Civic League v. City of St. Louis

• Decision Date: 16 July 1920
• Docket Number: No. 20470.,20470.
• Citation: 223 S.W. 891
• Parties: CIVIC LEAGUE OF S. LOUIS v. CITY OF ST. LOUIS et al.
• Court: Missouri Supreme Court

223 S.W. 891

CIVIC LEAGUE OF S. LOUIS v. CITY OF ST. LOUIS et al.

No. 20470.

Supreme Court of Missouri, Division No. 2.

July 16, 1920.

Appeal from St. Louis Circuit Court; Vital W. Garesche, Judge.

Proceeding by the Civic League of St. Louis, Mo., to enjoin the City of St. Louis and others from paying out of the treasury to Henry L. Weeke a certain amount as salary. Judgment for defendants, and plaintiff appeals. Affirmed.

This is an injunction proceeding, commenced by plaintiff in the circuit court of the city of St. Louis, Mo., on September 15, 1916, to enjoin the city of St. Louis aforesaid and its fiscal officers from paying out of the treasury of said city to defendant Henry L. Weeke the sum of $150 per month as salary, who at the time was holding the position of superintendent of excavations in said city. It is claimed by appellant that said Weeke was Illegally holding the office aforesaid, and by reason thereof was not entitled to said salary, etc.

The case was tried on plaintiff's first amended petition. The latter avers, and the answer thereto admits, that plaintiff is a corporation organized under the laws of Missouri, with its office and place of business in said city; that it is a resident and taxpayer of said city. Said petition alleges, and said answer admits, that the city of St. Louis, Mo., Is a municipal corporation and existing as such under the laws of Missouri; that Henry C. Menne is the treasurer of said city, John Sheehan the auditor thereof, and James Y. Player the comptroller of said city. All other allegations of said petition are denied in the answer aforesaid.

Said petition further avers that on August 29, 1914, the present charter of said city became effective; that article 18 of same provided for an efficiency board, whose duty it was, among other things, to conduct and hold examinations and tests as to the relative fitness and qualifications of all applicants for positions in the classified service of said city, and to certify to the several appointing authorities of said city, for their use in making appointments in said service, eligible lists containing the name or names of successful applicants therefor, who had passed said tests and examinations, and who were fit and qualified to hold and fill said positions; that by the terms of said charter it was the duty of those making said appointments to select persons for said positions from the names certified by said efficiency board; that paragraph 4 of rule 4, adopted by said efficiency board, provides that:

"All subjects shall be rated on a basis of 100. At least a percentage of 70 shall be required of a candidate to pass and have his name placed on the eligible register for certification to appointing officers."

It is further alleged that defendant Weeke had been holding said position from August 27, 1915, to date of trial, February 19, 1917; that his temporary appointment was in contravention of the city charter because, first, it had existed more than 60 days; second, that he was appointed to secure his political support, because he was a Republican, and had great political influence and power in said city, and not on account of his ability or fitness; and, third, that on August 3, 1916, an examination had been held by the efficiency board to get an eligible list from which appointment to this office could be made; and that on August 8, 1916, as a result of this examination, an eligible list had been prepared and forwarded to the street commissioner (the appointing officer), which eligible list contained the name of William J. McKenzie, who was the only successful applicant passing the examination, but that the street commissioner refused to appoint McKenzie, and retained defendant Weeke.

The answer in substance contains the following allegations: First, that plaintiff had not complied with the law in making its tax return, and as a result had been assessed by the district assessor and its tax doubled as a penalty; second, that plaintiff had suffered no irreparable injury because of the fact, that its taxes will not be increased, and that it does not pay any substantial amount of taxes; third, that plaintiff has an adequate remedy at law by quo warranto; fourth, that the relief prayed for would substitute the discretion of the court for that of the street commissioner, and would be in violation of article 3 of the Constitution of Missouri; fifth, that under the provisions of section 4, article 18, of the city charter, the efficiency hoard had authority to make rules, and that pursuant to said authority the efficiency board had adopted a rule, known as rule 9, which authorized appointments to be made in the temporary class, where there are less than three names on the eligible list, and also rule 5, providing that an eligible list shall stand until the number of names has been reduced to less than three; sixth, that during the time defendant Weeke had the position as superintendent of excavations he was holding it temporarily only, until a proper eligible list had been certified to the street commissioner by the efficiency board, and that during the time he held this position no proper eligible list was ever certified to the street commissioner, and by reason of such fact defendant Weeke was holding this position in accordance and in compliance with the charter and laws; seventh, that defendant Weeke was not appointed to his position because of his political affiliation, but because the street commissioner believed, by reason of his experience with men and previous experience in the street department, he was qualified to fill the position; that the disbursements and receipts of his office showed that he was satisfactorily filling the position.

The reply is a general denial. We will consider the evidence and rulings of the court, as far as necessary, in the opinion. On February 19, 1917, the trial court found the issues in favor of respondents. Plaintiff filed its motion for a new trial, which was overruled, and the cause duly appealed to this court.

Elmer E. Pearcy, of St. Louis, for appellant.

Charles H. Daues and Everett Paul Griffin, both of St. Louis, for respondents.

RAILEY, C. (after stating the facts as above).

1. Respondents herein have filed in this court a motion to dismiss plaintiff's appeal, on the ground that defendant Weeke ceased to hold the position of superintendent of excavations in said city of St. Louis, on April 30, 1917, and has not been connected with said city in any capacity since October 23, 1918. On April 4, 1917, the circuit court entered a final judgment in this cause, dismissing plaintiff's bill, taxing it with all of the costs incurred in the case, etc. If plaintiff had a meritorious cause of action when brought, in which the public was equally interested, we are not favorably impressed with the idea that defendant Weeke, after a judgment has been entered in his behalf against plaintiff on the merits and for costs, can by withdrawing from the office held by him cut off the right of plaintiff and the public to have said proceedings reviewed by this court on appeal. Stegmann v. Weeke, 214 S. W. 134; Long v. Kaufman Co., 129 La. 430, 56 South. 357; Froemke et al. v. Parker et al. (N. D.) 169 N. W. 80; Peters v. Fisher, 50 Mich. 331, 15 N. W. 496; So. Pac. Co. v. Interstate Commerce Commission, 219 U. S. 433, 31 Sup. Ct. 288, 55 L. Ed. 283; So. Pac Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498, 31 Sup. Ct. 279, 55 L. Ed. 310; People v. General Committee of Republican Party, etc., 25 App. Div. 339, 49 N. Y. Supp. 723; Russell v. Crook County Court, 75 Or. 168, 145 Pac. 653, 146 Pac. 806. The motion to dismiss is accordingly overruled.

2. It is contended by respondents that plaintiff is not entitled to maintain this action, because it did not establish by evidence at the trial that it had sustained any damages by reason of the alleged illegal expenditure of public moneys paid to defendant Weeke on account of salary to which he was not entitled. It is conceded that plaintiff is a Missouri corporation and that it is a resident taxpayer of St. Louis, Mo. The petition discloses on its face that the suit is brought for the benefit of plaintiff and all other taxpayers of said city, who might desire to join in said action. Assuming for the present that injunction will lie in a case of this character, and that the merits of the controversy would warrant the issuing of same, had a number of taxpayers joined as plaintiffs in the prosecution thereof, it is insisted by respondents that a right of recovery should be denied appellant, upon the ground that it did not prove at the trial below it had sustained any damages on account of the matters complained of in petition. We are of the opinion that, where public interests are involved, and public funds are about to be dissipated for an illegal purpose, a single taxpayer may maintain an action for itself, and all other taxpayers in said city, to restrain the illegal acts complained of, if injunction will lie, without being required to show, at the trial, the extent of the damages which it may sustain, should the injunction...