State ex rel. Ness v. Bd. of City Com'rs of Fargo

• Decision Date: 19 December 1932
• Docket Number: No. 6031.,6031.
• Citation: 245 N.W. 887,63 N.D. 33
• Parties: STATE ex rel. NESS v. BOARD OF CITY COM'RS OF CITY OF FARGO et al.
• Court: North Dakota Supreme Court

63 N.D. 33

245 N.W. 887

STATE ex rel.

NESS

v.BOARD OF CITY COM'RS OF CITY OF FARGO et al.

No. 6031.

Supreme Court of North Dakota.

Aug. 18, 1932.

On Rehearing Dec. 19, 1932.

On Rehearing.

Syllabus by the Court.

1. Where the action of the city commission in removing an officer has been declared null and void on certiorari in the district court, the immediate institution of another proceeding for the removal of such officer by the city commission does not deprive the city commission of the right to have the validity of the first removal determined on appeal.

2. When the statute authorizes the city commission to remove an officer for cause, requires the filing of charges and notice of hearing with power to compel the attendance of witnesses and the production of all necessary papers, but does not otherwise state what the procedure shall be, the law implies authority in the commission to do whatever is proper and necessary in the proceedings in the exercise of the power granted.

3. The action of a city commission in removing an officer may be reviewed on certiorari to determine (1) the jurisdiction of the commission over the person of the officer, (2) its jurisdiction over the subject-matter, and (3) whether there was any evidence at all in the record authorizing the commission to remove the officer.

4. A statute authorizing the removal of officers, requiring the filing of charges, the service of notice of hearing of such charges upon the officer, giving him an opportunity to be heard in his defense, the compelling of the attendance of witnesses, and the production of all necessary papers, contemplates some kind of a hearing, and, while the commission is not a court and is not governed by the strict rules of a trial in court, such proceedings are quasi judicial in character, and no essential element of a fair trial can be dispensed with.

5. Documentary evidence may be sufficient to justify the removal of an officer, but, before it is entitled to be received in evidence, the foundation for its introduction must be laid by the testimony of some witness, who is qualified to testify to the facts of identification.

6. In a proceeding to remove an officer, the members of the city commission need not be sworn to give the officer a fair and impartial trial. The law makes it the duty of the commissioners to act in such matters, and their oath of office is sufficient.

On Rehearing.

7. A city assessor in a city organized under the commission form of government cannot be removed from office without a hearing as provided in section 3808, Comp. Laws 1913.

Appeal from District Court, Cass County; M. J. Englert, Judge.

Certiorari by the State, on the relation of John G. Ness, to review proceedings of the Board of City Commissioners of the City of Fargo, and A. T. Lynner and others, Commissioners, removing the relator from the office of city assessor. From an order and judgment of the district court holding the removal proceedings to be null and void, the defendants appeal.

Judgment and order affirmed.

See also 246 N. W. 243.

BURR, J., and CHRISTIANSON, C. J., dissenting.

Matthew W. Murphy, of Fargo, for appellants.

Melvin A. Hildreth, of Fargo, for respondent.

BURKE, J.

On the 5th day of August, 1931, written charges relating to his office as city assessor of the city of Fargo, together with a notice of hearing thereon, were served upon J. G. Ness, and on August 10 thereafter, the time set for hearing before the city commission, in the city of Fargo, Ness appeared specially objecting to the jurisdiction of the commission. His objection was overruled, but he remained and took part in the proceedings, objecting, through his attorney, to all the proceedings thereafter taken. On the record made, Ness was removed from office, and, on certiorari to the district court, the removal proceedings were held to be null and void, and from the order and judgment entered in the certiorari proceedings the city appeals.

[1] The respondent has filed motion to dismiss the appeal upon the theory that the institution of another action by the city commission immediately after the dismissal of the first action is a recognition of the validity of the judgment from which the city of Fargo appeals. It appears, however, that in the interim the city appointed an assessor in the place of Mr. Ness, and has the right to have the validity of the first removal determined on appeal. The motion to dismiss is denied.

The charges served upon Mr. Ness are in writing, and were read at the beginning of the hearing. The record of the city assessor for the years 1930 and 1931, two copies of the Fargo Forum, a newspaper, containing statements purporting to have been made by Mr. Ness, the letter, Exhibit C, to the Fargo Forum purporting to have been written by Mr. Ness, and a copy of a long letter, claimed to have been written by Mr. Ness to Mr. C. M. Wade, tax supervisor, and the journal of the board of equalization of the city of Fargo for 1931, were offered and received in evidence over objection.

It is the contention of appellant that section 3791, C. L. 1913, gives the commission authority to suspend and discharge all appointive officers at will as provided in said section, namely: “The said commissioners shall by a majority vote of all the commissioners elected under this chapter have the power to appoint all officers and subordinates in all of the departments of said city, and to suspend and to discharge the same at will under the limitations hereinafter provided.”

[2][3][4][5][6][7][8] It is clear from this statute, however, that there are limitations upon this power and the limitations on the power to remove are in section 3808, C. L. 1913. This section specifically provides that: “Every person appointed to any office may be removed therefrom by a majority of votes of all the members of the board of city commissioners, but no such officer shall be removed except for cause nor unless charges are preferred against him and an opportunity given him to be heard in his defense. The board of city commissioners may compel the attendance of witnesses and the production of papers when necessary for the purpose of such hearing, and shall proceed within ten days after the charges are filed with the city auditor to hear and determine the case upon its merits.”

First, there must be some cause which authorizes the commission to act. Second, there must be charges filed which must relate to the official conduct of the officer. Third, he must be given an opportunity to be heard in his defense. These provisions necessarily require some kind of a hearing. Such proceedings are regarded as quasi judicial in character, and hence a full compliance with the rule governing trials in court is not required. 2 McQuillin on Mun. Corp. (2d Ed.) § 587, p. 359, and cases cited.

In regard to the procedure, article 273 of the Texas act (Waco City Charter) provides that “the city council shall have power to remove any officer for incompetency, corruption, misconduct or malfeasance in office, after due notice and an opportunity to be heard in his defense.” This statute specifies the acts on the part of an officer which warrants the proceedings of removal by the city council, but is less specific than our statute about the proceedings for removal, which are not specified at all. It says nothing about the procedure. Our statute, after providing for the filing of charges and notice, states the “commissioners may compel the attendance of witnesses and the production of papers when necessary for the purpose of such hearing.”

In the case of Riggins v. Richards, 97 Tex. 229, 77 S. W. 946, at page 948, the Texas court said:

“Appellant contends with much earnestness that article 273 does not, of itself, furnish authority upon which the city council could proceed to try the mayor of the city, because it provides no mode of procedure; in other words, it is claimed that the article is not self-acting. This language in article 273, ‘after due notice and an opportunity to be heard in his defense,’ is very comprehensive, and is pregnant with the idea of charges preferred, specifying the grounds upon which a removal is to be made, due notice to the accused, with the right to cross-examine the witness[es] produced against him, and to furnish testimony to exculpate himself from the charges, which would secure the constitutional right of a fair and impartial trial. These are strongly implied by the language of the act, and that which the law implies is as binding as if written in the body of the act. Suth. Stat. Const. § 334; United States v. Babbit, 1 Black, 61, 17 L. Ed. 94.

When power to perform an act is conferred by the Legislature upon a body of officers, and no procedure is specified, the law will imply authority to do whatever is proper in the execution of the power consistent with the right of the accused to a fair and impartial hearing. State v. Walbridge, 119 Mo. 383, 24 S. W. 457, 41 Am. St. Rep. 663;Armatage v. Fisher, 74 Hun, 173, 26 N. Y. S. 364;People v. Higgins, 15 Ill. 110;State v. Walker, 68 Mo. App. 117;In re Eaves [C. C.] 30 F. 21.”

Our statute, like the Texas statute, requires notice and an opportunity to be heard and the additional provision that the commission may compel the attendance of witnesses and the production of papers when necessary for the purpose of such hearing. What hearing? The hearing at which the defendant is required to be heard in his defense and for the purpose of this hearing the commission can compel the attendance of witnesses and the production of all necessary papers. It would be idle to give them any such power without the authority to use the witnesses as witnesses and the papers produced as evidence. It follows that the commission has implied authority to subpœna witnesses and papers, and, so far as the administration of the oath to witnesses is concerned, the oath could be administered by a notary public, the city clerk, or city auditor under section...