On Motion for Rehearing. Upon a careful consideration of the record it is concluded that the determinative question is that of whether or not the city council, as a special court, has the power under the terms of the city charter of the city of Texarkana, Tex., as it now reads, to try and remove from office an alderman who is elected for a definite tenure of office. Under rules long adhered to, grant of power of removal from office is to be strictly construed, and whatever is not given in unequivocal terms is understood to be withheld. 43 C.J. § 192, p. 195. This rule applies with particular force to a city incorporated by special act of the Legislature. If the authority does not clearly appear in the provisions of the law or of the particular city charter, then no such authority or grant of power can be implied or held to exist. 43 C.J. § 186, p. 188.
The city council of Texarkana is a legislative body. Its members, the aldermen, are the legislators of the city. It has long been held and accepted as settled law that a legislator is not a "civil officer," the speaker of a legislative assembly is not a "state officer," the members of state Legislatures are not "officers of the state," subject to impeachment, and this will hold true even though the State Constitution may fail to expressly give the legislative body control over its own members. In re Speakership, 15 Colo. 520, 25 P. 707, 709, 11 L.R.A. 241; State ex rel. Haviland v. Beadle, 42 Mont. 174, 111 P. 720. May it not be said with equal force that a member of the city's legislative body, an alderman, does not come within the general classification, "any officer" of the city? The failure of the charter to make the city council the judge of the qualifications of its members may be unfortunate; but that consideration may not control a proper construction of its provisions.
Considering the phraseology of the city charter, it is evident that the provisions were not intended to clothe the city council with power of removal of an alderman, although the terms include "any officer of the city." The charter provisions specially denominate an "alderman" and give that title to him as a member of the city council, involving functions purely of legislation. An "officer" is used in the charter in peculiar distinction to denominate and include all persons in the service of the city who have to do only with the execution or administration of the laws. There is clear distinguishment made between *Page 1102 the three different classifications of city officials, of "Mayor," "Alderman," and "officers of the City." Each exercise, and are intended to exercise, different functions and duties.
I concur in the views expressed by Associate Justice Levy in the minority opinion heretofore handed down by him. A majority of the court concurs and agrees that the motion for rehearing be granted, and the judgment dissolving the temporary injunction be reversed, and the cause remanded. It is accordingly so ordered.
SELLERS, J., does not agree, but is of the opinion, as before, that the judgment should be affirmed.