Diffie v. Cowan

Appellant insists it was error to sustain the motion to dissolve, because he says (1) appellees at the time had not filed an answer to the petition for the writ; (2) the Legislature could not confer on the mayor and aldermen power it undertook to confer on them to suspend, try, convict, and remove elective officers of the city; (3) if the Legislature had such power it did not intend to confer it so far as aldermen were concerned; and (4) if the Legislature could and did confer such power, it did not appear in the charges preferred against appellant that he had done any of the things specified in the charter as furnishing ground for removing him from his office as alderman. The matters specified will be briefly discussed in the order they are stated above. 1. The motion to dissolve the writ containing, as it did demurrers and exceptions to appellant's petition and a denial of any equities pleaded therein, we think it constituted a sufficient "answer" within the meaning of article 4658, R.S. 1925, providing that such motions "may be heard after answer filed." Worm v. Wood (Tex.Civ.App.) 223 S.W. 1016. 2. By the terms of the charter (Sp. Acts 1907, c. 104), power to try and remove any officer "for [quoting] malfeasance, nonfeasance or misfeasance in office, or for wilful violation of any of the ordinances of the said city, or for habitual drunkenness or for corruption or for wilful or habitual neglect of the duty or upon conviction of a felony," was conferred upon the city council, composed of the mayor and five aldermen, three of whom constituted a quorum. Sections 8, 58. Such trial was to be had at a time fixed by the mayor after charges in writing against the officer had been filed with him (section 59), and after ten days' service of a copy of the charges was had on the officer (section 60). The mayor and aldermen were to constitute a court to try and determine the charges (section 63), and were to have power by the concurrence of three-fifths of its members to suspend the accused officer pending an investigation of the charges against him. In the event of such suspension, the council was empowered to "appoint [quoting] some suitable person to discharge the duty of such officer so accused." Section 61. As we understand the law applicable, the Legislature acted within the limits of power it possessed when it authorized the city council to hear and determine, in the manner pointed out, charges preferred against any of the city's officers, including alderman. Riggins v. Richards, 97 Tex. 229,77 S.W. 946; Callaghan v. Tobin, 40 Tex. Civ. App. 441, 90 S.W. 328; Bonner v. Belsterling (Tex.Civ.App.) 137 S.W. 1154. The contention to the contrary, as to aldermen, is on the theory that it appeared the intention of the Legislature was to limit the exercise of power it conferred to officers of the city other than alderman. Certainly the intention to make such a limitation was not indicated by the language used in the provision of the charter conferring the power. Section 58. That language was that "any officer" of the city might be tried and removed for malfeasance, etc., in the way provided. It is argued that giving such meaning to the provision of the statute would present "the anomaly that it was the purpose of the Legislature to give a court created by it power to try and remove from office one of its own members," and attention is called to the fact that by section 64 other provision was made for trying the mayor. It is argued that such special provision and not making such provision for trying aldermen indicated the Legislature did not intend that an alderman should be tried by the mayor and the other aldermen. As we see it there is little, if any, force in the argument. The special provision for trying the mayor we think owed its existence in the charter to the necessity of providing some officer other than him with whom charges against him could be filed, who could fix a date for the trial, and who could give proper notice thereof to the mayor. Those duties, when the charges were against another officer than the mayor, by the terms of the charter as shown above, devolved upon the mayor. No other (article 5995, R.S. 1925) provision than that in section 58 above referred to existed in the charter or in the general laws of the state for trying and removing aldermen guilty of conduct like that denounced in the charter and charged against appellant by the city attorney. Certainly, we think, it should not be held, in the face of unambiguous language used by the Legislature indicating to the contrary, that that body did not intend the provision it made for the trial and removal of any officer should apply to aldermen. Riggins v. Richards,97 Tex. 229, 77 S.W. 946, where it was held that the words "any officer" used in a charter granted the city of Waco, meant all officers, whether elected by the people or by the city council. 4. It was declared in the charter that no person in the service of the city should "directly or indirectly [quoting] use his authority or official influence to compel or induce any person in the public service of the city of Texarkana to pay or promise to pay any political assessment, subscription or contribution" (section 70); and it was provided that a violation of said inhibition should be punished by a fine of not less than five nor more than one hundred dollars (section 73). The *Page 1100 charges preferred against appellant are set out in the statement above. It will be noted that they were that appellant, while an alderman, attempted to extort money from members of the fire department to be used as campaign funds. If appellant did that, we think he thereby violated provisions of the charter referred to, and was guilty of malfeasance in office within the meaning of section 58 of the charter. It follows from what we have said that we think the judge did not err when he sustained appellees' motion and dissolved the writ. It may be added, that if the conclusion reached by us that the power the city council invoked was power lawfully conferred upon it is correct, the action of the judge in dissolving the writ was warranted by the rule that "courts of equity [quoting from the opinion of the court in Callaghan v. Tobin, 40 Tex. Civ. App. 441, 90 S.W. 328, 330] will not interfere to protect a person from removal from office by a man or body of men to whom the power to remove is given by law"; and see Riggins v. Thompson, 30 Tex. Civ. App. 242, 70 S.W. 578; and Miles v. Logan (Tex.Civ.App.) 265 S.W. 421. The judgment is affirmed.