State ex rel. McMahon v. City of New Orleans

Decision Date14 April 1902
Docket Number14,263
Citation32 So. 22,107 La. 632
CourtLouisiana Supreme Court
PartiesSTATE OF LOUISIANA EX REL. P. J. MCMAHON v. THE CITY OF NEW ORLEANS

January 1901

APPEAL from the Civil District Court, Parish of Orleans. -- Theard, J.

Robert J. Maloney, Hugh M. Ansley and Lazarus & Luce, for Plaintiff Appellant.

Samuel L. Gilmore, City Attorney, and Arthur McGuirk, Assistant City Attorney, for Defendant, Appellee.

MONROE J. BLANCHARD, J., took no part, being absent.

OPINION

MONROE J.

STATEMENT OF THE CASE.

Relator, having been elected a member of the city council of New Orleans, was expelled from that body, and he prays to be restored to membership by means of a writ of mandamus. The council and its members, for cause why the alternative writ should not be made peremptory, show, that, by section 12 of the city charter, the council is authorized to "expel any of its members by a two-thirds vote of all members elected to such council, five days notice and an opportunity of being heard in his defense having previously been given to such member," that the notice thus required was given to relator, as also the opportunity of being heard, but that, even had such notice not been given, it would, by relator's appearing, pleading, testifying, and cross-examining witnesses, have been waived. And they allege that the "discretionary right to determine what causes are sufficient to justify expulsion is not subject to judicial review." Wherefore they pray that the application of relator be denied. The evidence and admissions in the record establish the following facts, to-wit: Relator was elected to the council as the representative of one of the most populous wards in the city and was in the active discharge of his duty up to the moment of his expulsion. Early in October, 1901, he stated to the mayor that he had received information tending to show dishonest practices on the part of certain members of the council, and he requested that officer to consider the statement as confidential for a few days, when, as he said, he would produce his informants; and the mayor acceded to his request. Very shortly afterwards, without any fault on the part of the mayor, a publication on the subject appeared in one of the daily papers. Whether relator was in any wise responsible for this publication is a question which we are not called upon to determine, though we do not wish to be understood as conveying any intimation to his prejudice. However it happened, some version of the matter became public, and the mayor promptly arranged an interview, in his presence, between the relator and a gentleman whose name had been mentioned as one of the latter's informants, with a view of determining what further action he should take; and, finding that the statements of the parties conflicted, he referred the whole matter to the council. The council, thereupon, appointed a special committee to wait upon the relator and request him "to furnish all information in his possession in connection with any accusations" against its members, and the committee so appointed called upon the relator, and, upon October 22nd, reported to the council, then in session, as follows:

"Committee called on the councilman, October 21st, and he declared:

"1. That he had never made accusations against any member of the city council.

"2. That all information in his possession were only rumors he had heard, which he was not able to substantiate, as to any wrong action of any member of the council.

"3. That the parties on whom he relied to substantiate these rumors had utterly failed to do so.

"4. That if he could have substantiated these rumors, he would have, at once, laid the matter before the grand jury.

"5. That he sincerely regretted to have given circulation to these rumors.

"6. That as a citizen of the community in which he had lived so long and in the welfare of which he was so notably interested, and as a member of this community he regretted very much the publicity given to rumors which at first he was led to believe had some foundation, but which consequently (subsequently) he found out to be vague and could not be substantiated in any form whatever." Relator, being present, stated that he approved the report as made, and it was received and its further consideration postponed until the next meeting of the council. Upon October 29th, the council, having again assembled, the report of the special committee was read and the following motion was offered by the chairman:

"Be it moved by the city council of New Orleans that this council, taking cognizance of the report of the special committee appointed to wait on councilman P. J. McMahon, and to request him to furnish all information in his possession in connection with any accusation against members of this body, and also of the councilman's affirmation at the session of October 22nd, 1901, of the correctness of said report, accepts the expressions of his regret for the statements made or repeated. Be it further moved that this council desires to record its disapprobation of a member of this council giving circulation to derogatory and unsubstantiated rumors, which acquire weight before the public when coming from a member, and which are incompatible with the dignity and responsibility of a public official. Be it further moved, etc., that this council, now having put on record the apology of councilman P. J. McMahon and disapproval of his conduct and its disapprobation of the circulation of unsubstantiated rumors, especially by a member of this body, considers the incident closed."

To this the relator objected, saying: "Mr. Chairman, before adopting that motion, I certainly will not accept section five of the report. I did not understand it when it was being stated by Mr. Zacharie, and I certainly will not stand by that. I did not circulate that. * * * On my sacred word, I had no idea that section five had any such wording. I have no objection to the balance of the report, but, to section five, I have, decidedly. * * * I would be the last man, if I thought that I had done anything wrong, to refuse to apologize, but, in my estimation, I have done nothing wrong, and I don't think I can apologize at this time. I simply went to the mayor and told him these things, in a confidential way, and if they got out, am I to be blamed?" The position of the relator, then, was, that he had not circulated the objectionable rumors and could not place himself in the position of apologizing for something that he had not done. Evidently, however, it was thought that his statement to the mayor was, in itself, a "circulation." Thus; the chair asked, "Wasn't that a circulation Mr. McMahon?'" Mr. McMahon. "No, sir. Not in my estimation. At this moment I don't think that I have done anything wrong." A member of the council. "It strikes me that whatever private conversation has taken place between councilman McMahon and the Honorable Mayor, the whole thing recoils squarely against the dignity of this body, and nobody else, and there is no use to try to get around it. There it is at our very door, right at the door of this body, and you cannot take it off unless it is purged some way or another. Unhappily for the gentleman, if he continues in the line he has adopted, although we have shown him all sympathy in the matter, if he proposes to continue as he has started to-night, of course he is like every man, he must take the consequences." By another member: "Now I move that, in view of the odium cast upon this council, it matters not by whom, but the circulation of these rumors has cast a stigma upon us that never will be wiped out during the life of this administration. I, for one, don't care to use any drastic measures, but the council must be vindicated, or the charges made must be substantiated. And now, in order to give to the gentleman an opportunity of saying to this body whether he is right or wrong, I move that the chair request the gentleman to tender the necessary apology, and one fitting to the cause of all this scandal." The Chair: "Mr. McMahon, are you prepared to make an apology at all?" McMahon: "No, sir, I am not prepared. I can't make any apology." The Chair: "None at all?" McMahon: "I haven't done anything wrong that I know of." The Chair: "The remarks you have circulated?" McMahon: "I never circulated them." Another member: "I make this substitute: that the gentleman be called upon at the next meeting to substantiate the charges made, or to apologize, or to accept this as a legal notice, under the charter, that a motion will be made for his expulsion."

This suggestion was reduced to the form of a motion as follows: "Be it moved that, in view of the statement made on the floor of this council at this meeting by councilman McMahon, that he does not consider that he has committed any offense against the dignity of this council, or any member thereof, that should cause him to apologize, that this council demands that Councilman McMahon shall substantiate the charges made by him, or apologize before this body at its next meeting, and in default thereof to take this as a notice, under the city charter, to answer why he should not be expelled from this body."

This motion was then adopted and the council adjourned until November 5th. Upon that day, however, relator presented a petition to the civil district court setting forth what had taken place and praying that the council be enjoined from proceeding further in the matter of said motion, and, as a rule nisi was issued ordering the council to show cause on November 8th why the injunction should not issue, no further action was taken until the evening of November 8th when the rule nisi having been discharged, and an application to this court for prohibition, mandamus an...

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