Gracey v. City of St. Louis

• Decision Date: 03 July 1908
• Parties: GRACEY v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

111 S.W. 1159

213 Mo. 384

GRACEY v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

July 3, 1908.

1. COURTS — APPELLATE JURISDICTION — MISSOURI SUPREME COURT — "POLITICAL SUBDIVISION OF STATE" AS PARTY.

Under Const. art. 6, § 12 (Ann. St. 1906, p. 218), giving the Supreme Court jurisdiction

"in cases where a county or other political subdivision of the state is a party," the court has jurisdiction, in a case in which the city of St. Louis is a party, that city being, by virtue of Const. art. 9, §§ 20, 22, 23 (Ann. St. 1906, pp. 267-270), providing for its charter, a political subdivision of the state, and not merely a city within a county.

2. MUNICIPAL CORPORATIONS — "OFFICERS" — INSPECTORS OF BOILERS AND ELEVATORS— "EMPLOY."

Deputy inspectors of boilers and elevators, provided for by the charter of the city of St. Louis, perform public functions. They have a fixed tenure of office of four years, and are required to give bond. Their salaries are fixed at a certain sum per year. Their qualifications are prescribed by law. Their public position is expressly denominated as an office, and their duties as official duties. The charter defines officers as those holding situations under the city government or its departments with an annual salary or for a fixed definite term of office, and the forms of official oath and bond prescribed refer to their positions as officers. Held, that they are officers, although McQuillin's Municipal Code of St. Louis, § 2197, authorizes the inspectors of boilers and elevators to "employ" deputies; the word "employ" conveying the idea of selecting and intrusting with a duty (citing Words and Phrases, vol. 6, p. 4923).

See, also, Words and Phrases, vol. 3, pp. 2369-2377; vol. 8, p. 7649.

3. SAME—REMOVAL.

A deputy inspector of boilers and elevators in the city of St. Louis, being an officer, cannot be removed during his term, except for cause and on due charges and hearing, after notice, and an attempted removal without such charges and proceedings does not deprive him of his right to salary for the balance of his term.

4. SAME.

Where a deputy inspector of boilers and elevators was illegally removed, his failure to bring mandamus, or to sue his successor for his salary, or to bring quo warranto to test the right of his successor to office, did not constitute abandonment of the office, so as to prevent recovery of salary for the balance of the term.

5. SAME—TERM OF OFFICE.

Under McQuillin's Municipal Code of St. Louis, § 2199, providing that an inspector of boilers and elevators and his deputies and clerk shall hold office for the term of four years and until their successors are duly appointed and qualified, a deputy inspector was entitled to serve such entire term of four years, although his written appointment omitted defining his official term, and his bond recited a shorter term.

6. COMPROMISE AND SETTLEMENT — REQUISITES.

Where an officer of a city was illegally removed without proceedings therefor, and a successor appointed, his acceptance of salary due up to the time of the attempted removal did not constitute a final settlement.

7. MUNICIPAL CORPORATIONS — OFFICERS — DEPUTY BOILER AND ELEVATOR INSPECTOR — INCOMPATIBLE EMPLOYMENT.

Where a deputy inspector of boilers and elevators in the city of St. Louis was illegally removed, his acceptance of a temporary position as a hoisting engineer was not incompatible with his duties as such deputy inspector, and did not prevent his recovery of salary for the balance of his official term.

8. APPEAL AND ERROR — REVERSAL — DIRECTIONS TO LOWER COURT.

Where a case was pending before a jury at the time of nonsuit, from which appeal was taken, it is better practice to reverse and remand with directions to set aside the nonsuit and to proceed with the cause, although on the record plaintiff would be entitled to a peremptory instruction.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action by James G. Gracey against the city of St. Louis. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

James R. Van Slyke, for appellant. Chas. W. Bates and Benj. H. Charles, for respondent.

LAMM, J.

On the 18th of February, 1905, plaintiff sued for $483.33, for his unpaid official salary from June 9, 1903, to November 4th of that year, with interest from the last date, as deputy inspector of boilers and elevators in the city of St. Louis under due appointment. The theory of his petition is that, by virtue of his appointment under the charter and ordinances of said city, he was an officer for a term of four years from date of appointment, November 4, 1899, at an annual salary of $1,200; that on the 9th day of June, 1903, without cause and unlawfully, he was dismissed, or discharged, in the sense that he was denied his right to perform his official duties and refused his salary for the remainder of his term. At the close of the evidence, the trial court gave defendant a peremptory instruction. Thereupon plaintiff took a nonsuit with leave. His timely motion to set it aside was denied. Thereupon he brings the case here because the Supreme Court has jurisdiction "in cases where a county or other political subdivision of the state is a party," etc. (section 12, art. 6, Const. [Ann. St. 1906, p. 218]); it having been uniformly held that in a constitutional sense a city within a county is not a "political subdivision of the state," but that the city of St. Louis, by virtue of sections 20, 22, and 23 of article 9 of the Constitution (Ann. St. 1906, pp. 267-270), was such political subdivision. Kansas City v. Neal, 122 Mo. 232, 26 S. W. 695.

The pleadings may be passed, with the general remark that they were broad enough in averment to admit evidence on all points raised here. The tendency of the material oral testimony, and those provisions of the charter and ordinances of the city of St. Louis vital to the controversy, will sufficiently appear in connection with the determination of questions made by counsel pro and con.

1. Was plaintiff an officer? It is insisted he was an officer of the city of St. Louis, subject only to removal for cause during his term; contra, by defendant, that plaintiff was a mere employé subject to removal at pleasure. The question lies at the door, and is of the very essence, of the controversy. Oral testimony and official records and documents were put in evidence on the point, but the following admissions of the answer will take the place of some of it, viz.: "Defendant * * * admits that the plaintiff was appointed a deputy inspector of boilers and elevators on or about the 1st day of November, 1899, by William J. Castanie, who was then inspector of boilers and elevators in and for the defendant city, by and with the consent of the mayor of the said city, and that on or about the 4th day of November, 1899, the plaintiff qualified by giving a bond in the penal sum of $5,000, and that he entered upon the performance of his duties as such deputy inspector and continued to perform the same up to and including the 12th day of June, 1903." Plaintiff's written appointment was silent on his term. It was directed to the mayor and in general terms appointed him deputy elevator inspector and bears the mayor's approval. In the "official oath book" of defendant city appears plaintiff's oath, narrating that he was appointed "to the office of elevator inspector of the city of St. Louis," and that he possessed "all of the qualifications prescribed for said office" and would support the Constitution of the United States, of Missouri, the charter and ordinances of the city, and would faithfully demean himself "in said office." It was shown that his bond was approved by the mayor and the city council, and certified by the city counsellor to be in due form. The following clause of it is pertinent to the question now up: "Now, if the said James G. Gracey shall faithfully, skillfully and impartially perform all the duties of his said office and shall fully account for and pay into the city treasury all moneys received by him as said deputy inspector of boilers and elevators, then this obligation to be void; otherwise to remain in force."

Plaintiff put in and relies on the following charter and ordinance provisions:

Section 43, art. 4, Charter of St. Louis (Ann. St. 1906, p. 4833):

"Sec. 43. Oath of City Officers—Bond of Same.—Every officer of the city and his assistants, before entering upon the duties of his office, shall take and subscribe to an oath or affirmation before some judge or justice of the peace or the register, that he possesses all the qualifications prescribed for his office by the charter; that he will support the Constitution of the United States and of the state of Missouri, and the charter and ordinances of the city of St. Louis, and that he will faithfully demean himself in office; and every officer of the corporation, when so required by law or ordinance, shall, within fifteen days after his election or appointment, and before entering upon the discharge of the duties of his office, give bond to the city in such sum as shall be designated by ordinance, conditioned for the faithful performance of his duties, and that he will pay over all moneys that belong to the city as provided by law. If any person elected or appointed to an office shall fail to take and subscribe such oath or affirmation, or give bond as herein required, his office shall be deemed vacant. For any breach of the condition of said bond, suit may be instituted thereon by the city or by any person in the name of the city of St. Louis, for the use of such person or persons.

"Officers Defined.—The term `officers,' whenever used in this charter, shall include all persons holding any situation under the city government or its departments, with an annual salary or for a definite term of office; and the term `fiscal officers,' whenever used shall include all persons engaged in any relation in the...