State ex rel. Starkweather v. Common Council of City of Superior

• Decision Date: 26 September 1895
• Citation: 90 Wis. 612,64 N.W. 304
• Parties: STATE EX REL. STARKWEATHER v. COMMON COUNCIL OF CITY OF SUPERIOR.
• Court: Wisconsin Supreme Court

90 Wis. 612

64 N.W. 304

STATE EX REL. STARKWEATHER

v.COMMON COUNCIL OF CITY OF SUPERIOR.

Supreme Court of Wisconsin.

Sept. 26, 1895.

Certiorari by the state of Wisconsin, on the relation of Charles S. Starkweather, to the common council of the city of Superior, to review the proceedings of that body removing relator from the office of mayor. Order of removal affirmed.

At the April election, 1895, Charles S. Starkweather, the relator, was elected mayor of the city of Superior, and thereafter duly qualified and entered upon the duties of his office. On the 2d day of July, 1895, Angus McQueen, one of the aldermen of said city, filed with the common council charges of official misconduct against the relator. It is only necessary to set forth one of the charges so made, being charge No. 6, upon which the relator was afterwards found guilty, and removed from office by the council. The said charge is as follows: “I hereby charge that the said Charles S. Starkweather did, on and between the 1st day of May and the 6th day of June, 1895, willfully extort in his office as mayor of the city of Superior and as chief of police and head of the fire department of the city various sums of money from various policemen and firemen in the said city, contrary to section 4550 of the Revised Statutes of the state of Wisconsin.” Upon the filing of said charges the council adopted a resolution designating the 5th day of July as a day of hearing. On that date the relator, by his counsel, filed a motion that the proceedings be dismissed, on the ground that the council had no jurisdiction or authority to try him upon the charges. This motion was overruled by a vote of ten to eight. At this meeting, and also at the meeting held July 6th, the relator occupied the chair as presiding officer of the council. At the close of the meeting of July 6th an adjournment was taken to the 8th day of July for the special business of considering the charges against the mayor. On the evening of the 8th day of July the mayor took the chair on the opening of the meeting, and directed the city clerk to call the roll, whereupon Alderman Atkinson moved that the president of the council take the chair and call the council to order. This motion was declared out of order by the mayor, and it appears that thereupon the mayor again ordered the city clerk to call the roll, and Alderman Atkinson put his motion to the house, and nine aldermen voted “aye,” two “no,” and the balance refused to vote on the question. At this time there was evidently great confusion in the council meeting, and, according to the claim of counsel for the relator, a motion was made and seconded that the council adjourn to Thursday evening following, on which eight aldermen voted in the affirmative and none in the negative, and the mayor declared the meeting adjourned. According to the return made to the writ, however, it appears that after Alderman Atkinson's motion was declared carried, Mr. Howe, president of the council, requested Alderman Green to take the chair, which he did, and requested the city clerk to call the roll, and, upon his refusal, proceeded to call the roll himself, which showed ten members present. At this juncture the mayor, city clerk, and a portion of the aldermen left the council chamber, and ten aldermen remained, who proceeded to do business. Upon motion, which was carried by vote of ten “ayes” and no “noes,” the relator was required to answer the charges preferred against him. The relator not being present, the plea of not guilty was, on motion, entered in his behalf. It was then moved and carried that the council proceed to take testimony upon the charges, and for that purpose the council resolved itself into a committee of the whole. Alderman Green was elected chairman of the committee of the whole, and Alderman Atkinson secretary. The committee of the whole then proceeded to take a large amount of testimony on the various charges, and adjourned from day to day, as the occasion required. The committee met on the evenings of July 8th, 9th, 10th, and 11th, but at none of these times did the mayor, nor his attorneys, nor the city clerk, nor five of the aldermen, attend, until the meeting on the evening of July 11th, at which time all the last-named persons attended, that being the evening which the mayor and his friends claimed the council had adjourned to. The committee of the whole refused to recognize the adjournment, and proceeded with the taking of testimony. Thereafter, also, the mayor and his counsel and the five aldermen participated in the proceedings. July 12th, mayor's counsel filed a motion to dismiss, because the committee was illegally organized, had never been appointed, and because the council had not convened July 11th, and because Aldermen Howe and McQueen were incompetent to sit. This motion was overruled. The committee continued to take testimony from day to day until July 15th, when it arose, and reported progress to the council, and secured permission to sit again, and thereafter continued to take testimony until July 29th, when it arose, and reported the testimony to the council. On July 25th, after the testimony for the prosecution was in, the relator moved that the charges be dismissed, because the council had no jurisdiction, and was illegally composed, and because there had been a failure of proof to sustain the charges. This motion was overruled. At meetings of the council held on July 29th, 30th, 31st, and August 1st, the testimony taken by the committee of the whole was read in council, and at the meeting of August 1st, after argument by council, a resolution was adopted, by a vote of seventeen to one, by the common council, declaring that charge No. 6 had been proven, and removing the mayor from his office. At the regular meeting of the common council held August 6th the relator was present and attempted to preside at the council meeting, but Alderman Howe, president of the council, demanded the chair, and was sustained by the common council, whereupon the relator vacated the chair. Thereupon the relator filed an affidavit in this court for a writ of certiorari.S. N. Dickenson and Heber McHugh, for relator.

W. C. Owen and George C. Cooper, for respondent.

WINSLOW, J. (after stating the facts).

The relator's material objections will be taken up in their order, as made.

1. It is said that the charter of the city confers no authority on the council to remove the mayor from office. Section 21 of the charter (chapter 124, Laws 1891) provides as follows: “Every officer elected or appointed to any office, except watchmen, policemen and firemen, may be removed from such office by a vote of three fourths of all the members of the common council; but no such officer, except watchmen, policemen and firemen, shall be removed without cause, nor unless charges are preferred against him and an opportunity given him to be heard in his own defense. The common council shall have power to compel the attendance of witnesses and the production of papers when necessary for the purpose of such trial, and shall proceed within ten days to hear and determine the case upon the merits thereof. The mayor may suspend any officer against whom charges have been preferred, until the disposition of the same.” The mayor is an officer of the city, elected by the people, by...