State ex rel. Hart v. Common Council

Mitchell, J.

By the charter of the city of Duluth, all powers and duties connected with, and incident to, the government and .discipline of the fire deportment of the city are vested in' three commissioners, called the -Board of Fire Commissioners,” who have entire control of the department, including the appointment and discharge of all employes connected with it, and making their own -rules and regulations for the government of the same. These commissioners are, “on nomination of the mayor,” “appointed by the common council,” and hold their office for the term of three years. The charter provides that:

“Any member of said board may at any time be removed by a vote of two thirds of all the members elect of the common council of said city for sufficient cause: * * * provided, that the said common council shall previously cause a copy of the charges preferred against such member sought to be removed, and notice of the time- and place of hearing the same, to be served on him at least ten days previous to the day so assigned, and opportunity be given him to make his defense or counsel.”

It is here sought, by certiorari, to review the proceedings of the common council in assuming to remove the relators from the office of fire commissioners.

1. It is urged by respondents that the power of removal from office conferred on the common council is purely administrative and quasi political, and therefore that their proceedings cannot be reviewed on certiorari.

Thát this power may not be “judicial,” in the sense that it can offiy be conferred upon the courts, in whom all judicial power is vested under the constitution, has nothing to do with the question; for there is nothing now better settled than that certiorari will'lie to review the quasi judicial acts and proceedings of municipal officers and bodies. Neither is there anything better settled than that while the incumbent has no vested right of property, as against the state, in a public office, yet his right to it has always been recognized by the courts as a privilege entitled to the protection of the law, and that proceedings, in all cases where the amotion from office is for cause, upon notice and hearing, are adversary and judicial in their nature, and may be reviewed on certiorari. We think there is practically no conflict in the authorities on this point, the only difference among them being merely as to what they will review on such a writ. Some courts, restricting the writ to its original common-law office, hold that it brings up for review only the record, and not the evidence, and hence that they will not look into the evidence at all, but merely inspect the record, to see whether the inferior tribunal had jurisdiction, and had not exceeded it, and had proceeded according to law, or, as expressed in one case, whether the tribunal “had kept within its jurisdiction, ■or whether the cause assigned was a cause for removal under the statute.” Other courts hold that the evidence may be brought up, not for the purpose of weighing it, to ascertain the preponderance, but merely to ascertain whether there was any evidence at all to sustain the decision of the inferior tribunal, — whether it furnished any legal and substantial basis for the decision. The latter is the doctrine of this court as to the office of the writ of certiorari. But, while this is so, we recognize the prime importance of each department of government avoiding anything like improper interference with, the others in the discharge of their functions; also, that while city councils and other municipal bodies may not have the power to remove from office except for cause, yet, this power being designed to insure efficiency and fidelity in the discharge of official duty, the degree of incompetency or inefficiency which amounts to sufficient cause for removal must of necessity, within certain established limits, rest somewhat in the sound discretion of the officer or body in whom the power of removal is vested. .We also recognize the fact that while in the exercise of this power their proceedings are quasi judicial, and hence reviewable by the courts, yet they are not courts, but essentially legislative and administrative bodies; and that their action should be considered in view of their nature and the purposes for-which they were organized, and not tested by the strict legal rules which prevail in trials in courts of law. Hence, if such a body has kept within its jurisdiction, and the evidence furnished any legal and substantial basis for their action, it ought not to be disturbed for any mere in-formalities or irregularities which might have amounted to reversible error in the proceedings of a court. To apply any other rule to the proceedings of such bodies would be impracticable, and disastrous in the extreme to public interests.

2. The first contention of relators is that the common council never acquired jurisdiction, because the notice of hearing and the copy of the charges were not served on them as required by the charter. The particular objection is that, when the service was made on them, the resolution of the common council preferring, these charges against them had neither been approved by the mayor, nor passed over his veto, as required by the city charter. Sp. Laws 1887, ch. 2, subch. 3, § 1. There is no merit in this point. Under the charter the power of removal from office is vested solely in the common council, and the mayor has no power over, or control of, their proceedings in presenting or investigating charges against a city official with a view to removal from office. Their action in preferring charges against relators was not such an ordinance or resolution as comes within the purview of subch. 3, § 1, and did not require the approval of the mayor before it took effect.

3. The next question is whether the charges presented were sufficient in law to constitute a cause for removal, — whether they were sufficient in- form and substance to authorize the common council to proceed. “Cause,” or “sufficient cause,” means “legal cause,” and not any cause which the council may think sufficient. The cause must be one which specially relates to and affects the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public. The cause must be one touching the qualifications of the officer or his performance of its duties, showing that he is not a fit or proper person to hold the office. An attempt to remove an officer for any cause not affecting his competency or fitness would be an excess of power, and equivalent to an'arbitrary removal. In the absence of' any statutory specification the sufficiency of the cause should be determined with reference to the character of the office, and the qualifications necessary to fill it. Bagg’s Case, 11 Coke, 93b; Rex v. Richardson, 1 Burr. 517-540; State v. Love, 39 N. J. Law, 14; State v. McGarry, 21 Wis. 496; State v. Common Council, 9 Wis. 254; People v. Thompson, 94 N. Y. 451.

Whilé the charges need not be stated with the technical nicety or formal exactness required in pleadings in courts, yet they must be specifically stated with substantial certainty. The specifications of the alleged causes should be formulated with such reasonable detail and precision as shall inform the incumbent what dereliction of duty is urged against him. There should be a statement of charges with a specification of facts constituting a sufficient cause for removal, sufficiently distinct to apprise the officer of the grounds upon which the charges are based. Andrews v. King, 77 Me. 224; People v. Thompson, supra; Dillon, Mun. Corp. § 255.

The sufficiency and reasonableness of the cause of removal are questions for the.courts. Dillon, Mun. Corp. § 252, and cases cited. This has been the settled law ever since Bagg’s Case, supra, and. we are not aware of any respectable authority to the contrary. Of course, cases (many of which are cited by respondents) where an officer or body was vested with an absolute power of removal at discretion are not in point.

Upon examination of' the charges in this case we are clearly of opinion that they are not sufficient in law. Considering them as a whole, they show on their face that they were not formulated in a very judicial frame of mind. They read more like a heated hostile declamation than a calm and deliberate statement of charges with a view to a fair investigation. Many of them are mere glittering generalities, without any statement or specification of facts; such as, for example, “using their official positions to gratify their personal feelings and prejudices;” “that neither ability, impartiality, nor sense of justice characterize their management of one of the most important branches of the city government;” “that the gratification of their personal spites and prejudices is the paramount motive often actuating and controlling them in the supposed discharge of their duties;” “that they have no just appreciation of the responsibilities that should characterize the discharge of the duties of the important office of fire commissioner,” etc. It hardly need be said that such general accusations as these are entirely lacking in any specification of facts to apprise any one of the grounds of the charges which he is called on to meet.

Some of the charges, such as that “the reasonable recommendations and requests of the common council are treated with the utmost contempt,” have no relation, whatever to the administration of the office of fire commissioner, and remind us of some of the charges in Bagg’s Case.

The first part of the fifth charge, viz. failure to make monthly reports to the common council, as required by the charter, was virtually abandoned, no attempt having been made to substantiate it, and hence may be left out of account altogether. The only charges that even attempt to state any specific cause for removal are the fourth and the last part of the fifth. Indeed, these are the only ones which counsel for respondents seriously attempts to support. The fourth relates to the discharge of officers of the fire department without cause, or from improper motives, but is entirely lacking in specifications of either dates or names.

As the board of fire commissioners has, under the charter, absolute power to discharge any of the employes or officers of the department at their discretion, and may, in the performance of their duties, have had occasion to exercise this power frequently, so general and indefinite a statement is not sufficient to advise them what particular acts are the basis of the charge. The last part of the fifth charge, accusing the relators generally of being “incompetent” and “inefficient,” without specifying wherein or in what respect, is also entirely too vague and general. We agree with counsel that “incompetency” and “inefficiency” in the discharge óf official duty may be good grounds for removal, and that it may not be necessary to specify in detail particular acts or facts. But these words are so general that they may mean anything or everything' which might constitute good cause for removal. For example, incompetency might result from physical disability, from mental disability, or from lack of integrity, etc. So, inefficiency might consist of habitual neglect of duty, incapacity to preserve discipline, or of a variety of things. Hence, while it is not required to go into details, yet the charges ought at least to advise the officer in what respect he is claimed to be incompetent or inefficient. Our conclusion is that none of the charges relied on are sufficient in law.

This renders it unnecessary to consider the evidence at all. We may say, however, that a perusal of it impresses us with the feeling that it furnished no reasonable basis for the action of the council in removing the relators from office. It is perfectly apparent that this whole trouble grew out of a foolish quarrel between the common council and the board of fire commissioners, over the suspension by the latter of a fireman by the name of Twaddle.

The proceedings of the common council in the matter are quashed.

Vanderburgh, J., absent, took no part.

(Opinion published 55 N. W Hep. 118.)