Antoine v. McCaffery, 30258

• Decision Date: 17 May 1960
• Docket Number: No. 30258,30258
• Citation: Antoine v. McCaffery, 335 S.W.2d 474 (Mo. App. 1960)
• Parties: Louis H. ANTOINE and Daniel L. Schlafly, Plaintiffs-Appellants, v. James J. McCAFFERY, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 474

335 S.W.2d 474

Louis H. ANTOINE and Daniel L. Schlafly, Plaintiffs-Appellants, v. James J. McCAFFERY, Defendant-Respondent.

No. 30258.

St. Louis Court of Appeals, Missouri.

May 17, 1960.

Grand, Peper, Martin & Roudebush, Malcolm W. Martin, George A. Jensen, Robert O. Hetlage, St. Louis, for appellant.

Mortimer A. Rosecan, Irving M. Malnik, St. Louis, for respondent.

BRADY, Commissioner.

The appellants, members of the Board of Education of the City of St. Louis, hereinafter referred to as the Board, brought this action under Section 165.583 RSMo 1949, V.A.M.S., against respondent, President of that Board, seeking to remove him as President and member of the Board because of alleged gross misconduct and disqualification for office.

The pleadings are of importance to a proper consideration of this case. The appellants alleged that the respondent committed gross misconduct within the meaning of Section 165.583 RSMo 1949, V.A.M.S. and is disqualified within the meaning of that statute for his office as a member and President of the Board in that he: (a) caused and directed employees of the building department of the Board to perform services on property held for his son and daughter-in-law during a time when said employees should have been performing their duties as employees of the Board; (b) falsely and fraudulently caused the payment of public funds of the Board of Education to the aforesaid employees for such services, and has not made restitution thereof to the Board; and (c) caused and directed the hours worked by the employees on the house and the compensation therefor to be falsely and fraudulently shown on the records as maintenance or other repair on property belonging to the Board. After alleging that they did not have an adequate remedy at law, the appellants prayed three actions of the trial court: (a) to remove the respondent from his office as member and President of the Board because of his gross misconduct; (b) to restrain, enjoin, and prevent the respondent from causing or directing the payment of any additional moneys from the funds of the Board to the employees for the work performed by them on the house, and (c) to order the respondent to repay to the Board all sums of money paid or transferred to the employees for the services performed by them on the house. The petition included the usual allegation, asking for such other and further relief as the court may deem meet and proper, and thus invoked the broad range of equity powers of the trial court.

The respondent, by answer, denied the allegations of the petition recited above, and for further answer stated: (1) that the petition did not contain sufficient facts under the law to state a cause of action; (2) that the appellant Antoine failed to verify, by affidavit, the allegations of the petition as provided by Section 165.583, supra; (3) that the appellant Antoine had admitted in a deposition taken before a Special Commissioner appointed by the court that he did not personally investigate nor have any personal knowledge of the truth or falsity, accuracy or error of the charges in the petition, and that his filing of this action without such knowledge of the truth or accuracy of the matters contained therein was an unwarranted and unlawful use of his position as a member of the Board, and was '* * * contrary to and defeats the purpose and intent of Section 165.583 conferring jurisdiction in this Court upon the filing of a verified petition by a member of the said board;' (4) that the appellant Antoine had '* * * refused to divulge and make public his source and basis of the charges he makes in his petition herein * * *;' and that such refusal to make full disclosure of the source and basis of his charges has disqualified him and forfeited his right to further prosecute this action; and (5) that the appellant Antoine's admitted lack of knowledge of the truth and accuracy of the matter set out in the petition and his reliance on those whom he refuses to name is '* * * unlawful, frivolous and irresponsible delegation of his statutory responsibilities, rights and duties * * *.' The same allegations as to the appellant Antoine were then set out as to the appellant Schlafly.

After a lengthy trial, the trial court took the matter under advisement and on November 7, 1958, made its findings and entered its judgment for the respondent, dismissing appellants' petition at appellants' costs. The findings and judgment of the trial court are found in its memorandum opinion which is a part of the record of this case. Without setting the memorandum out in full, the trial court found: (1) that the appellants had a right to file this suit; (2) that there was no evidence '* * * by any reasonable inference, that materials of the School Board were used in making the repairs;' (3) that Board employees worked at the house; (4) that the employees were paid by the Board during the period they worked at the home of respondent's son and daughter-in-law, but that there were 'adjustments' made, and the pay the employees received was either paid by the contractors or there was an 'adjustment' in the employees' pay for the next pay week or the defendant paid some of the employees and the contractors he had hired on the house paid certain other of the employees and '* * * therefore the School Board suffered no monetary loss;' (5) that there was no evidence that respondent had any knowledge of the adjustments made on the employees' next pay week to cover reimbursement to the Board for the amount they were paid while working upon the house. The trial court's allegedly conflicting findings as to the proper burden of proof in this case will be commented upon later herein. Appellants' timely after trial motions were overruled, and they filed notice and have perfected their appeal to this court.

It is clear that this case does not involve any matters within the exclusive appellate jurisdiction of the Supreme Court as provided by Article V, Section 3 of the Constitution of Missouri, 1945, V.A.M.S., unless the jurisdiction of the Supreme Court may be invoked under the provisions of the Article above cited pertaining to '* * * the title to any office under this state * * *.' The respondent, as a member of the Board of Education of the City of St. Louis, is an officer under this state within the meaning of Article V, Section 3, supra. State ex rel. Blakemore v. Rombauer, 101 Mo. 499, 14 S.W. 726. The Supreme Court's exclusive jurisdiction based on title to office applies, however, only to those cases where the issue is whether the office holder has title to the office, and not to those cases where the issue was one of removal from office by order of court. In a removal case, as in the case at bar, there is no disputed as to the respondent having title to the office. Compare Eagleton v. Murphy, 348 Mo. 949, 156 S.W.2d 683, 138 A.L.R. 749, where the statute provided for automatic disqualification upon the commission of the offense. Under the statute in the instant case, the respondent can be removed only by order of the court. See also State ex rel. Goodnow v. Police Commissioners of Kansas City, 80 Mo.App. 206. In the case of Antoine et al. v. Fletcher, Mo.App., 307 S.W.2d 898, a case closely allied to the subject of this opinion, an action was brought by certain members of the School Board of the City of St. Louis to oust from his office the Building Commissioner of the School Board. An appeal was taken to the Supreme Court, and that court transferred the appeal to this court upon motion, stating in its order of transfer that the title to the office was not involved within the meaning of the Constitution of Missouri. The action in the Fletcher case was brought under Section 165.583 RSMo 1949, V.A.M.S. as is that in the case at bar.

Respondent's motion to dismiss the appeal on the grounds that respondent's term of office had expired, and he was not a member of the Board of Education when the case was argued, and that therefore the questions involved have become moot, was taken with the case upon submission to this court.

There are several reasons why respondent's motion to dismiss is not well taken. The foremost is that the petition, by paragraph 12(c) thereof, prayed for a decree ordering respondent to repay to the Board '* * * all sums of money paid or transferred to the aforesaid employees for the services performed by them on said house held by (respondent's) son and daughter-in-law.' Section 165.583 RSMo 1949, V.A.M.S., specifically provides for such repayment. Accordingly, on this review de novo, this issue is presented to us for decision, and therefore, there is an actual controversy between the parties, the decision of which would have a practical effect, and of which the fact that respondent is not now in office would not be decisive. Furthermore, appellants contend that respondent has never claimed there was any repayment or reimbursement for the sums of money that might be characterized as 'overhead,' such as the time office personnel spent in making out time records on jobs allegedly never done, but on which the men working at the house were supposed to be working, or in making adjustments in those records, or for the foreman who is alleged to have supervised the work, or the loss that might have occurred from failure to do the work stated on the time sheets to cover the men's time at this house. We believe these items can fairly be said to come within the provisions of Section 165.583, supra, authorizing the court to order repayment of '* * * all sums of money * * * lost or wasted * * *' and within the allegations of the petition. It follows that this record should be examined to determine if there were in fact any such losses, and the cause, for this additional reason, cannot be said to be moot.

Another reason the motion to dismiss should be denied is that there is a matter of great public interest present in this appeal. As this case now...