State ex rel. Fischer v. City of Lincoln

• Decision Date: 10 November 1939
• Docket Number: 30582.
• Citation: 288 N.W. 499,137 Neb. 97
• Parties: STATE EX REL. FISCHER v. CITY OF LINCOLN ET AL.
• Court: Nebraska Supreme Court

288 N.W. 499

137 Neb. 97

STATE EX REL. FISCHER v. CITY OF LINCOLN ET AL.

No. 30582.

Supreme Court of Nebraska.

November 10, 1939

Syllabus by the Court.

1. Where the appointing power is given unconditional authority to remove a public officer or employee at any time in its discretion, it may do so without a hearing.

2. Even where the power of removal is not expressly conferred, the general rule is that a grant of the power to appoint is construed to carry with it, by necessary implication, a grant also of the unconditional power to remove, if the term of office is not fixed by law and the right to remove is not in any other manner restricted.

3. The purpose of the home rule charter provisions of our Constitution (art. XI, secs. 2-5) was to render cities as nearly independent as possible of state legislation.

4. The constitutional limitation that a home rule charter must be consistent with and subject to the laws of the state means simply that, on matters of such general concern to the people of the state as to involve a public need or policy, the charter must yield to state legislation.

5. The legislature cannot, however, even by a general law, affect the powers of a city under its home rule charter over matters which are purely of local concern, or which only indirectly or remotely affect the people of the state outside the particular municipality.

6. The right of a city to provide for a particular form of government in a home rule charter is in no way dependent upon whether the legislature by statutory enactment has authorized such a form, nor is it subject to the statutory conditions and limitations upon which the legislature may have authorized a city to adopt it.

7. The city council of Lincoln, under the provisions of its home rule charter, had the right to discharge one of its firemen without a hearing before the council.

Appeal from District Court, Lancaster County; Broady, Judge.

Mandamus proceeding by the State of Nebraska, on the relation of Phillip Fischer, against the City of Lincoln and others to compel the reinstatement of the relator as a fireman, on ground that he had been discharged without a hearing. From a judgment in favor of the defendants, the relator appeals.

Judgment affirmed.

Frank A. Dutton, of Lincoln, for appellant.

Ralph P. Wilson, Clarence G. Miles, and Frederick H. Wagener, all of Lincoln, for appellees.

Heard before EBERLY, PAINE, CARTER, and JOHNSEN JJ., and KROGER, District Judge.

JOHNSEN, Justice.

This is a proceeding in mandamus, to compel the city council of Lincoln and the chief of its fire department to reinstate relator (who will be referred to herein as plaintiff) as a fireman, on the ground that he had been discharged without a hearing. The trial court sustained a general demurrer to the petition, and, on plaintiff's election not to plead further, it dismissed the action. Plaintiff has appealed.

Plaintiff had been summarily removed from his position by the fire chief, and the city council ratified the discharge by refusing to give him a hearing. His contention is that he could not legally be removed except on formal charges notice, and a hearing before the council.

The question accordingly is whether such charges and a hearing were required under the provisions either of the city charter or of the statutes of the state.

Lincoln is a city of the first class, with more than 40,000 and less than 100,000 inhabitants, having a commission form of government, and operating under a home rule charter. Its charter provides: " The city council * * * shall elect * * * as many officers, assistants and employees as may, in its judgment, be essential and necessary to conduct the government of the city. * * * Any such officers or any assistant or any employee appointed by the city council may be removed by the city council at any time. The city council shall have power, in its discretion, to discharge any officer or employee appointed or elected by it or to discontinue any employment or abolish any office at any time."

The charter thus expressly grants to the city council the general power both to appoint and to remove all subordinate officers and employees, at any time, in its discretion.

" A grant of general power to remove an officer from office ordinarily carries with it the right to remove him at any time without notice or hearing." 99 A.L.R. 391, annotation.

" If the power to remove is given, expressly or by necessary implication, by words or terms denoting that it may be exercised in discretion, such power, to the extent thus given, is, ex hypothesi, one which may be exercised whenever in the mind and judgment of the donee of the power the fact or thing exists upon which his discretion is rested." 2 McQuillin, Municipal Corporations, 2d Ed. § 574.

Indeed, even where the power of removal is not expressly conferred, the general rule is that a grant of the power to appoint is construed to carry with it, by necessary implication, a grant also of the unconditional power to remove, if the term of office is not fixed by law and the right to remove is not in any other manner restricted. 2 McQuillin, op. cit., § 582; 19 R.C.L. 931, § 232; Id. 935, § 235; 99 A.L.R. 336, annotation; State ex rel. Early v. Wunderlich, 144 Minn. 368, 175 N.W. 677; Lyon v. Civil Service Commission, 203 Iowa 1203, 212 N.W. 579; State v. Archibald, 5 N.D. 359, 66 N.W. 234.

In State ex rel. Attorney General v. Smith, 35 Neb. 13, 52 N.W. 700, 16 L.R.A. 791, we specifically held: " Where by law there is no fixed term of office, and the incumbent holds during the pleasure of the appointing power, the power of removal is discretionary, and may be exercised without notice or hearing."

From these authorities, it is clear that, in so far as the provisions of the charter are concerned, plaintiff has no ground for complaint because he was denied a hearing before the city council. The charter gives the council the power to discharge any appointee, at any time, without charges or a hearing, if it chooses to do so.

Plaintiff argues, however, that, apart from the charter, the ordinances of the city and the regulations of the fire department contemplate and entitle him to such a hearing. The petition sets out some ordinances which provide, in substance, that the chief may make such rules and regulations for the fire department as he deems advisable, with the consent of the council; that he shall keep a record of all complaints against members and his judgment thereon; and that he may suspend from duty any member against whom a complaint has been made, until he has had an opportunity to examine the charges. Certain regulations of the fire department are also pleaded, which provide that preferred charges against a member must be made in writing and forwarded through the company officer to the chief; that officers shall report promptly to the chief, by well-sustained charges, any transgression of laws, ordinances, rules or orders; and that both company officers must sign any charges brought against a member.

These ordinances and regulations obviously are intended to provide a means of bringing grievances and complaints to the attention of the chief in an orderly and routine fashion; to require him to examine any charges made, for purposes of departmental discipline; and to enter a notation of his judgment or conclusion, presumably as a matter of service record exoneration or demerit. It may be supposed that, in getting at the facts of any situation, a fair-minded investigation will ordinarily include a discussion of the complaint with the person involved, even though there be no prescription for a formal hearing. But the legal concern in this case is not whether plaintiff was afforded such an opportunity for discussion with the chief; the controlling question is whether he could legally be discharged without a hearing before the city council. The ordinances and...