
    CASE 49 — PETITION ORDINARY
    JANUARY 11.
    Tompert vs. Lithgow.
    APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.
    1. The board of aldermen ‘of the city of Louisville, acting as a court to try charges preferred against a city officer, is a court of limited jurisdiction, and every thing essential to make it such a court must appear affirmatively.
    2. The clerk of the board of aldermen of the city of Louisville is not authorized to administer oaths.
    3. A notary public is not-authorized to administer official oaths to the board of aldermen, sitting as a court of impeachment.
    4. The board of aldermen of the city of Louisville, as organized, not being legally sworn, was not a legal court authorized to try Mayor Tompert; and the message, charges, and specifications preferred, made out no charge of official delinquency, and their proceedings, by which he was ousted, were illegal and void. There was, therefore, no vacancy in the office of mayor for the general council to fill, and Lithgow, the appointee of the council, became a usurper in legal contemplation.
    Barrett & Roberts, For Appellant,
    CITED—
    
      Civil Code, secs. 532-536.
    
      State Constitution, secs. 1, 2, and 3, art. 5.
    
    
      Bill of Rights, secs. 12 and 20.
    
      New City Charter of Louisville, sec. 15.
    
      Schedule Constitution, sec. 11.
    
      Session Acts, 1863, page 541.
    
      New City Charter, art. 4, secs. 4 and 1.
    
      Constitution, art. 4, secs. 36, 39, 41, 1.
    3 Metcalfe, 240; Lowe vs. Commonwealth.
    
    1 Stantorís Rev. Stat., 338.
    
      Constitution, art. 6, sec. 6.
    
      1 Blackstone, 46.
    35 Penn., 157.
    38 Penn?, 298-99.
    3 Greenleaf on Ev., 490.
    2 Dana, 270; Coger vs. Coger.
    
    3 Crunch, 331 — 337; Wise vs. Withers.
    
    12 Johnson, 257-263.
    19 Johnson, 7-32.
    Robert J. Elliott, Bunch & Lee, and Stites & Bullitt, For Appellee,
    CITED—
    8 B. Mon., 648; Page vs. Hardin.
    
    3 Metcalfe, 238; Lowe vs. Commonwealth.
    
      Sec. 1, Rev. Stat., vol. 1, page 465; lb., jp. 466.
    1 Greenleaf, sec. 528.
    
      Roscoe's Crim. Ev., 759.
    
      Peake's N. P. C., 155.
    3 Yantis, 414.
    1 Bibb, 309.
    2 Marshall, 491.
    5 Dana., 533.
    
      City Charter of Louisville, art. 4, sec. 15.
   JUDGE WILLIAMS

delivered the opinion op the court:

We have not deemed it essential to inquire whether the 15th section, 4Jh article, of the city charter of Louisville, is in conflict with 5th article of the State Constitution, which gives to the “ House of Representatives the sole power of impeachment,” or section 35, article 4, which provides that the county oiflcers “shall be subject to indictment or presentment for malfeasance or misfeasance in office, or willful neglect in the discharge of their official duties, in such mode as may be prescribed by law, subject to appeal to the court of appeals; and, upon conviction, their offices shall become vacant.”

As the first provision includes all civil officers, and the latter all the county officers, there is much reason to infer that it was intended no officer should be ousted in any other way from the discharge of the duties and reception of the emoluments of the office.

But however this may be, by section 15, article 4, city charter, 82, the board of aldermen could only become a court to try charges preferred against a city officer upon being duly sworn; and being a court of the most limited jurisdiction — indeed, having jurisdiction, as a court, only for the purpose of the trial and removal of officers— every thing essential to make it such a court must appear affirmatively, and no intendment or presumption in its favor can be indulged.

The record shows that eleven of the aldermen were sworn by “ Esquire Clementsand afterwards, another alderman coming in, reported he had also been sworn by Clements before getting to the hall. The board then, on consultation, determined to be sworn again, and were sworn by their clerk, who wds also a notary public.

Whether Esquire Clements was a notary public, or some other kind of officer, or no officer at all, does not appear; and, even if he was, the board abandoned tl^p oath administered by him, and organized under the oath administered by their clerk and notary public.

We have found no provisions in the city charter nor general statutes authorizing the clerk of said board to administer oaths. Therefore, on this branch of the subject, we are left to the inquiry how far a notary may administer such an oath.

The Constitution recognizes such officers as mayors of cities and other police officers.

By section 2, Schedule Constitution, it is provided, that “ the oaths of office, herein directed to be taken may be administered by any judge or justice of the peace until the General Assembly shall otherwise direct.”

By section 11, chapter 71 (2 Stant. Rev. Stat., 191), it is provided, that “ the official oath of any officer may be administered by any judge or justice of the peace.”

Section 1, article 8, Constitution, prescribes the oath to be taken by “ all officers before they enter upon the execution of the duties of their respective offices,” and is the oath referred to in the schedule to the Constitution and Revised Statutes.

These aldermen could only become judges and sit as a court, even for the special purpose of trying charges against an officer, by taking said oath, and that administered by an officer with competent authority.

By section 611, Civil Code, affidavits may be made before notaries public.; but section 612 defines what are affidavits, which does not include official oaths.

Both the Constitution and laws recognize a difference between official oaths and affidavits, and this was deemed of so much importance as to require a constitutional declaration who should administer such oaths until otherwise provided by law; and the Legislature has deemed it to be of sufficient importance to designate who shall administer official oaths, and certainly did not intend that those officers should be enlarged without an explicit provision.

If this be correct, the notary had no legal authority to administer the official oaths to those aldermen, and thereby make them judges; and for want of a duly administered oath they did not become judges, nor did their body become a court; hence their proceedings as a court were wholly illegal and void. Had they been a regularly constituted court, it would have been for the purpose of trying the mayor- — Tompert—upon charges preferred by the council; and therefore it is essential to determine whether Tompert had been charged by said council.

Charges signify an accusation, made in a legal manner, of illegal conduct, either of omission or commission, by the person charged. We are therefore bound to look into the charges as preferred, and the specifications, to see whether there was a charge of illegal conduct by the mayor; for if none such were made, then no cause existed for said court to try.

If there had been a legal court, and legal charges against the mayor for illegal conduct, we could have nothing to do with its decision, however erroneous, only by appeal, which we have no doubt could have been done, and not on a proceeding of the character now before us.

The general council of the city, consisting of the common council and board c*fi aldermen, had passed this resolution : “ Resolved, that the mayor is authorized to have prepared by the assistant city attorney, and' he is authorized to sign, and he is authorized to execute, a contract with Isham Henderson and his associates,” fyc.

This resolution the mayor returned, with his objections in writing, when each board of the general council again passed it by the required majority of all the members elect. The common council consisted of twenty-four members, and the resolution was passed over the mayor’s veto by thirteen ayes to ten nays. This was on November 16, 1865.

December 5th, 1865, the mayor sent in another message to the general council, stating the reasons why he had declined executing the contract contemplated by the resolution.

1. Because he had learned since its passage that improper influences had been used as to one of the board of common council, and presented the affidavits upon which his suspicions were predicated; that without his vote the resolution had not passed, and suggested that the integrity and purity of the body required that this matter should be investigated.

2. That Mr. Henderson had produced no authority from his numerous associates to bind them.

3. That Mr. Henderson had taken back the writings by which, as president of the Portland Railroad Company, it was to make certain concessions to the city; upon the reception of which message the common council immediately preferred charges against the mayor as follows :

“ Refusing to discharge the duties of the office of mayor of Louisville.

“ SPECIFICATIONS.

“ That the general council of the city of Louisville, in the month of-, 1865, duly and legally passed certain resolutions, accepting a proposed contract with certain amendments between the city of Louisville and Isham Henderson, for himself and his associates, for a street railway along Market street, and other streets in the city of Louisville, and directing said contract to be accordingly prepared by the assistant city attorney, and when so done, the same to be entered into, signed and acknowledged, by the said Philip Tompert, as mayor of the city aforesaid, for and in the name of said city ; which resolutions were vetoed by said mayor, but were, notwithstanding, afterwards duly and legally adopted by each board of said general council, and thereby became the law and in full force; after which, said contract was reduced to writing by the assistant attorney, as directed by, and in conformity with, the terms of the resolution aforesaid; and being so reduced to writing, and duly and legally signed by said Isham Henderson, for himself and his associates, was, in due time and properly, presented to said Philip Tompert, as mayor aforesaid, to be entered into and signed and acknowledged by him as such mayor, and for and in the name of said city of Louisville, which he has unlawfully, and without cause, refused, and still unlawfully and without cause, refuses to do, thus disregarding, failing, and refusing to carry into effect the lawful orders and requests of the general council of the city of Louisville, and thus refusing to discharge the duties of his office of mayor of the city of Louisville;” which charges and specifications were also carried by a bare majority of the members elect, the councilman thus charged voting in the affirmative.

The language of the message is respectful, and the reasons urged seem to be of the weightiest character, and he does not therein even intimate that he would finally decline to execute the contract; but had merely postponed its execution until the matters therein could be brought to the notice of the general council for its action.

The affidavits presented with the message raised a prima facie presumption, at least, that a councilman had been corrupted, and, when coupled with the further offer by the mayor to produce other testimony to establish the fact, his action was certainly not illegal, as by said section 15, city charter, he had the right to make charges against any officer; and although the board might not deem it necessary to vindicate its own integrity by an investigation, yet this did not make the mayor’s conduct illegal.

The fact that the resolution was passed over the veto by this councilman’s vote, and that he voted for charging the mayor, and with it the charges were only made by a bare majority, gives to this case a most extraordinary aspect.

The other questions presented in his last message by the mayor were of the gravest legal character, involving important interests of the city, and manifests in him a watchful, legal vigilance as to the city’s interest, instead of a disregard of official duty. Nor can we perceive how the city’s interest could suffer by a delay in the execution of said contract until these questions could be acted on by the general council, especially as other parties were then seeking a contract to extend the street railroads; and unless this had been made apparent, it is hard to perceive the illegality of the mayor’s conduct; and this is not charged in the specifications.

We are of opinion that the board of aldermen, as organized, was not a legal court authorized to try Mayor Tompert, and that the message, charges, and specifications preferred, made out no charge of official delinquency, and their proceedings, by which he was ousted, were illegal and void. There was, therefore, no vacancy in the office of mayor for the general council to fill, and appellee Lithgow, in legal contemplation, became an usurper when he entered upon the discharge of the duties of mayor under their appointment.

Wherefore, the judgment below is reversed, with directions for further proceedings not inconsistent herewith.

To A PETITION FOR RE-HEABING PRESENTED BY THE COUNSEL FOR APPELLEE, delivered the following response:

JUDGE WILLIAMS

We remark at the outset that all the records, papers, &c., used on the trial of Tompert, as mayor, before the board of aldermen, were introduced as evidence in this case by appellee, over the objections of appellant; therefore, he cannot now object to its being considered, or to the result thereby produced.

This record proves precisely this state of facts :

October 26, 1865, the common council rejected the proposition of Isham Henderson and associates to build a street railway through Market and other streets of Louisville, by a vote of ten ayes to twelve nays; that November 9, 1865, this vote of rejection was reconsidered, and Henderson’s proposition accepted by a vote of twelve ayes to nine nays.

The resolution authorizing the mayor to execute and sign the contract was then passed.

November 16, 1865, the mayor’s written objections to said resolution were received and considered, and the resolution again adopted, his objections to the contrary notwithstanding, by a vote of thirteen ayes to ten nays— Mr. Glore, in every instance, having voting to make the contract, to adopt the resolution, and to sustain it over the mayor’s veto.

December 5, 1865, the mayor seiiit to the council his message, accompanied with two affidavits, charging that Glore had received a bribe to sustain the said contract. In this message he says:

“ I deem it due to the council and the citizens of Louisville to have the matter presented to the council for investigation before completing the contract, believing, as I do, that the council will deem it due to their body to purge it of corruption and venality in properly regarding the interests of the citizens of Louisville which have been intrusted to their keeping. I am ready to submit to the council the affidavits which impeach one of the members Of your body in this transaction when called upon, and am prepared to furnish the names of several additional citizens, who, I am informed, are also cognizant of the facts, and are ready to testify before your body.; and I therefore respectfully submit the information before executing said contract, as a reason for its non-execution. I would further respectfully submit, that when a member of your body receives a consideration for his support of any project pending before your body, he becomes a party in interest, and under the charter would not have a vote; and that in this case, if such vote is excluded, the said resolution has not received the requisite vote to pass it over my veto.”

This message, instead of being considered, and the charges preferred against Glore inquired into, was tabled by a vote of fourteen ayes to seven nays, he voting in the affirmative; and immediately the charge and specification against the mayor for failing to discharge the duties of his office in not executing said contract was preferred and sustained by a vote of thirteen ayes to ten nays, Glore voting in the affirmative.

December 28th, 1865, “Mr. Dulany presented a resolution raising a joint session this evening at 8 o’clock, to elect a councilman from seventh ward, in place of N. 8. Glore, expelled, and to elect a mayor for the un expired term of Philip Tompert, deposed from office; which was .adopted.” We have now given the exact history of this case, that its precise status and the principles of law applicable to it may be appreciated.

But it is insisted that the evidence shows that Joseph Clements was a justice of the peace of Jefferson county, because Lucas states that eleven of the board of aider-men were sworn by “ Joseph Clements, Esq., J. P., J. C.” Now we will not stop to discuss this proposition, nor to show that the official signature is a very different thing from the statements of a witness; because, if it be conceded that Clements was a justice of the peace, still there is no evidence that Crow, who constituted one of the court, was ever sworn by him. True, Crow himself stated that such was the case; but the board of aldermen very properly refused to receive this as evidence; hence, they determined that the whole twelve should be sworn before the notary public; and it was under this latter oath they really organized and proceeded as a court. And this was the true reason why said board determined to be again sworn; regarding the oath administered to the eleven, and Crow’s report of his being sworn, as being insufficient for them to proceed as a court; and we concur with them.

Had these gentlemen been indicted for malfeasance in office under this Clements oath, we have no doubt that, if the facts appearing in this case had been established in a trial on such indictment, that the court would, as he should, have instructed the jury that the refusal to organize under the oath administered by Clements, and the taking another before the notary, was an abandonment of the first oath, and to acquit the parties.

The judge who tried the case does not seem to differ from us as to the law; for, in the opinion, he says: “ If the judgment of the board of aldermen was so informal and irregular as to be null and void, then no vacancy existed at the time of defendant’s election.”

We suppose he means if the proceedings were so irregular, and not the mere form of the judgment. It was therefore not upon the law, but the fact of such irregularity, that the difference is founded; for he evidently did not so regard the proceedings, whilst we do, for the reasons assigned.

It is said again that appellee could have proven on said trial that appellant not only refused to sign the contract, “ but also, among other gross delinquencies and official misbehavior, that, when he sent in his second message, he made a violent and abusive speech in the presence of, and to the council; and declared, in so many words ‘that they had stultified themselves — that he would not sign the contract, and would make them swallow their lies ? ” but the court would not allow this, and therefore a modification should be so made as merely to direct a new trial.

The court very properly so ruled, because there was no charge or specification which authorized the board of aldermen to receive such evidence. The only charge and specification was for official delinquency in not executing said contract with Henderson and his associates; and, were the case now.sent back for a new trial, this evidence would be wholly inadmissible.

Then the charge and specification were for not executing this contract. Did the charge and specification, founded on the official proceedings of the common council and aldermen and mayor, show that his conduct was illegal ?

Express power is given the mayor by the 15th section, city charter, to charge any officer. He made a charge of official corruption against one of the common council, and gives that as a reason why the contract should not then be executed. Instead of investigating this charge, the common council tabled his message and charge, and received the votes of the councilman thus charged in aid thereof, and then immediately charged the mayor for official delinquency in not executing this contract, which was not authorized, only by counting the vote of this same councilman; and then, having procured the expulsion of the mayor by his vote, expelled this same councilman.

If this most extraordinary proceeding does not conclusively show corruption and fraud, it certainly does conclusively show that the mayor was acting in good faith to protect the public interest of the city, and was in the legal discharge of his duties. And to say that it is the right of the common council to charge, and the board of alderman to expel, the mayor on charges made at their arbitrary will and pleasure, without legal cause, is an utter absurdity.

If it be granted that the common council may prefer charges, and that the board of aldermen may tiy the same and expel the mayor from office, this can only be done for illegal official delinquency, in accordance with, and subordination to, law; and is not an arbitrary, despotic, and absolute power to do so at their own will and pleasure.

Whilst purity, integrity, and honesty shall be regarded as cardinal principles of public virtue, public morality, and public justice, no case bearing the indelible impress and characteristics of this, can ever address itself imposingly to the favorable consideration and discretion of a court of justice.

But it is again said that the public will be involved in confusion and litigation unless Lithgow be regarded as the rightful mayor. Without intending to decide any litigation which may grow out of these acts, we may be indulged in saying, we apprehend no such calamitous consequences; for this oourt has often recognized the validity of the acts of the officer de facto, as between third parties, and in Stokes vs. Kirkpatrick (1 Met., 138), reviewed and reaffirmed this doctrine.

But if it should be otherwise, it is not the fault of the law or its courts, and should admonish impeaching tribunals that it is an extraordinary power, and should always be cautiously exercised, and never for any other than the gravest legal causes.

It may be remarked, that, in all this cause, not even the suspicion of the least impropriety is to be found against Lithgow. He only accepted the office after it was declared vacant, at the hands Of the general council, and afterwards by an election of the people. But, as there was no legal vacancy, both of his elections were illegal, and he must therefore surrender the office.  