The State ex rel. Chapman v. Walbridge

• Decision Date: 22 December 1899
• Citation: 54 S.W. 447,153 Mo. 194
• Parties: THE STATE ex rel. CHAPMAN v. WALBRIDGE et al., Appellants
• Court: Missouri Supreme Court

54 S.W. 447

153 Mo. 194

THE STATE ex rel. CHAPMAN v. WALBRIDGE et al., Appellants

Supreme Court of Missouri, First Division

December 22, 1899

Appeal from St. Louis City Circuit Court. -- Hon. Selden P. Spencer Judge.

Affirmed (with directions.)

B Schnurmacher and Chas. Claflin Allen for appellants.

(1) A policeman, appointed as such by the board of police commissioners of the city of St. Louis, is entitled to serve for a fixed and definite period of four years from and after the date of his appointment. Laws of 1860-61, p. 449, sec. 6 (2 R. S. Mo. 1889, p. 2195). (2) But if his period of employment has expired and he is neither re-appointed, nor takes the steps necessary to procure such re-appointment by reason of the preference afforded him by the law, he is a mere "hold over," a locum tenens, and may be dismissed from his position by the board at any time, without charges or hearing. State ex rel. v. Stonestreet, 99 Mo. 361; State ex inf. v. Vallins, 140 Mo. 523. (3) Relator having been discharged on October 22, 1895, and having rendered no actual services or duties as a policeman thereafter, and the agreed statement of facts making it apparent that he did not even offer to render any services thereafter, was not entitled to compensation between said date and the day of judgment, March 1, 1897; and the trial court erred when it ordered a warrant therefor to be drawn in relator's favor. Westberg v. Kansas City, 64 Mo 493; Howard v. St. Louis, 88 Mo. 656; Steubenville v. Culp, 38 Oh. St. 18; Mullery v. McCann, 95 Mo. 579; State ex rel. v. Clark, 52 Mo. 508; Mechem's Public Off. and Officers, sec. 332.

Benj. J. Klene for respondent.

(1) A policeman, appointed as such by the board of police commissioners of the city of St. Louis, is entitled to serve for a fixed and definite period of four years from and after the date of his appointment. Laws 1860-61, p. 449, sec. 6 (2 R. S. 1889, p. 2195.) And is not removable except for cause on a hearing after notice. State ex rel. v. Walbridge, 119 Mo. 383; State ex rel v. St. Louis, 90 Mo. 19; Mechem Pub. Off., etc., sec. 454; State ex rel. v. Brown, 57 Mo. 207. (2) Under section 5 of article 14 of the constitution relator had a right to resign at any time and to relinquish any part of a term, which he did, by accepting another office on two occasions. State ex rel. v. Draper, 45 Mo. 355; Biddle v. Willard, 10 Ind. 62; Mechem on Pub. Off., etc., sec. 411; Edwards v. U.S. 103 U.S. 471; State v. Brinkerhoff, 66 Tex. 45; Stubbs v. Lee, 64 Maine, 195; People v. Brooklyn, 77 N.Y. 503; State v. Lusk, 18 Mo. 242; State ex rel. v. Bus, 135 Mo. 325. (3) A turnkey is an "officer of police" as distinguished from a patrolman. Laws 1860-61, p. 449, sec. 7 (2 R. S. 1889, p. 2195); State ex inf. v. Vallins, 140 Mo. 523. (4) Mandamus is the proper remedy by which to secure reinstatement by a policeman who has been wrongfully discharged, while he was actually in lawful possession and enjoyment of his office. High on Extra Leg. Rem., sec. 67; State v. Common Council of Watertown, 9 Wis. 254; Riley v. Kansas City, 31 Mo.App. 439. And to restore him to a full enjoyment of his franchise and to secure the issuance of a warrant on the treasurer for the pay due him. High on Extr. Leg. Rem., sec. 67; Sanford v. City of Kansas, 69 Mo. 466; Riley v. City of Kansas, 31 Mo.App. 439; Flanagan v. City of Kansas, 69 Mo. 462; State ex rel. v. Carr, 3 Mo.App. 6. He is entitled to his compensation for that part of his term after the illegal removal up to the date of his reinstatement, or to the end of his term. State ex rel. v. Carr, 3 Mo.App. 6; Fitzsimmons v. Brooklyn, 102 N.Y. 536.

BRACE, P. J. Marshall, J., not sitting, having been of counsel.

OPINION

BRACE, P. J.

The appellants are the Board of Police Commissioners of the city of St. Louis. This appeal is taken from a judgment of the circuit court of said city, granting a peremptory writ of mandamus commanding the said Board of Police Commissioners to rescind its order of October 22, 1895, dropping relator from the rolls of the police force of said city, to reinstate him as a policeman for the unexpired term of four years beginning July 1, 1893, and to issue to relator a warrant upon the city treasurer for $ 1,352.79, compensation found to be due him from October 22, 1895, to the day of judgment.

The case was submitted and decided in the circuit court on the following agreed statement of facts:

"It is hereby stipulated and agreed by and between the relator and respondents herein as follows: That the records of the Board of Police Commissioners show the following proceedings with respect to the employment and service of the relator as a member of the police force of the city of St. Louis, to wit: That on the eleventh day of September, 1888, the relator, John N. Chapman, who was nominated on the force as an emergency special by Mr. Vice-President Blair, September 4, 1889, having passed a satisfactory physical examination and complied with rule 96 of the Manual, was called before the board and interrogated. Said Chapman was informed that his appointment was temporary, and subject to terminate at any time at the will of the board, and that his salary as an emergency special would be fixed at the rate of sixty dollars per month. Said Chapman agreed to accept the appointment upon these conditions. He was on motion appointed an emergency special, sworn in and ordered to be assigned to duty.

"That thereafter, on the 19th day of March, 1889, 'upon the recommendation of Captain Samuel J. Boyd, emergency special John N. Chapman, 3d district, was promoted to the rank of patrolman to take effect April 1, 1889.' That thereafter, on January 5, 1892, 'on motion and at his own request, patrolman John N. Chapman, 6th district, was reduced to the rank of turnkey, to take effect January 5th, 1892.' That thereafter, on June 15, 1893, 'on motion of Mr. Small, turnkey John N. Chapman, 6th district, was promoted to the rank of patrolman, to take effect July 1, 1893,' where he continued to serve until October 22, 1895. That on October 22, 1895, 'it was moved that the minutes of the last meeting be corrected as follows: That George H. Chappell, of the 6th district, be reinstated as patrolman, and that John N. Chapman, whose term of service has expired, be not reappointed and that he be dropped from the rolls to correct a clerical error.'

"It is further agreed that since the 1st day of July, 1893, the regular pay of patrolman has been $ 83.33 1-3 per month, and that this is the compensation relator was receiving on and prior to October 22, 1895, which was paid him by the treasurer of the city of St. Louis on warrant, duly signed by the president and secretary of the Board of Police Commissioners, which offices are now held respectively by Cyrus P. Walbridge president, and Wm. O. Keeble secretary."

The law governing the case is found in article 29 of the city charter, 2 Revised Statutes, 1889, pp. 2192, et seq. By section 6 of the Act, authorizing the board of Police commissioners "to appoint, enroll and employ a permanent police for the city of St. Louis," after providing the number of "policemen . . . exclusive of officers" that shall be employed at the first organization, and that no person shall be appointed or employed as "policeman or officer of police" who shall have been convicted of an infamous crime, etc., it is further provided that "the policemen shall be employed to serve four years, and be subject to removal only for cause, after a hearing by the board, who are hereby invested with exclusive jurisdiction in the premises. Any policeman whose term of service shall expire, and who, during his appointment, shall have faithfully performed his duty, shall, if otherwise qualified, be preferred by the board in making their new appointments" and by section 7 it is provided that "the officers of police shall be as follows: One chief of police, who shall give bond, with security, in the penal sum of twenty thousand dollars for the faithful performance of his duties; three captains, three lieutenants, not exceeding twelve sergeants, and four turnkeys; they shall be appointed by the board for such time as the board shall determine, and be subject to removal by the board for cause."

Section 8 provides "each captain shall receive one hundred dollars per month; each lieutenant, eighty-five dollars per month; . . . . each ordinary policeman and detective seventy-five dollars per month, and each turnkey fifty dollars per month, payable monthly." Section 11 provides that vacancies in any grade of officers except that of chief, shall be filled from the next lowest grade, if competent men can be found therein, authorizes the board to make all necessary rules and regulations not inconsistent with this act for the appointment, employment, uniforming, discipline, trial and government of the police force, and the relief and compensation of members of the police force injured in the discharge of their duty, and "the families of the officers or men killed while in discharge of duty" not to exceed twelve months' pay, and that the board shall have power to require "of any officer or policeman bond with sureties," etc.

Section 12 provides that, "no officer of police or policeman shall be allowed to receive any money, or gratuity, or compensation for any service he may render, without the consent of said board; and all such moneys as any policeman or police officer may be so permitted to receive shall be paid over to the board," etc.

(1.) It is manifest from the foregoing provisions of the law, that the police force of the city is thereby divided into two separate, distinct and well defined classes, viz policemen and police officers, each class well differentiated from the other. [...