Barnes v. City of Kirksville

• Decision Date: 17 November 1915
• Docket Number: No. 18721.,18721.
• Citation: 266 Mo. 270,180 S.W. 545
• Parties: BARNES v. CITY OF KIRKSVILLE.
• Court: Missouri Supreme Court

180 S.W. 545

266 Mo. 270

BARNES v. CITY OF KIRKSVILLE.

No. 18721.

Supreme Court of Missouri.

November 17, 1915.

Rehearing Denied December 8, 1915.

In Banc. Appeal from Circuit Court, Adair County; Charles D. Stewart, Judge.

Suit by C. W. Barnes against the City of Kirksville. Judgment for defendant, and plaintiff appeals. Affirmed.

A. Doneghy, of Kirksville, for appellant. Weatherby & Frank, of Kirksville, for respondent.

BOND, J.

This is a suit for salary alleged to be due plaintiff as marshal of the city of Kirksville. The defendant, the city of Kirksville, answered that on the 10th of March, 1914, at an election duly held, it adopted the provisions of the act of the General Assembly (Laws of 1913, p. 517) permitting cities of the third class and others to organize thereunder and to exercise the powers of government therein specified; that it became duly organized and officered as provided in said act, and vested with all the powers and privileges granted thereby; that in the exercise of such powers and duties its mayor and councilmen passed a resolution on April 13, 1914, terminating the office of plaintiff as marshal of said city and elected another in his place, who has since discharged the duties of the office. Plaintiff replied that said act providing for such organization was void under section 53, art. 4, of the Constitution, in that it was a local or special law, and also under section 7, art. 9, of the Constitution, in that it provided for more than four classes of cities. Upon the issues joined the cause was submitted to the court upon the following agreed statement of facts:

"For the purpose of dispensing wit a the introduction of evidence in the trial of the above cause, it is agreed, subject to the objection of either party hereto for incompetency: That the plaintiff was on the _____ day of April, 1913, duly elected and commissioned to the office of marshal for a term of two years, and entered upon the discharge of the duties of said office and discharged the duties thereof until the 13th day of April, 1914. That on the _____ day of June, 1892, said city of Kirksville was organized as a city of the third class, and divided into four wards. That said city has refused to pay plaintiff the salary of the marshal's office ever since the 13th day of April, 1914. That Ordinance No. 1862 was passed by the council and approved by the mayor prior to the election and commission of plaintiff, and was at said time in full force and effect, and provided a salary of $50 per month. That on the 10th day of March, 1914, pursuant to a petition of the electors of said city of Kirksville equal in number to more than 25 per centum of the votes cast for all candidates for mayor at the last preceding city election of said city prior to the filing of said petition, and pursuant to a proclamation calling aforesaid special election, a special election was duly had and held on said 10th day of March 1914, at which special election the terms and provisions of an act of the Forty-Seventh General Assembly of the state of Missouri, entitled `An act providing for an alternative form of government for cities of the third class and cities now having or that may hereafter hive a population entitling them to become cities of the third class, and certain cities under special charters, making provisions for the election of a mayor and four councilmen at large, * * * at a primary election for electing candidates selected at such primary election at a general election, providing for the appointment of various city officers, and providing for the initiative and referendum in municipal legislation, and further providing for the recall of any elective officer, which shall become effective only in the event of an adoption of the provisions of this act by the vote of the electors of any of sale cities, and providing for the renunciation of the provisions of this act when once adopted, with en emergency clause,' approved March 28, 1913, and found in the Session Acts of the Laws of Missouri, 1913, at pages 517 to 533, both inclusive, was by said city of Kirksville duly adopted, and said city organized under the provisions of said act. That return of said election was duly made. Thereafter, on the 7th day of April, 1914, at a general election duly had and held in said city, one Charles E. Still was elected mayor of said city, and Thomas Rainey and Rapheal M. Miller were elected councilmen at large of said city. That return of said election was duly made, and thereupon said last-named mayor and councilmen at large of said city took the oath of office and were commissioned as such officers and entered upon the discharge of the duties of their respective offices, and at all time since they have been the only persons holding or claiming to hold the office of mayor and councilmen in said city and at all said times have discharged the duties of said offices. That on the 13th day of April, 1914, aforesaid mayor and council of said city, by resolution, entitled `A resolution terminating the term of office of certain city officials in the city of Kirksville, Missouri,' passed and adopted, on the 13th day of April, 1914, and signed and approved by the mayor on said ate, declared by aforesaid resolution that the term of office of plaintiff as marshal of said city of Kirksville ceased and determined on said 13th day of April, 1914. Thereafter, and on said 13th day of April, 1914, the mayor and council aforesaid by unanimous vote of said mayor and council elected one George M. Malone to the office of city marshal. That said George M. Malone took the oath of office prescribed by statue, and was duly commissioned as marshal of mid city by the mayor of said city, and did duly file a bond as required by statute, which said bond was by the mayor of said city approved, and said George M. Malone ever since said last-named date has performed all the duties of the office of marshal of said city and has received the salary provided by ordinance therefor."

The trial court found the issues for defendant, and against the plaintiff, from which the plaintiff has appealed to this court.

I. The plaintiff (appellant) does not assail in this action the existence of defendant as a municipal corporation of the third class, since that status is conceded both by the pleadings and the agreed statement of facts. What the appellant seeks to recover by this suit is the compensation which would be due him as marshal of the city of Kirksville under its incorporation as a city of the third class according to the terms of an ordinance duly enacted by it.

To this demand the only defense is that appellant was legally removed from the office of marshal on April 13, 1914, by the mayor and council of said city, in pursuance of the powers vested in them by the terms of the act of the Legislature providing for the assumption of other governmental powers after an organization as prescribed by the act. Laws 1913, p. 517 et seq. This narrows the controversy to a single inquiry, for it is agreed that respondent complied with the conditions attached in the act to the grant of powers therein specified and thereafter duly removed the appellant...