Diffie v. Cowan , 56 S.W.2d 1097 ( 1932 )

The pointed question for consideration is that of whether or not the power resides in the city council of the city of Texarkana, a city strictly under special charter or legislative authority, to try and remove an alderman from office upon the several charges. The settled precedents have determined that if a city council, as a special court or as a unit of the city corporation, may exercise the power to remove a municipal officer who is duly elected for a definite tenure of office, as is an alderman, such power must have been provided by statute or by the terms of the particular city charter. Proceedings based upon the assumption of such power would be illegal and void. Under rules long adhered to grant of power, as herein involved, of removal from office is to be strictly construed, and whatever is not given in unequivocal terms is understood to be withheld. 43 C.J. § 192, p. 195. If the authority does not clearly appear in the provisions of the law or of the particular city charter, then no such authority nor grant of power can be implied or held to exist. 43 C.J. § 186, p. 188.

The statute of the state expressly provides: "Art. 5991. The mayor and aldermen of any incorporated town or city may be removed from office for official misconduct," etc. Article 5992, that, whenever "any alderman" is charged by sworn complaint with any act which may be "cause for his removal," then "The mayor and aldermen of such town or city, except the aldermen against whom complaint is made, shall constitute a court to try and determine the case." Article 5993, that, whenever such complaint is made against "the mayor," then "A majority of the aldermen shall constitute a court to try and determine the complaint against the mayor, and they shall select one of their number to preside during such trial." Article 5995, that "The provisions of this title * * * shall not apply to any town or city except such as are incorporated under the general laws of this State." The charter of the city of Texarkana (Sp. Acts 1907, c. 104), which is not a city incorporated under the general laws of this state, expressly provides: "Sec. 58. Any officer of said city may be tried by the city council which is hereby granted power for such purposes, and removed from office for malfeasance," etc. Section 59, that, "Before any officer created by this charter shall be removed from office, written charges shall be first preferred against him, stating in a substantial manner the charges against him." Section 64, that, whenever charges are preferred against "the mayor," then the "aldermen shall be and constitute a court to try and determine the said charges against the mayor," etc.

Considering the phraseology of the state law, and the city charter provisions, and the line of differences, which is permissible under the rules of construction of grants of power and of use of words employed in the grant, it is not clear and certain that power was conferred, or intended to be conferred, upon the city council as a special tribunal, or as a unit of the city corporation, of trial and removal from office of an alderman. The city charter does not contain any section or provision which in anywise specifically mentions by name an "alderman," as it does "the mayor," as one subject to trial and removal from office by the "city council." Seemingly, either by intention, or in the case of omission merely, an "alderman" has not been included in the charter provision by name as one made subject to removal by the city council. It is noticeable that the power of removal from office of the accused official other than "the mayor," as it is provided for in the city charter, is conferred upon the "city council." Under the express terms of the city charter (section 8) the "city council" is made to consist and shall be composed "of the mayor of said city and five aldermen." The entire council, the mayor, and the five aldermen, is constituted the tribunal, and must hear and determine the charges preferred, although "the concurrent vote of three-fifths of all the aldermen" may pronounce a valid judgment of removal. Unless otherwise expressly provided, the power so conferred could not legally be exercised by the aldermen independently of the mayor, nor by the mayor and less than "three-fifths of all the aldermen." The provision differs from that providing for the trial of "the mayor," for when he is required to appear and answer to a charge he is not a constituent element of the body nor a part of the tribunal to act. It is "the aldermen" only (section 64) that compose the court or tribunal for removal of "the mayor." And the particular provision further widely differs from the phraseology of the state law. The state law, as noted, expressly provides that the alderman "against whom complaint is made" shall not be a constituent element nor a part of the "court to try and determine the case." Rev.St. 1925, art. 5992. The plain inference from the context seems to indicate with sufficient clearness that it was contemplated only the removal by the city council of those officers exercising purely executive or ministerial functions and not aldermen.

It is further evident, it is believed, that the charter provisions were not intended to clothe the city council with power of removal of an alderman, although its terms include "any officer of said city." Section 58. It is provided that (section 59) "Before any officer created by this charter" shall be removed from office written charges shall be preferred against him. After the charges have been preferred against "any officer of the said city," then (section 62) a day "for a trial thereon" shall be set by the mayor, and notice shall be given "the accused and all of the aldermen of said city to be present at such time." A distinction is evidently recognized and intended to be between the words, as used, of "officers" and of "aldermen." The charter provisions specially denominate an "alderman" and give that title to him as a member of the city council, involving functions purely of legislation. An "officer" is used in peculiar distinction to denominate and include all persons in the service of the city who have to do with the execution or administration of the laws, whether elective or appointive. In requiring, as the section mentioned does, "all of the aldermen of said city" to be notified to be present for the trial of the accused "officer of the said city," it was plainly contemplated the removal of all officers other than aldermen. Manifestly an accused alderman could not be regarded as by intendment to be one of the court or tribunal which was to decide his own case. The principle of public policy would prohibit it. It is a matter of the highest moment, and a fundamental idea running through and pervading the whole system of judicature and of widespread popular opinion that the rule of disqualification on account of self-interest in the result should extend to and be applied to persons or tribunals exercising functions of a quasi judicial nature.

There is distinguishment in the particular charter provision between this case and Riggins v. Richards, 97 Tex. 229, 77 S.W. 946. There the two charter provisions with other provisions considered together were regarded as intended to include and apply to a mayor in general classification of an officer subject to removal. A mayor may more reasonably be included in the general classification of an officer, as his duties are chiefly executive and administrative.