Mayor of Mobile v. Squires , 49 Ala. 339 ( 1873 )

BRICKELL, J.

— We are fully satisfied that, under the 22d section of the charter of the city of Mobile, the mayor, aldermen, and common council had the unqualified power of removing or displacing the appellee from the office of city engineer. By the express terms of that section, his right to salary or compensation ceased on such removal or displacement. The court below thought the power of removal conferred by this section must be confined to such officers and agents as the mayor, aldermen, and common council should appoint, under the general grant of power to appoint conferred by the section, and could not be extended to such officers as were expressly created by the charter. In this view we cannot concur. A careful examination of the charter shows that special provision is made for the appointment of nearly every officer or agent who probably would be necessary to enable the corporation to exercise its powers and discharge its duties. The view of the Circuit Court would leave a very narrow, if any, field for the operation of the power of removal, so emphatically conferred by section 22. We think the purpose of the legislature was to vest in the mayor, aldermen, and common council, in joint convention assembled, a power of removal. coextensive with their power of appointment to office, unless the power is abridged, or otherwise confided, by special provisions of the charter. We find in the section creating the office of city engineer, that provision is ■ made to fill a vacancy, occuring in consequence of a removal, and a similar provision in reference to the tax-assessor. The only express power of removal is that conferred by section 22. We must conclude that the legislature had reference to a removal occurring in the exercise of this power, or to an amotion, under the rules, not very clearly defined, of the common law. We believe we subserve the legislative intent in declaring that the mayor, aldermen, and common council, had the unqualified power of removing or displacing the appellee from the office of city engineer ; and that, on such removal, his right to compensation ceased. This is fatal to his right of recovery; and without considering any other question presented by the record, the judgment of the court below is reversed, at the costs of the appellee in this court and the court below; the cause will be remanded if desired by the appellee; and in that event the costs of the court below must abide the result in that court.