Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1874-03-03
CICALLA AGAIN.
Decision OF Judge HaIsey I'm the Case
Of the State OF Tennessee Ex. Rel.
Paul A. CieaIIa VS.. A. &. Tread
well et. AT.
CicaIIa TO be Reinstated Rs AIdermaR
from the NJ xth Ward-A Perempt0ry
Mandamus Issued-OptniOn OF
the Court.

Judge Halsey, OF the second circuit
court, yesterday rendered the following
opinion in the Paul Cicalla mdnddmus against
A. @. Treadwell et al, the petition for which
has been previously published In the APPEAL.
This decision sets forth several points Of gen.
ersl interest 10 lawyers, as well as to the
public.
/ the other in the nature Of proceedings in quo
JUoTTdntO. A writ OF nldnddlHttS was pre-
| viously sued out by the relator herein, which
] offices to which the relator sought to be re-
/ stored were already dued, aud in such case
! nldHdG1RuS was not, in the opinion of the
court the appropriate remedy. II the quo
! lrdrTdntO proceeding an I'M JUNCTION was OBJ
/ tained which was dissolved by this court for
/ want of Jurisdiction TO sustain an in junction
] in aid OF such proceeding in court of law.
| These cases are submitted upon petition and
/ answer, with an agreement as 10 the facts.
/ The proceeding in HldnddquS Will first be con-
| sidered.
alleging the pendence of another action be-
tween the same parties for the same purpose.
By consent this plea was overruled. The NJ
ing OF an answer would, however OF itself,
| have had the effect to overrule such plea, and
| would be waiver OF any question as 10
THE JURISDICTION OF THE COURT
as TO the persons of the respondents. The
| only jurisdicuOnal question therefore that
| could be raised at this Stage of the proceeding
would be as TO the subject matter OF the suit.
| II viii not for moment be questioned, that
] HdnddnlGS is a legal proceeding and may
| therefore be entertained by courts o. law in
! ali proper cases. 1t is Insisted, however,
/ that since this action commenced,
members of the board of aldermen have gone
l out of office and new members have been
/ elected aud qualified, and that they should be
/ parties To the action. This does not seem 10
/ be The law. The doctrine upon this point is
! thus stated in Moses on EldnddDu,, page 200:
But in whichever form the proceedings may
] be commenced q. c. whether against the cor
poration by name or its officers it seems that
| a motion for Bldndumtts against a municipal
against the body, and the Judgment is obliga-
tory on the members OF the boards in office at
the time of it's re1dition. And although 1t
may assume the character of an individual
proceeding, yet If ii becomes necessary to en-
force the or'iers OF the court, by attachment
or other process for contempt, a change in the
membership of the board does not so change
the parties as to abate the proceedings The
constituent party of the board may not be the
same, but the representative body remains
Identical" vide also, Md0ideI rs. GTuhdn1, ID
lNetcdH page 56: The question as TO whether
this court has jurisdiction 10 review the pro-
ceedings of the board OF aldermen OF Mem
phis, where il is alledged that a member
thereof has been improperly removed, is
scarcely debaUeaDle
QUESTION UNDER THE AUTHORITIES.
The doctrine upon this point may be thus
briefly stated. Courts OF original and general
jurisdiction, invested with the ordinary
powers OF the kings bench, have supervisory
jurisdi ction over the acts OF mum G pal cor
porations unless that jurisdiction is
taken away by statute. 1t is COM
petent for the legislature to take
sway such jurisdiction, but the intention to
do so must be clearly expressed. Language
like that used in the charter of the city of
Memphis, where it is simply provided that
leach board shall be the Judge of the election
and qualification OF its own members" /" viii
not have this effect. Dillon on municipal
corporations; sections l4l and l42, and authori-
ties there cited.
Where the specific charge stated is insuffi-
cient to justify the removal, or where the re-
moyal is, s,eIrOneous and no good and sufficient
| ground therefor appears the officer is entitled
n, r7FT7s ~ n nra-f
| 1913, ching ID La; Raymond, 1910, 23d Ind,
! "A, 1862 18th Penn, 25l, 1850; butcher, SIC.
/ But where the proceedings are in conformity
/ with the charter, and are regular, the sentence
| VIII not be inquired into collateTally, nor its
| merits examined by nGndGmus or action.
According TO Lord Mansfield, there are three
Writs OF offenses, for which an officer or corpo-
rator may be discharged. First, such as have
| no immediate relation to his Office, but are
I themselves OF so Infamous a nature as to rem
( der the offender unfit to exercise any pubic
! franchise. Second, such as are only against
| his oath and the duty of his Office as a corpo-
! rator and amount to breache of the tacit con-
l dition annexed to his office or franchise.
/ Third, offenses OF a mixed nature as being an
| offense not only against the duty OF his office,
| but also matter indicJable at the common
| law. In offenses OF the first class the removal
/ can only be made after there has been pre-
/ vious conviction in court OF law, and on
! conviction. In onenses of the second class,
/ the corporation may try, and
IF THE CHARGE Is ESTABLISHED,
remove without any previous or other pro-
| ceedings in the courts. In ofenses OF the
third class the English judges have differed on
! the point whether the ON Ger may or may not
/ be removed before a conviction in a court OF
/ justice. Idenl, section ls9.
| II is probable that the Offenses with which
! the rslator was charged would fall under the
| thiId head, as they embrace matters indlct-
! able at common law and violation of the du.
| ties of his office. and il might therefore be
| question of some doubt whether he could
| properly be removed before conviction in
| 1t remains TO be seen whether or not the
/ amoval was regular-as has already been seen,
If the amoval was regular and in conformity
| with the charter, III could not be reviewed IN
! this proceeding, and that where IL is errone-
ous the relator viii be entitled to a p0nddnUS
to restore him.
The charter of the city Of Memphis empow-
| ers the board OF aldermen to expel a member
by a two-thirds vote; but IL does not establish
| the mode of procedure in cases where expul-
| sion is sought. "The proceeding in all cases
| where motion is for cause is advisary or
| judicial in its character; and If the organic
1 law of the corporation is silent as 70 the
| mode OF procedure, the substantial
| principles OF the common law as to pro-
/ Observed Dillon, section l9l. This pro-
I ceediug is essentially advisory; the JUS
| tice of the common law permits no investiga-
| tion of facts which may be followed by q loss
| of rights or by the infiiction OF a penalty 10
! be conducted eI pdrte." Il Ohio part z, pp-
1t appears from the agreed statement OF
| facts in this cause that certain
CHARGES
4 had been made against the relator in the news
/ papers OF the city, and that the relator re-
! quested that a committee OF the board Of al
! dermen be appointed TO inquire into the truth
! OF these charges; that such committee was
] appointed; that IL proceeded to take test1mo-
I ny in the presence OF the retRtOr, and that be
! himself produced witnesses who were exam
| ined by said committee; that the following
day the board of aldermen met; relator had
not been Informed OF the report which said
committee would make, as said committee
/ said committee inform Eaid CicaIla, although
! requested by him so 10 do, whether their re-
! port would be favorable or unfavorable 10
! said relstor; and the committee reported that
/ they found the relator guilty of certain of the
charges and at the time of the report of said
committee said Cicalla had witnesses present
/ to prove-other facts IN the case, all of which
/ the board refused toEbear. Furthermore, the
/ hoard refused 10 hem the counsel OF said re-
/ lator, or even the evidence as taken down by
| said committee, but at once proceeded TO re-
move and expel him from the said board OF
| than herein set forth or charges and specihca-
! tions; that said Clcalla was not present when
| the resolution OF expulsion was passed amid
the widest excitement and confusion"
Under this state OF facts, can IL be said with
any show Of reason that the relator had such
notice OF proceedings TO amove as would be
sufficient in proceeding at common law,
when II was sought to deprive him of a right ?
The relatOr himself requested an 1nvestiga-
ton as TO the truth of the rumors circulated
against him. An Investigation was had, the
/ result OF which was concealed from him, ana
Immediately upon the report OF the commit
tee, and "amid the widest excitement" res
olution of expulsion was passed. When the
committee reported 10 the board, IL would
1 certainly have been emineniIy proper to
have preferred
CHARGES AGAINST THE RELATOR,
and to have fixed a time for trial, giving him
reasonable notice thereof This was not done
I and there was therefore total absence oi
such notice as the Justice OF common law
requires 10 be given 70 all persons accused OF
4 offense.
II is essential, furthermore, in proceeding
. OF this nature, that there should be o charge
( or charges against the accused, specifically
I stated with substantial accu racy, and reason
! able time and opportunity must be given 10
answer the charges and produce testimony
and he is also entitled 70 be heard and de
tended by counsel, and TO cross-exainine wit
nesses and TO except TO the proofs against
him. Dillon, section 1873, citing numerous
l authorities.
The first charges which this record disclose:
I Except the mere rumors and statements
in the newspapers, which were not charges
I in any legal sense) were made before the IN
vestigating committee, and the only opper.
| fuuity afforded the petitioner TO be heard
I upou these charges was before such commit
Tee The board of aldermen were the triers oi
4 the guilt or innocence of the relator, and ii
| was essential to the validity OF the proceed
4 fn0s that the testimony should be adduced
go