; People v. Hill, 7 Cal. 97, and Smith v. Brown, 59 Cal. 672, the point was apparently taken for granted without discussion. Constitutional limitations upon the power of the Legislature in respect to officers, will be confined to those offices which are specially enumerated in the Constitution, unless the contrary expressly appears therefrom. State v. Seavey, 22 Neb. 454; Douglas County v. Timme, 32 Neb. 272; People v. Provines, 34 Cal. 520; State v. Kirk, 44 Ind. 401; Mohan v. Jackson, 52 Id. 599; Res publica v. Dallas, 3 Yeates, 300; State v. Somnier, 33 La. An. 237; Robinson v. White, 26 Ark. 139; State ex rel. v. Kalb, 50 Wis. 178.
When an office is created by statute, it is entirely within the control of the legislature. People v. Haskell, 5 Cal. 357; People v. Banvard, 27 Id. 470; Evans v. Populus, 22 La. An. 121; Farwell v. Rockland, 62 Me. 296; Prince v. Skillin, 71 Id. 361; Taft v. Adams, 3 Gray, 126; Commonwealth v. Bacon, 6 Serg. & R. 322; Barker v. Pittsburgh, 4 Barr, 49; Conner v. Mayor, etc., of New York, 2 Sandf. 355, 5 N.Y. 285; Augusta v. Sweeney, 44 Ga. 463; Robinson v. White, 26 Ark. 139; Butler v. Pennsylvania, 10 How. 402; Commissioners of Hennepin County v. Jones, 18 Minn. 199, (Gil. 182.)
It is the law almost universally recognized in this country that in the absence of restrictive provisions of law, "the power of removal is incident to the power of appointment;" and in such case, removal is permissible at the pleasure of the appointing power, and without notice or hearing. Avery v. Tyringham, 3 Mass. 160; Ex parte Hennen, 13 Pet. 230; Commonwealth v. Sutherland, 3 Serg. & R. 145; Laimbeer v. Mayor, 4 Sandf. 109; People v. Mayor of New York, 5 Barb. 43; People ex rel. v. Fire Commissioners, 73 N.Y. 437; Newsom v. Cocke, 44 Miss. 352; People v. Higgins, 15 Ill. 110; State v. Alt, 26 Mo.App. 673; Patton v. Vaughan, 39 Ark. 211; People v. Hill, 7 Cal. 97.
There are other cases in which the term prescribed was coupled with a provision whereby the appointing power could remove the officer prior to the expiration of his term. State v. McGarry, 21 Wis. 496; People ex rel. v. Whitelock, 92 N.Y. 191; Sweeney v. Stevens, 46 N.J.L. , 344; State v. Somers, 35 Neb. 322; Eckloff v. District of Columbia, 135 U.S. 240.
But the President of the City Council is an officer wholly different from the executive and administrative officers authorized to be appointed by the City Council. He is essentially a legislative officer, i. e. an officer of a legislative body, and as such by common law and parliamentary usage, as well as under the charter, is removable at the will and pleasure of that body. The City Council is a local legislative body. It resembles the Legislature of an independent state, acting under a constitution prescribing its powers." Denning v. Roome, 6 Wend. 651; Wetmore v. Story, 22 Barb. 414; Cochran v. McCleary, 22 Iowa 75.
The President of the City Council of Minneapolis has in fact but little power and few privileges. He appoints no committee, unless authorized to do so by the Council itself. He receives no emoluments or compensation for his services as such. He has no casting vote in case of a tie. He can vote once in his capacity of alderman, but has no additional vote as president. He is not ex officio a member of any board. Nor is there any statute whereby the President of the City Council is required, or authorized to authenticate any ordinance, resolution or record. If it be his duty to do this, it is because the duty is imposed by parliamentary law. And aside from the fact that in a certain contingency he may by the terms of the statute become acting Mayor, this officer has no franchise or privilege additional to that of the other members of the Council, except only the right to preside at its meetings. A mere presiding officer is but the servant of the house, to declare its will and to obey implicitly all its commands. 2 Bentham's Political Tactics, 347; Cushing's Manual, 293, 493; 5 Hume's History of England, 208; In re Speakership, 15 Col. 520.
Brazie had lost the confidence of a majority of the Council. The vote taken was notice sufficient. And there was nothing revolutionary in this proceeding. On the contrary, it was in accordance with precedent and the well recognized rules of parliamentary law. And it was essential to an efficient and orderly administration of municipal affairs. Madison v. Korbly, 32 Ind. 78.
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