Gibbs v. Board of Aldermen

CHIEF-JUSTICE PRYOR delivered the opinion oe the court. This case involves a question of jurisdiction only. The appellant, Gibbs, was a member of the board of park commissioners, and, for causes alleged, was cited to appear before the board of aldermen upon a proceeding to remove him from office. The jurisdiction to remove the appellant is found in section 2781 of the Kentucky Statutes, and is as follows: “Executive and ministerial officers, unless otherwise provided in this act, shall be removable by the board of aldermen sitting as a court, under oath, or affirmation, upon charges preferred by the mayor or any two members of the board of councilmen,” etc. It is claimed that the manner of removing such an official has been otherwise provided for under section 2847 of an act for the government of cities of the first class. That section reads: “If any member of said board (park commissioners) cease to be a bona fids resident or housekeeper of the city, or incur any of the disqualifications mentioned herein, [494] or become incapacitated to perform any of tbe duties of commissioner, or be found guilty of any felony or high misdemeanor, he shall immediately cease to be a member of said board.” And that, by the provisions of this section, the board of aldermen are in effect prohibited from removing the appellant by impeachment, and that, if such jurisdiction is attempted to be given, that no such power exists, as is shown by the change made in the present Constitution on this subject. The Constitution of 1849 provided: “The judicial power of this Commonwealth shall be vested, both as to matters of law and equity, in one supreme court (to be styled Court of Appeals), the courts established by this Constitution, and such courts inferior to the supreme court as the General Assembly may, from time to time, establish.” The present Constitution provides :“The judicial power of the Commonwealth, both as to matters of law and equity, shall be vested in the Senate, when sitting as a court of impeachment, and one supreme court (to be styled the Court of Appeals), and the courts established by this Constitution.” So it is contended that the new or present Constitution created all the courts necessary for the purposes of State government and withheld from the legislature the power to create courts, as was authorized by the Constitution of 1849. Section ICO of the present Constitution left with the legislature the right of determining the manner in and the cause for which city officials may be removed; and, while the board of aldermen may be termed, in one sense, a court, it is an organized municipal body, with the power to remove city officials, and is not a court of impeachment, nor was it ever contemplated by the framers of the Constitution that city officers could be removed by impeachment proceedings before the State Senate. Angelí & Ames on Corporations, sec [495] tion 110, say: “That the power of amotion is incident to every corporation.” Mr. Dillon, in his work on Municipal Corporations, says: “The power to remove a corporate officer from his office, for reasonable and just cause, is one of the common-law incidents to every corporation.” And the framers of the Constitution, recognizing the common-law rule on the subject, by an express constitutional provision, gave the power to the legislature to provide the manner and the causes for which officials of municipal governments may be removed. This power to remove is not strictly judicial, and was not so regarded at common law; and the fact that the board of aldermen is called a court does not make the entire act unconstitutional. We have recently held, in the case of Todd, mayor, v. The Boards of Public Works and Safety, that where no causes of removal have been designated, the common-law rule supplies the defect, and if the causes are assigned as to the removal of a park commissioner, there is no other mode of proceeding pointed out than the section of the statute giving to the beard of aldermen the power to determine such questions. This is the only tribunal provided by the charter, and that the board has the jurisdiction to remove the official for misfeasance or malfeasance in office as well as for causes that unfit him for the place is, we think, unquestioned. (Hinkle v. City of Louisville.) This case has been heretofore in this court on questions bearing on this issue now presented. The case will be found reported in 96 Ky., 407. And the court held the party could not be indicted and punished for perjury because the committee, as constituted, making the investigation was not authorized to administer an oath; but this did not affect the [496] jurisdiction of the board to try the appellant for the offenses charged. We have nothing to do in the case before us as to the guilt or innocence of the appellant. As before stated, the only question is as to the jurisdiction of the board of aider-men to try the appellant. It is not necessary to determine whether there should be a conviction by a court of competent jurisdiction, under an indictment for bribery or perjury, which of itself would render the office vacant, before the board could act. Other charges are made of an indefinite character that may affect the discharge of his duties as an official, or, if not, render him unfit for the place. But, as before stated, we are not investigating such questions, but only the one of jurisdiction. The judgment is, therefore, affirmed.