State Ex Rel. Burke v. Jenkins

Clakk, C. J., after stating the facts: The question presented is the right of the town commissioners to remove an official for cause and upon notice. In 1 Dillon'Mun. Oorp. (4th Ed.), sec. 240, it is said: “The power to remove a corporate officer from his office for reasonable and just cause is one of the common-law incidents of all corporations.” This doctrine, though declared before, has been considered settled ever since Lord Mansfield’s judgment in the well-known case of The King v. Richardson, 1 Burrows, 517. It is there denied that there can be no power of amotion unless given by charter or prescription, and the contrary doctrine is asserted, “that from the reason of the thing, from the nature of corporations, and for the sake of order and government, the power is incidental.” The same is stated to be the law in 1 Smith Mun. Oorp., sec. 200, and in Mechem Pub. Officers, s,ec. 446. The sub *28 ject is fully discussed, with, ample citation of authorities and with the same conclusion, in Richards v. Clarksburg, 30 W. Va., 491. Such action could not be taken without notice and an opportunity to be heard, except where the officer is removable without cause at the will of the appointing power. And when the motion is allowable only for cause the soundness of such cause is reviewable by the courts upon a quo warranto. Mechera Pub. Officers, secs. 454, 456; 1 Smith Mun. Corp., sec. 202; 1 Dill. Mun. Corp. (4th Ed.), 250; Throop Pub. Off., sec. 364; 2 Abb. Mun. Corp., 636; Danforth v. Kuehn, 34 Wis., 229. Trial by jury is not necessary in amotion from office. Kennard v. Louisiana, 92 U. S., 480; Foster v. Kansas, 112 U. S., 201. Put in this case there was the fullest notice given and opportunity to be heard and sufficient cause shown. If the town commissioners have not supervision of the town funds— if, indeed, they are not responsible for an oversight and control of the disbursement thereof — their duties and powers are of small importance. In some of the old English cases it would seem that the power of removal of a town officer was vested in the whole corporation, something like the modern “Imperative Mandate and Recall.” But in those days the electorate of a town was ’ very small, the franchise being greatly restricted. Our statute (Revisal, sec. 2917) especially provides: “The corporate powers (of towns and cities) can be exercised only by the board of commissioners or in pursuance of resolutions adopted by them, unless otherwise specially provided by law.” The charter of Bessemer is in chapter 377, Public Laws 1893, and neither therein nor elsewhere do we find any provision contrary to what is above said. The judgment of the court below is Reversed.