Wilson v. Council of Highland Park ( 1938 )

Plaintiff, a member of the council of the city of Highland Park, was removed from office because he was a member of the so-called Black Legion, a secret society of political character, the council finding he was a member and that his participation in the affairs of the Black Legion was highly reprehensible in a member of the common council of the city of Highland Park and rendered him incompetent to perform the duties of his office and constituted corrupt and wilful malfeasance in office and wilful misconduct to the injury of the public service. Plaintiff was removed by a vote of three to one. Thereupon, he reviewed the removal proceedings in the circuit court by certiorari where the action of the council was affirmed, and plaintiff appeals.

No fault is found with any official action of the plaintiff. It appears, so far as this record shows, his official conduct was exemplary.

Conceding the provisions of the charter of the city of Highland Park for the removal of officers are warranted by the home rule enabling act (1 Comp. Laws 1929, § 2228 et seq. [Stat. Ann. § 5.2071 et seq.]), the question is whether, conceding what was charged against plaintiff was true, it warranted the action of the council complained of. It is well settled the misconduct, misfeasance or malfeasance under our law, to warrant plaintiff's removal from office, must have direct relation to and be connected with the performance of official duties and amount either to maladministration or to wilful and intentional neglect and failure to discharge the duties of the office at all. It does not include acts and conduct which, though amounting to a violation of the criminal laws of the State, have no connection with the discharge of official duties. The misconduct which will warrant the removal of an officer must be such as affects his performance of his duties as an officer and not such only as affects his character as a private individual. In such cases, it is necessary to separate the character of the man from the character of the office. The misconduct charged and established must be something which plaintiff did, or did not do, in his official capacity. State, ex rel. Martin, v.Burnquist, 141 Minn. 308 (170 N.W. 201, 609); Mechem, Public Offices Officers, §§ 457, 458; Holliday v. Fields, 210 Ky. 179 (275 S.W. 642); Throop, Public Officers, § 367;Commonwealth v. Chambers, 1 J.J. Marsh (24 Ky.), 108;Speed v. Detroit Common Council, 98 Mich. 360 (22 L.R.A. 842, 39 Am. St. Rep. 555).

No misconduct in office, no official misconduct, is shown or claimed. The defendant council was in error in removing plaintiff. As this disposes of the case, it is unnecessary to discuss other questions raised.

Judgment reversed and proceedings quashed, but without costs, a public question being involved.

WIEST, C.J., and SHARPE, CHANDLER, and NORTH, JJ., concurred with POTTER, J.