WATSON v. COMMON COUNCIL OF CITY OF MARYSVILLE ET AL

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District Court of Appeal, Third District, California.

WATSON v. COMMON COUNCIL OF CITY OF MARYSVILLE ET AL.

Civ. 6974.

Decided: August 31, 1943

F. E. Carlin, City Atty., of Marysville, for appellant. Manwell & Manwell, of Marysville, for respondent.

The Common Council of the City of Marysville, represented by a majority of its members, appeals from an order granting a peremptory writ of mandate ordering said Common Council to declare John W. Watson, Mayor of the City of Marysville, and to permit him to exercise the duties of that office.

On the first day of February, 1943, the Common Council met in regular monthly session. After the transaction of routine affairs a motion to adjourn sine die was unanimously carried. Immediately following said motion the city clerk called the meeting to order for the acknowledged purpose of electing a Mayor. The petitioner herein was thereupon nominated and elected Mayor of the City of Marysville for the “ensuing year”, and immediately assumed the duties of the office. The meeting was uneventful until the Mayor announced his committee appointments which, in the language of the clerk's minutes “caused considerable discussion”. That this was not an understatement is evidenced by the fact that the following day a special meeting of the Council was called by a majority of the members, and the Mayor was unseated. Notices of the special meeting were served on all members but only those calling the meeting were in attendance. Immediately after calling the meeting to order a motion was made, seconded and carried that “Mayor John W. Watson be removed as Mayor of the City of Marysville, and that the office of Mayor be declared vacant”. Thereafter a motion was made, seconded and carried “that Councilman A. Wallace Fetrow be elected to the office of Mayor of the City of Marysville to fill the unexpired term of former Mayor of John W. Watson, who was removed, which term expires on the first Monday of February, 1944”.

Thereafter on the 15th day of February, petitioner John W. Watson filed his petition for a writ of mandamus praying that an alternative writ issue compelling respondents to show cause why petitioner should not be declared Mayor. After argument the petition was taken under submission by the court. On March 1, 1943, the court made its findings that John W. Watson was the duly elected Mayor of Marysville, that he was not lawfully removed, and thereupon entered judgment and issued its writ as previously mentioned.

The provisions of the Charter of the City of Marysville relative to the election of Councilmen and Mayor are found in Section 2 of Article II, wherein it is provided that “the Common Council * * * shall consist of five councilmen who shall be elected by the qualified electors of said city * * *”, and Section 3 of Article II, which provides that “the Common Council shall elect one of its members as Mayor of the City to serve for such term as the Council shall direct, provided that the Council shall not have power to extend the office of such Mayor beyond the term for which he was elected Councilman.”

An examination of the Charter has disclosed only one other provision relative to the office of Mayor, Section 15 of Article II, wherein it is provided that he “shall appoint the various Committees” to be provided for by ordinances. On the question of removal from office the Charter is silent. No further provision is made in the Charter relative to the selection or removal of the Mayor. The Constitution, however, does make specific provision for the situation as presented in this appeal. Section 16 of Article XX thereof provides in part as follows: “When the term of any officer or commissioner is not provided for in this Constitution, the term of such officer or commissioner may be declared by law; and, if not so declared, such officer or commissioner shall hold his position as such officer or commissioner during the pleasure of the authority making the appointment; but in no case shall such term exceed four years; provided, however, that in the case of any officer or employee of any municipality governed under a legally adopted charter, the provisions of such charter with reference to the tenure of office or the dismissal from office of any such officer or employee shall control.”

Appellants herein contend that where a term of office is not set by Charter, ordinance or other law the majority members of the Council have the power to remove at will and without cause, and that this would be true whether the Mayor was considered as an officer of the city or only the presiding officer of the Council.

We are entirely in accord with appellants' first contention that the action of the Council in electing petitioner for “the ensuing year” was not such a declaration or fixing of the term of Mayor as is contemplated by said Section 16, Article XX, and therefore he could be removed at the pleasure of the Council.

The sole purpose and intent of the regular meeting of February 1, and of the special meeting of February 2, was to elect a Mayor. Neither meeting was for the purpose of fixing a specific term for the office. The mere fact that in the motion nominating petitioner as Mayor is found the words “for the ensuing year” does not make the motion a declaration by law of a definite term as contemplated by the Constitution. To place any other construction on the motion would be to read into it something which obviously was not intended. Likewise the wording of the nomination of Mr. Fetrow on the following day “to fill the unexpired term of former Mayor, John W. Watson, who was removed, which term expires on the first Monday of February, 1944”, is of no assistance to petitioner. The mention of the removal of Watson and the expiration date of his term is purely surplusage. Were it otherwise, respondent's contention would authenticate as law the Council's redundancy. Something which, without a doubt, was not within the contemplation of the majority members. The petitioner's term had already expired at the will of the majority. The phraseology used in the motion nominating Mr. Fetrow could not be transmuted by some strange metamorphosis into a declaration by law of a definite term as provided for in Section 16, Article XX, supra.

The cases cited by respondent are not in point as they refer to term appointments wherein removal can be only for cause (People v. Jewett, 6 Cal. 291) or specific Charter provisions setting out mandatory procedure to be followed on removal (Boyd v. Pendegast, 57 Cal.App. 504, 507, 207 P. 713) or as in the case of MacAlister v. Baker, 139 Cal.App. 183, 33 P.2d 469, wherein the provisions of the Charter specifically relating to balloting were at issue as well as the executive acts of a Council and rules of parliamentary procedure thereto; and a further point, although not raised in that appeal, of a definite term appointment.

In the present case the Charter of the City of Marysville contains no provision relative to the tenure of office of the Mayor, hence the petitioner held his position at the pleasure of the Council with no limitation as to his removal. Section 16, Article XX, Constitution. Therefore, the power of removal could be exercised at any time in the same manner and subject only to the same provisions as any other motion or resolution by a majority vote of the Council. Section 13, Article II of the Charter. “The only way in which this power of removal can be limited is by first fixing the duration of time of office, and then providing the mode, if deemed necessary, by which the officer may be removed during the term.” Decker v. Board of Health Commissioners, 6 Cal.App.2d 334, 44 P.2d 636, 637. McQuillin on Municipal Corporations, 2d Ed. Rev. Vol. II, page 455, Sec. 582, in referring to a case such as is herein presented, states: “In such case the power of removal is regarded as incident to the power of appointment or election. Thus as it has otherwise been expressed, the general rule is that where the power of appointment is conferred in general terms, the power of removal at the discretion and at the will of the appointing power is implied, and always exists unless limited or restricted by some positive provision of the law. In brief the power to appoint carries with it the power to discharge or to remove.”

We are also in accord with appellants' second contention. There is nothing in the Charter indicative of an intention to confer powers or impose duties upon the Mayor as an officer of the city other than those belonging, under common parliamentary law, to the presiding officer of a legislative body. The sole purpose of the Charter provisions cited was merely to regulate the time when and the manner in which the Council should meet, organize, and elect their presiding officer. Nor is there anything indicating an intention to create a city office distinct from that of the councilman. The Mayor must be a councilman, and when he ceases to be councilman he necessarily ceases to be Mayor whether he has occupied that position one day, one month or one year, but the termination of his office of Mayor in no way affects his status as councilman. The distinction is readily apparent, one is at the will of the Council, the other is at the will of the people, with the first being completely dependent upon a continuity of the latter.

The historical rule of parliamentary law always has been that a legislative body having the power to choose its own presiding officer from among its own members has also the inherent power to remove such officer at its will or pleasure unless prohibited by some constitutional or statutory provision. Here we find no such prohibition. The Mayor, as such presiding officer, being freely elected by other members of the Council, is removable by them at their pleasure in the same manner. (Cushing's Law and Practice of Legislative Assembly, Section 299.)

“A city council is a local legislative body, and in creating it the legislature, by implication, within the limits prescribed, conferred upon it all the powers and privileges in the manner of conducting their own proceedings usually recognized by parliamentary law as belonging to such bodies; and it would require a clear and explicit expression of legislative intention to that effect to justify the conclusion that it was the design to deprive this city council of the universally recognized parliamentary right of control over their own presiding officer.” State of Minn. v. Kiichli, 53 Minn. 147, 54 N.W. 1069, 1070, 19 L.R.A. 779.

It is a basic fundamental of a democratic society and its institutions that the will of the majority shall prevail unless by virtue of the enactment of laws and constitutional provisions the majority, by its own act, has qualified this inherent right.

Under the authorities herein cited we must conclude that petitioner was not the occupant of an office, the term of which had been declared by law, but that he held “his position * * * during the pleasure of the authority making the appointment”, Section 16, Article XX, Constitution, and secondly, we find nothing in the Charter or ordinances of the City imposing duties upon the Mayor other than the customary and usual duties of a presiding officer of the local legislative body, in this instance the Common Council, and as such he held office at the pleasure of that body.

The judgment is reversed.

I dissent. Section 16 of Article XX of the Constitution expressly provides that in the case of any officer or employee of any municipality governed under a legally adopted charter, the provisions of such charter with reference to the tenure of office or the dismissal from office of any such officer or employee shall control.

The charter of the City of Marysville provides that “The Common Council shall elect one of its members as Mayor of the City to serve for such term as the Council shall direct.” (Italics added.) Pursuant to this authority, petitioner was duly elected by the Council as Mayor of the City, to serve for the ensuing year. The Council thereby exercised its power and fixed a term. Petitioner thereafter held his office for such term and not at the pleasure of the Council. The charter contains no provisions regarding the dismissal from office of any of its officials nor does it authorize the Council to dismiss the Mayor without cause or without notice or hearing. Therefore, petitioner was not subject to dismissal by the Council without cause and without such notice or hearing. Boyd v. Pendegast, 57 Cal.App. 504, 507, 207 P. 713; Legault v. Board of Trustees, 161 Cal. 197, 118 P. 706, 39 L.R.A.,N.S., 519.

That petitioner was elected for a term appears not only from the minutes of the meeting at which he was elected, but from the minutes of the meeting of the following day when the Council purported to remove him and to elect his successor, which minutes recite that a motion was made, seconded and carried that Councilman Fetrow be elected “to the office of Mayor * * * to fill the unexpired term of former Mayor John W. Watson, who was removed, which term expires on the first Monday of February, 1944.” (Italics added.)

As to the contention of respondents that the Mayor of Marysville is not an officer of the city, it may be noted that the Council itself refers to the position as an office, that Article 2 of the charter provides that the legislative power of the city is vested in the Mayor and Common Council, and that Article 3 of the charter provides that “The following salaries shall be paid to the several officers of the City, to wit: 1. The Mayor and each member of the Common Council * * *.”

The judgment of the trial court should be affirmed.

PEEK, Justice.

THOMPSON, J., concurs.Rehearing denied; ADAMS, P. J., dissenting.

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