The State ex rel. Reid v. Walbridge

Decision Date08 January 1894
PartiesThe State ex rel. Reid v. Walbridge, Mayor
CourtMissouri Supreme Court

STATEMENT.

By this original proceeding in this court, a rule was issued and served on the mayor of St. Louis, requiring him to show cause why he should not be prohibited from proceeding to try the relator on certain charges which had been preferred against him by Robert E. McMath, president of the board of public improvements, which charges showed upon their face certain derelictions of official duty on the part of relator as commissioner of public buildings.

After setting forth the notice to the relator from the mayor, the charges preferred and the items and particulars offered in their support, the petition praying for the writ concludes "The relator states that no provisions of law have been enacted or are in force governing proceedings at a trial of the character aforesaid before the mayor, or providing means by which the relator can compel the attendance of witnesses on his behalf at said hearing, or denouncing the pains and penalties of perjury against witnesses who at said proceedings shall testify falsely to any material fact in the matter, or providing for a trial by jury.

"That under the general statutes of this state by sections 7127, 7128, 7129 and 7130, the circuit court of the city of St Louis has exclusive jurisdiction of the trial and determination of the matters which the said mayor is proceeding, as aforesaid, to try and determine in the premises, and at said trial in the circuit court the accused is entitled to a trial by jury.

"That the proceedings of the mayor, as aforesaid, are an infringement on the rights of the relator, and are an attempt to exercise authority that the mayor does not possess, and are an encroachment upon the authority and jurisdiction of the courts of this state.

"Wherefore the relator prays that a writ of prohibition to the said Cyrus P. Walbridge, mayor, as aforesaid, be directed prohibiting him from proceeding or holding the trial aforesaid," and is duly certified.

The respondent, for his return, demurred generally on the ground that the petition did not state facts sufficient, etc. And because the facts stated in the petition did not bring this cause within the classification of causes enumerated in section 7, of article 14 of the constitution, nor within section 7127, Revised Statutes, 1889, etc., etc. These sections were enacted in 1877. Laws of that year, p. 346.

Section 7 aforesaid of the constitution, declares: "The general assembly shall, in addition to other penalties, provide for the removal from office of county, city, town and township officers on conviction of willful, corrupt or fraudulent violation or neglect of official duty."

Section 7127 of the statute, in obedience to the constitutional mandate just quoted, and also of section 18 of article 2 of that instrument, provides that: "Any person elected or appointed to any office or employment of trust and profit, under the laws of this state, or any ordinance of any municipality in this state, except such officers as may be removed by impeachment, who shall fail to personally devote his time to the performance of the duties of such office or employment of trust or profit, and any county, city, town or township officer who shall be guilty of any willful, corrupt or fraudulent violation or neglect of any official duty, shall forfeit his office, and be removed therefrom as hereinafter provided."

The other sections relied on by relator provide for the enforcement of the section just quoted, by a complaint filed by a prosecuting officer, etc., in the circuit court, and a trial after so many days with and by a jury if demanded, and for a judgment of removal if the defendant be found guilty of violating the provisions of section 7127, etc., etc.

Section 5 of article 4 of the city charter, provides that: "Any elected city officer may be suspended by the mayor and removed by the council for cause; and any appointed officer may be removed by the mayor or council for cause. In either case the mayor shall temporarily fill the vacancy, except as hereinafter provided."

The office of relator is appointive, and its term is four years (Rev. Ord. 687, sec. 681), not expiring until 1895. The revised ordinances in briefer terms than the charter, provide for the removal by the mayor of an appointed officer, "for cause" (secs. 917, 919 and 1105), but though provision is made for charges being preferred and a trial had where the mayor suspends an elected officer (secs. 918, 1094 et seq.), yet no such provision has been discovered in regard to appointive officers.

Writ denied.

Leverett Bell and William B. Thompson for relator.

The proposition maintained by the relator in this case is that the circuit court of the city of St. Louis has exclusive jurisdiction of the trial and determination of matters which the mayor of said city is proceeding to try and determine herein, and that the mayor is without jurisdiction in the premises. State constitution, sections 20, 21, 22, 23, 24 and 25, of article 9, and section 7 of article 14; charter of St. Louis, section 5 of article 4, 2 R. S., p. 2102; Laws of 1877, p. 346; sections 7127, 7128, 7129 and 7130, 2 R. S., p. 1664; Ewing v. Hoblitzelle, 85 Mo. 64; State v. St. Louis, 90 Mo. 19; Manker v. Faulhaber, 94 Mo. 430; State v. Railroad, 22 S.E. 910.

W. C. Marshall for respondent.

(1) The petition does not state facts sufficient to constitute a cause of action. Laws of 1870, p. 469; Const. 1875, sec. 7, art. 14; Manker v. Faulhaber, 94 Mo. 430. (2) The act of 1877 did not repeal by implication the power of the mayor to remove for cause. The charter being special and particular, will not be construed as repealed by implication by the act of 1877, unless there is an irreconcilable conflict between the two so that they can not both stand. City v. Standard, 24 Mo.App. 192; Vaughn v. Scade, 30 Mo. 600; Ex parte Hollwedell, 74 Mo. 395; Tittman v. Edwards, 27 Mo.App. 492; Young v. Railroad, 33 Mo.App. 509; State ex rel. v. Frazier, 98 Mo. 426; State ex rel. v. Cemetery Ass'n, 11 Mo.App. 570; St. Louis v. Alexander, 23 Mo.App. 483-508; State ex rel. v. McDonald, 38 Mo. 529; Peters v. Renick, 37 Mo. 597; State ex rel. v. Macon, 41 Mo. 453; Sedgwick on Stat. & Const. Law [2 Ed.], 98, and note. (3) The remedy afforded by the city charter and that provided by the act of 1877 can stand together. The purpose to be accomplished is the same in both. The means to be employed for the accomplishment of the purpose in view are different, but a later statute which provides another method of attaining the desired result, does not repeal by implication a former statute simply because the means employed are different. City v. Standard, 24 Mo.App. 192; Vaughn v. Scade, 30 Mo. 600; Ex parte Hollwedell, 74 Mo. 395; Tittman v. Edwards, 27 Mo.App. 492. (4) The legislature had no power to repeal or take away the power conferred upon the mayor to remove appointed officers for cause. (5) The mayor has power to administer oaths and to summon witnesses, and hence there is no merit in the claim that there is no machinery afforded by law for securing a trial or for punishing witnesses who swear falsely. Section 7120, Revised Statutes, 1889, gives the mayor power to administer oaths. Section 31 of article 4 of the city charter requires the city marshal to execute and return all processes and orders of the mayor. This affords the machinery necessary.

OPINION

Prohibition.

Sherwood J.

The foregoing premises are laid down as the basis for the following remarks:

In Manker v. Faulhaber, 94 Mo. 430, 6 S.W. 372, action was brought against the mayor and others for damage for maliciously removing the plaintiff from the office of city collector, in November, 1878. The defendants justified under the amended charter of that city, approved March, 1875, which contained this provision: "The mayor * * * shall have power, with the consent of the board of aldermen, to remove from office any person holding office created by charter or ordinance, for cause, and on application of three-fourths of the board of aldermen he shall be compelled to remove any officer created by ordinance." The trial court refused to permit that section of the charter to be read in evidence, and instructed the jury that, under the constitution and laws of Missouri, as they existed in November, 1878, the mayor and board of aldermen of the city of Sedalia had no legal right or authority to remove the plaintiff from the office of city collector. This action of the trial court was held erroneous; that the charter of Sedalia was unaffected by the act of 1877; that the charter not conferring on the mayor and aldermen the power to remove a municipal officer, was special and particular, while the act of 1877 was general and affirmative, without repealing words; that the two acts were not irreconcilably inconsistent, and, therefore, there was no repeal by implication.

That ruling can not be otherwise regarded than as decisive of this case; since the charter of St. Louis of 1876 is no more inconsistent with the general law of 1877 than was the charter of Sedalia on the point already quoted. Manker v Faulhaber, has been approvingly cited as to repeals by implication in State v. Noland, 111 Mo. 473, 19 S.W. 715, and directly followed in State ex rel. v. Slover, 113 Mo. 202, 20 S.W. 788, where it was distinctly ruled that section 8233, Revised Statutes, 1889, providing that an official stenographer might be removed without the intervention of a jury, for "incompetency or any misconduct in office," by the judge of the circuit court, on charges entered of record, and notice given, could stand as consistent with section 7127,...

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