The morning news. [volume] (Savannah, Ga.) 1887-1900, 1897-10-24
ARGUMENT NOT CONCLUDED.
Continued From eighth Page.

pora ton has power to try them at all for
any ofIense. these are questions for its
council, and can be reviewed by this court
only upon ceruorari."
our second proposition, he said. lis that
the defendant corporation has power 10
try, through lis council these petitioners.
The petition for prohibition states that it
- proceeding 10 remove the petitioners
but exhibit A attached to the petition
shows only that the defendant had notified
them TO appear 10 answer the charges.
There is nothing stated IN the report OF
me committee, or in the resolution adopt
ing this report, about any removal from
Office, although this right we state is
claimed by council Had not a restrain
ing order been issued by Judge Sweat, the
defendant would have proceeded to try the
petitioners under an ordinance of the city
OF Savannah to be found in
Section 80 Of MacDonelrs code
OF Savannah the latter part
remove from Office any officer holding
any appointment under council when con-
victed Of any offense or misconduct
which council may deem a sufficient cause
for such removal Under the act of 1895
creating a board of fire commissioners for
the city of Savannah, it appears that.
while the legislature has created the office
1t has not undertaken to select or
designate the 01icers, and ex-
pressly provides that they are
TO be appointed by the mayor of the city,
whose appointment, before it becomes eff
fective, must be confirmed by the mayor
aud aldermen In council assembled. While
the office Is 4 creation of the legislature
the officers are the creation of the city
authorities. Because the Office may be es-
tablshed by the legislature, it does not fol-
low that the officers filing these Offices
are not municipal officers. In the recent
Brunswick case. for example, of Crovatt
vs.. Mason, decided May q, 1897 the mayor
was held 10 be a municipal officer although
the legislature created the office Of the
mayor. This appears, too, from some of
the authorities hereinafter cited.
The general powers of the mayor and
aldermen Of the city of Savannah are
broad and comprehensive See sec
ton 1916 of the code of 1882.
In the act of 1919, comforting by section
3, these board powers upon the city of
Savannah, il is significantly provided in
section that as often as any doubts
shall arise in the construction of this act
or any act heretofore passed touching the
city of Savannah, the same shall in all
courts of law or equity and elsewhere be
construed and taken most favorably for
said corporation This section is still
the law, and, so far we can discover,
has never been repealed. We insist that
this act fully warrant section 100 of Mac
Donells code, which, while originally pass
ed in 1889 has been re-enacted by the city
though its ordinance passed Dec.
%, 1883, adopting and making of
force MacDonells code. We cite also that
part of the charter of the city of Savannah
to be found in section 1853 of the code of
1882, particularly the latter part thereof.
which recognizes the right of the city 70
provide by ordinance for the discharge for
misconduct of it's officers
"Our general law provides that all Of
fees in this state may be vacated by de-
cision of a competent tribunal declaring
the office vacant. Unless the council of
the city of Savannah be this tribunal
there is none, and we have the remarkably
result that no matter what these officers
may do, how fragrant and outrageous their
conduct, how great the public scandal and
shame incident thereto, there Is no power
to remove them and relieve the public.
Such result ought certainly to give us
pause
I'VE invoke the well-established prlncl-
pie thus decided by the supreme court of
the United States in the unanimous decis-
ion in the case of ex-parte Hennen, 10 p,
259. In the absence of all constitutional
provision, or statutory regulation, it
would seem to be a sound and necessary
rule to consider the power of removal as
incident to the power of appointment
To the same effect Is the well considered
Mississippi case reported in Newson, APP
pellant, VS.. Cooke Z Am. reports, 6S6. 1t
will be noticed that in both of these cases,
parties were removed from office arbitra-
rily, without any cause assigned or claim
ed, and the courts recognized that this
could not be done where their term was
fixed. The point Is, however, for which
these and other cases are abundant au-
thority, that in the absence of constitu-
tional or legislative prohibition, the power
of removal is incident to the power OF APP
pointment of officers. This principle is IA
tai we submit to the contention of the
sd al
with them on the proposition, which we
admit that, unless the arbitrary power OF
removal is conferred officers can be re-
moved only for cause and after
| judicial hearing and trial. the result of
| which is subject to review on certiorari.
We submit that Mr.. Dillon is clearly right
| in his opinion that in the absence of an
| express grant or statute comforting or lin
| iting the power, the common council or
| one of our ordinary municipal corpora
| lions in the absence of an express or i'm
| Piled restriction in the charter, does pos
| sess the incidental power, not only to
| make bylaws, but, for cause, to eXpel its
| members, and for cause, to remove cor
| porate officers, whether elected by 1t or
| by the people"
ut will be noticed. too, that the very
| act creating these offices uses, the follow
| ing significant language: Should a va
| cancy occur In said board at any time from
|
| cause than the expiration of a regular
term, it shall be the duty of the mayor of
said city to appoint an incumbent within
| thirty days after the occurrence of said
vacancy to fill said unexpired term, which
! appointment shall be acted upon by the
mayor and aldermen of the city of Savan-
| nah i'm council assembled, and shall be-
| come effective when confirmed
In conclusion We respectfully insist, I'M
! der the decisions of our own supreme court
and the other authorities, that this writ
cannot be sustained in any event, unless
| it is made clearly to appear that there is
| an entire absence of power to try, and
! that even then the writ will not issue cx
| debito justtiae, but only in the event there
Is no other remedy. Surely it cannot be
| contended. in view of the eminent author
! tiles like Dillon, Minor and Beach, and the
! decisions of eminent courts, and the ample
and full powers of the city Of Savannah,
! that il is entirely clear that the city coun-
| ell is so far without any power that this
! harsh and extraordinary writ must issue.
! 1t is sufficient for US, in order to invoke
| the principle that parties must resort to
1 tho ordinary loyal ram h CHI