State ex rel. McMahon v. City of New Orleans

Citations

• 107 La. 632

Syllabus

<p>Syllabus.</p> <p>1. In the absence of either express grant, or of express or implied limitation, of authority, a municipal corporation, as ordinarily constituted, possesses the incidental power, for cause, to remove corporate officers, whether elected by it or by the people. If an officer has no franchise in his office — that is to say, if the nature of his office is a mere employment, he may be removed without notice, subject to the liability of the corporation for damages for breach of contract, if, by such removal, a contract is violated. But, where there is a franchise in the office, resulting from an election, or appointment, for a term fixed by law, there must be a charge against the officer to be removed, stated with substantial certainty; notice must be given of the time and place fixed for the hearing; reasonable opportunity must be afforded to defend, in person or by. counsel; and, where the charge is insufficient, if proved, to justify the motion, or where, being sufficient, there is no evidence to sustain it, the officer is entitled to a mandamus to restore him.</p> <p>12. The rule as thus stated is subject to the exception, that notice may be dispensed with, (1) when the officer appears and answers, (2) when he has permanently left the municipality, (3) in certain cases where it is apparent thar the amotion was for good cause and that the order to restore would be without practical and useful effect.</p> <p>3. The power of amotion conferred upon the city of New Orleans by section 12 of its charter is neither greater nor less than the city would have had if that instrument had been silent upon the subject, the effect of the grant, as contained in the charter, being merely to set at rest any doubt which might.have existed if the matter had been left to implication.</p> <p>4. The authority conferred upon the council to “expel one of its members by a two-thirds vote of all the members elected to such council, five days’ notice and an opportunity of being