State v. May

• Decision Date: 26 October 1891
• Parties: STATE ex rel. CANNON et al. v. MAY.
• Court: Missouri Supreme Court

17 S.W. 660

106 Mo. 488

STATE ex rel. CANNON et al. v. MAY.

Supreme Court of Missouri, Division No. 2.

October 26, 1891.

MUNICIPAL CORPORATIONS — REORGANIZATION — REPEAL OF EXISTING ORDINANCES — APPOINTMENT OF STREET SUPERINTENDENT — MANDAMUS TO COMPEL DELIVERY OF BOOKS AND OFFICE FURNITURE.

1. The charter of Kansas City of 1875 conferred upon the council exclusive power over the streets, and provided that the mayor and council might appoint an engineer, among other officers, and such other officers as might be provided by ordinance. By Rev. Ord. 1888, there was created the office of street commissioner, to be appointed by the mayor, to superintend the repairing and cleaning of the streets. The charter of 1889 established the board of public works, and provided that the said board should exercise supervision over the streets, and should employ at least one engineer, and "appoint such additional engineers, clerks, inspectors, assistants, and other persons" as might be necessary; and conferred upon the council the same power over the streets as that given by the charter of 1875. It authorized the council to appoint all officers required by the charter, whose appointment was not otherwise specially provided for, and provided that all ordinances in force at the time the charter took effect, and not inconsistent therewith, should remain in force until altered or repealed by the council. Under the charter of 1875 the engineer's department exercised practically the same power over the streets as was conferred by the charter of 1889 upon the board of public works. The engineer, however, had no authority to appoint or remove the superintendent. The council, by its ordinance No. 268, approved August 2, 1889, defined the duties of the board of public works, established the department of streets under its control, and fixed the salary of the superintendent. Held, that the ordinance of 1888 was not impliedly repealed, and the board therefore had no authority to appoint the superintendent.

2. The ordinance of 1888 provided that the street commissioner should hold his "office for the term of one year;" that it should be the duty of such "officer" to superintend the repairing and cleaning of the streets; and that before entering upon the duties of his "office" he should give bond for $10,000. Held, that the incumbent of the position was an officer, and not merely an employe of the board of public works.

3. Under the charter of 1889, which vested in the council exclusive control over the streets, and expressly provided that the mayor and council should have power to appoint certain officers, and that there should also be such other officers, servants, and agents as might be provided by ordinance, ample authority was given to the council to provide for the appointment of a street commissioner; and the fact that the article in the charter of 1875, authorizing the appointment of such a commissioner, was omitted from the charter of 1889, did not evince an intention to abolish the office.

4. The charter of 1889, art. 3, § 1, giving the mayor and council exclusive power to clean and repair the streets, was not in conflict with article 6, § 10, giving the board of public works power to "supervise" the same; and the mayor and council could create the office of street commissioner, and prescribe his duty as that of superintending the cleaning and repairing of the streets under the supervision of the board.

5. Although quo warranto, and not mandamus, is the proper remedy to determine the title to a public office, particularly when the office is already filled by an actual incumbent exercising the functions of the office de facto, and under color of right, yet, where the relator holds an uncontested title to the office, or his title has been adjudicated and finally established by a competent tribunal, and he is in possession, mandamus will lie to compel the delivery to him by his predecessor of the books and papers belonging to the office.

The facts fully appear in the following statement by GANTT, P. J:

This is an extraordinary proceeding by mandamus, brought by the relators, constituting "the board of public works of Kansas City, and W. L. Sheppard, their appointee as superintendent of streets, against respondent, John May, the superintendent of streets of said city, appointed by the mayor, by and with the consent of the common council of said city, for the possession of certain office furniture and public records. The petition and pleadings are perhaps the best statement of the case, and are substantially as follows:

The petition, in substance, alleges that the city of Kansas City is a municipal corporation, incorporated by special charter under and by virtue of section 16 of article 9 of the constitution of the state of Missouri. That by the provisions of said charter there was established within and for the city an executive department to be known as the "Board of Public Works." That the relators herein, as designated, now constitute the board of public works of the city. That under and by virtue of said charter the common council of the city of Kansas City, by its ordinance No. 268, duly adopted and approved on the 2d day of August, 1889, entitled "An ordinance defining the duties of the board of public works, establishing departments under their control, fixing the number of employes and the salaries of the same," which said ordinance is in words and figures as follows: "No. 268. An ordinance defining the duties of the board of public works, establishing departments under their control, fixing the number of employes and the salaries of the same. Be it ordained by the common council of Kansas City: Article 1. Section 1. The duties of the board of public works shall be to meet at its office at least once a week in open session, to consider and take under advisement such business as may come before it. Said board shall employ at least one engineer, who shall be known as the `City Engineer,' and it shall appoint such additional engineers, inspectors, clerks, assistants, and other persons as may be necessary, subject to removal at the will of the board, for cause, by a vote of three-fourths of said board; and all employes shall give bond, as is now required, or may hereafter be required, by ordinance. Sec. 2. Said board shall supervise the grading and paving of all streets, avenues, alleys, and public grounds; the cleaning, sprinkling, repairing, and improving of all streets, alleys, and public places; the construction, altering, and repairing of all bridges, culverts, receiving basins, sewers, drains, and water-courses within said city; the laying of gas and water pipes through any street or alley, and the issuing of permits for connecting with any gas, sewer, or water pipes; the laying down and repairing of all sidewalks, crosswalks, curbing, and guttering; the construction of all vaults under any portion of said streets; the construction, alteration, and removal of all buildings, houses, barns, stables, fences, and other similar improvements upon lots and lands within the limits of the city, and the issue of permits therefor; the construction and repair of the city hall, engine-houses, and other public buildings in the city. Sec. 3. It shall be the duty of the board of public works to purchase all supplies and material needed by the city in its several departments. In all cases where the cost of said supplies and material shall exceed the sum of five hundred dollars, it shall be the duty of said board to advertise for proposals for such supplies and materials, and they shall award the contract to the lowest and best bidder, requiring a bond for the fulfillment of the contract: provided, that the board shall have the right to reject any and all bids, if not deemed satisfactory, and readvertise in like manner as at first. When the cost of such supplies or material shall not exceed the sum of five hundred dollars, the board may make such purchases in whatsoever manner they may deem for the best interests of the city. Sec. 4. It shall be the duty of the board to divide or classify the various works or interests under its control into departments, so far as may be, and keep an accurate account of each branch, showing the amount expended for original improvements and constructions, and the amount for repairs, superintendents, and other expenditures, exhibiting the source of expenditure; to make a report in writing to the common council once every three months, or oftener if required, giving the expenditures of the different branches or departments of the work under the control of said board, and embracing a statement of the condition, progress, and operation of the work under its charge; to furnish, through its president, to the mayor and common council, or either branch thereof, such data or information as may be from time to time necessary to report; at the beginning of each fiscal year to submit to the comptroller a statement of the estimated amount required by said board for repairs and improvements during the ensuing year; to keep books of account, showing with entire accuracy the receipts and expenditures of the board in such manner as to enable the same to be understood and investigated; and also to preserve on file in his office duplicate vouchers for all its expenditures, which books and duplicates shall at all times he open to the examination of the comptroller, finance committee of the common council, or any other committee appointed by said council. Sec. 5. All contracts and official acts of the board of public works shall be signed by the president or by two members of the board, attested by the secretary, under seal of the board. Sec. 6, (as amended.) The board of public works is hereby authorized to employ the following persons: Secretary, per year, $1,800.00; chief clerk, (purchasing agent,) $1,500.00; clerk, (book-keeper,) $1,000.00. Sec. 7. Said board shall also exercise such other powers and perform...