The State ex rel. McEntee v. Bright

• Decision Date: 21 December 1909
• Parties: THE STATE ex rel. P. J. McENTEE et al. v. H. L. BRIGHT et al
• Court: Missouri Supreme Court

123 S.W. 1057

224 Mo. 514

THE STATE ex rel. P. J. McENTEE et al. v. H. L. BRIGHT et al

Supreme Court of Missouri

December 21, 1909

Final writ awarded.

G. M Pritchett and W. R. Robertson for relators.

(1) The mayor and council of Webb City, when proceeding with the hearing of the charges against the marshal, even though they were performing acts which were judicial in their nature constituted no part of the judiciary of the State and the circuit court of Jasper county had no right or authority to interfere therewith or to undertake to substitute its judgment or discretion for that of the mayor and council. Albright v. Fisher, 164 Mo. 56; State ex rel. v Walbridge, 119 Mo. 383; State ex rel. v. Wells, 210 Mo. 601; Donahue v. County, 100 Ill. 94; McCray v. United States, 195 U.S. 27; 1 Dillon on Munic. Corp. (4 Ed.), sec. 242, 244; State ex rel. v Clark, 41 Mo. 44; Vitt v. Owens, 42 Mo. 512; Hockaday v. Newsom, 48 Mo. 196; Kalbfell v. Wood, 193 Mo. 675; State ex rel. v. Goodier, 195 Mo. 551; High, Ex. Leg. Rem. (3 Ed.), sec. 782; People v. Lake City Dist. Court, 6 Colo. 534; Burch v. Hardwicke, 23 Grat. (Va.) 51; Mechem's Pub. Officers, sec. 1020, p. 675. (2) The pleadings herein disclose charges sufficient in law preferred against the city marshal; valid proceedings thereon to remove the marshal, in which he was participating; his special report and written answer therein filed admitting the truthfulness of a great majority of the charges; an order of the judge of the circuit court of Jasper county restraining further action by the council on said charges and setting aside the suspension of and restating the marshal, thereby creating an imperative demand for the exercise of the constitutional supervising power of this court over the circuit court of said county. State ex rel. v. Aloe, 152 Mo. 466; Koehler v. Snider, 177 Mo. 546; State ex rel. v. Reynolds, 209 Mo. 161; State ex rel. v. Stobie, 194 Mo. 62; Railroad v. Wear, 135 Mo. 256; State ex rel. v. Scarritt, 128 Mo. 331; State ex rel. v. Sale, 188 Mo. 493. (3) Since the judge of the circuit court made his provisional order and is now here, jointly with the accused officer, resisting this proceeding, it is unnecessary for plaintiffs herein to show any effort on their part to raise the question of jurisdiction of the circuit court, in that court, before applying to this court for relief. State ex rel. v. Sale, 188 Mo. 493; State ex rel. v. Eby, 170 Mo. 497; State ex rel. v. Aloe, 152 Mo. 466; State v. Williams, 221 Mo. 227. (4) Where a power is granted as in section 5761, Revised Statutes 1899, to remove officers of the city the means to effectuate the power are conferred as a necessary incident, hence no ordinance of the city, as to the method of procedure, is necessary. State ex rel. v. Walker, 68 Mo.App. 110; State v. Walbridge, 119 Mo. 383. (5) Section 5761, which provides for the removal of officers of the city, is not narrowed or impaired by Sec. 5790, R. S. 1899, but the latter section is cumulative thereto and applies to misbehavior in office not contemplated by the former section. Manker v. Faulhaber, 94 Mo. 430; State ex rel. v. Slover, 113 Mo. 202; State ex rel. v. Walbridge, 119 Mo. 383; McGrew v. Railroad, 177 Mo. 533; State ex rel. v. Sheppard, 192 Mo. 497; State ex rel. v. Wallbridge, 69 Mo.App. 657; 1 Sutherland, Sta. Con. (2 Ed.), sec. 261; State v. City, 60 N.E. 705; 1 Beach, Pub. Corp., sec. 192, p. 205; Anderson's Law Dictionary, p. 879. (6) The power given by section 5761 to remove an officer necessarily includes the power to suspend pending the hearing of the charges. State v. Police Commission, 16 Mo.App. 48; State ex rel. v. Lingo, 26 Mo. 496; Westberge v. City of Kansas, 64 Mo. 493; Blackwell v. City of Thayer, 101 Mo.App. 661. (7) The statute provides that the mayor and a majority of the council elect may remove an officer and section 5757, R. S. 1899, makes it a duty of the mayor to preside over all meetings of the council and his failure to preside at such a hearing as the one involved herein would render the proceedings worthless, even with the consent of the accused officer. 28 Cyc., 435, note 98; Throop on Pub. Officers, sec. 386, p. 379.

Frank L. Forlow and Mooneyham, Shepherd & Crane for respondents.

(1) The relators should have filed a demurrer, plea in abatement or made an objection to the jurisdiction of the circuit court of Jasper county, in that court, before the proceeding in prohibition was instituted in the Supreme Court. The relators made no objection to the jurisdiction of the circuit court presided over by Judge Bright. Schubach v. McDonald, 179 Mo. 163; People v. Wood, 21 N.Y. 245; People v. Russell, 49 Barb. 351; Ex parte Hamilton, 51 Ala. 65; State ex rel. v. Gill, 137 Mo. 681; Hudson v. Judges, 42 Mich. 239; Railroad v. Superior Court, 59 Cal. 471; Ex parte McMeechen, 12 Ark. 70; Hanger v. Keating, 26 Ark. 51; 40 Am. Dig. (Cen. Ed.) 2888; Barnen v. Gottschalk, 3 Mo.App. 111. (2) Judicial questions only will be determined by proceedings in prohibition. The only questions involved in a prohibition case are: First. Has the inferior tribunal exercised and is it exercising jurisdiction which it does not possess? Second. After having jurisdiction over the subject-matter, has it exceeded its lawful power? McIndry v. City, 17 Colo. 304; Helms v. Vaughn, 84 Va. 693; State v. Withrow, 108 Mo. 1; State v. Fox, 85 Mo. 61; State v. Keys, 75 Wis. 288; Ex parte Railroad, 104 U.S. 519. (3) When a court acts within the general jurisdictional sphere, but error is alleged in exercising the jurisdiction in the particular case, the Supreme Court will not interfere by prohibition. Wilson v. Burkstresser, 45 Mo. 283; State ex rel. v. Burkhart, 87 Mo. 533; State ex rel. v. Zachritz, 166 Mo. 315; State ex rel. v. Klein, 116 Mo. 259; State ex rel. v. Strobie, 194 Mo. 45; State ex rel. v. Railroad, 100 Mo. 59. See also Maston v. Sloan, 98 Mo. 252; State ex rel. v. Smith, 104 Mo. 419; State v. Withrow, 108 Mo. 1. (4) Section 1, of article 6, of the Constitution of Missouri, provides that the judicial power of the State as to matters of law and equity, except as in this Constitution provided, shall be vested in a Supreme Court, the St. Louis Court of Appeals, Circuit Courts, Criminal Courts, Probate Courts, County Courts, and Municipal Corporation Courts. The word "court" is there used in its technical sense. A court is a judicial assembly, the judge of the court is its presiding officer. While the judge is often called the court, yet he is only so rightly called when the tribunal over which he presides is in session. Bouvier's Law Dictionary gives to the word "court" this definition: "A body in the government to which the public administration of justice is delegated." State ex rel. v. Woodson, 161 Mo. 453. All judicial power in this State is by our Constitution vested in certain courts therein named, Art. 6, section 1, Constitution. The General Assembly has no authority to create any other tribunal and vest it with judicial power. State ex rel. v. Ryan, 182 Mo. 355.

GRAVES J. Burgess, J., not sitting.

OPINION

In Banc

GRAVES, J.

This is an original proceeding in prohibition. Relators are the mayor, all the city councilmen, except one, and the city attorney, of Webb City, Jasper county, Missouri, a city of the third class. Respondents are Henry L. Bright, Judge of Division No. 1 of the circuit court of Jasper county, Missouri; Joseph H. McNeill, marshal of Webb City, and Joseph H. Williams, a councilman of said city, who refused to join in this proceeding.

The history of the case gathered from the facts pleaded in this action are about as follows:

On April 26, 1909, McEntee, the mayor of Webb City, suspended from office the said McNeill, marshal of said city, for reasons as in his order stated: "for the reasons that he has been guilty of wilful violation of official obligations, culpable official negligence, dereliction of duty, conduct inconsistent with his official character and duty and official incompetency, as is more specifically and fully set out in said charge accompanying this order."

Accompanying this order of suspension, which order was duly signed by the Mayor, there are fifty-seven specific charges made by the Mayor. The charges are thus headed:

"Charges against J. H. McNeill as Marshal of Webb City, Jasper County, Missouri.

"I, P. J. McEntee, as mayor of said city of Webb City, Jasper county, Missouri, in support of the above suspension of said J. H. McNeill, as Marshal of said city, and as cause for his removal from office, charge that said J. H. McNeill as Marshal of said city is guilty of wilful violation of his official obligations; culpable negligence and dereliction of duty; of conduct inconsistent with his official character and duty, and of official incompetency as follows, to wit:"

Then follow the fifty-seven specific charges which cover nearly all imaginable derelictions of duty that could be charged to a city marshal, including a number of fines which had been collected and not accounted for, as well as the collection of fines under color of his office in several cases wherein there had been no proceedings against the parties. Further details are not required at this point.

The charges of the mayor thus closed: "I, therefore, P. J McEntee, as mayor of said city, for the reasons set out, have under and by virtue of the authority in me vested by the ordinances of the said city, and the statutes of Missouri, suspended the said J. H. McNeill from the office of marshal of said city, being convinced of the truthfulness of said charges and desiring the said J. H. McNeill to be removed from the office of Marshal of said city, do hereby submit to your honorable body the foregoing charges to the end that you may consent to a...