State ex rel. McMahon v. City of New Orleans
Decision Date | 14 April 1902 |
Docket Number | 14,263 |
Citation | 32 So. 22,107 La. 632 |
Court | Louisiana Supreme Court |
Parties | STATE 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.
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:
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:
To this the relator objected, saying: 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. A member of the council. By another member: The Chair: "Mr. McMahon, are you prepared to make an apology at all?" McMahon: 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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