Gregory v. Kansas City
| Decision Date | 02 July 1912 |
| Citation | 149 S.W. 466 |
| Parties | GREGORY et al. v. KANSAS CITY et al. |
| Court | Missouri Supreme Court |
Kansas City Rev. Ord. 1898, § 1176, restricting the removal of city employes, is repealed by the civil service provisions of the new Kansas City charter of 1908 containing similar restrictions, not only under the rule that a statute is impliedly repealed by a subsequent one revising the whole subject-matter, but also because it conflicts with the new charter by providing for a reinstatement of discharged employes, which provision is not in the new charter.
6. OFFICERS (§ 11)—CIVIL SERVICE. Competitive examinations are the prime element of all real civil service laws.
7. CONSTITUTIONAL LAW (§102)—VESTED RIGHTS—EMPLOYÉS—RIGHT TO POSITIONS.
Clerks of the water department of Kansas City, appointed and retained under an ordinance providing that they should be removed only for cause, acquired no vested right in their positions which could prevent the voters of the city from vacating their positions by the adoption of a new charter.
8. CONSTITUTIONAL LAW (§ 63)—MUNICIPAL CORPORATIONS (§ 82:)—CIVIL SERVICE—CONSTITUTIONAL LAW.
The power granted to civil service commissioners of Kansas City to promulgate rules for classified competitive civil service examinations does not confer upon the commissioners legislative powers, and is not violative of Const. art. 9 § 17, providing that cities adopting special charters must have "two houses of legislation."
9. MUNICIPAL CORPORATIONS (§ 122)—ORDINANCE—PRESUMPTIONS—REPEAL.
The voters of a city will not be presumed to have intended to repeal an ordinance by electing men unfriendly to its enforcement.
10. CONSTITUTIONAL LAW (§§ 70, 77)—LEGISLATIVE POWER—EMPLOYÉS—CIVIL SERVICE.
Neither the Supreme Court nor the executive officers of Kansas City have any right to determine that a charter provision, placing appointees upon a competitive civil service basis, is unwise or impracticable.
In Banc. Appeal from Circuit Court, Jackson County; J. H. Shover, Judge.
Action by Robert L. Gregory and others against Kansas City and others. From a judgment for plaintiffs, defendants appeal. Reversed, and petition for injunction dismissed.
John G. Park, A. F. Smith, A. F. Evans, Haff, Meservey, German & Michaels, and Elijah Robinson, for appellants. C. B. Leavel, L. H. Waters, and Oscar Hochland, for respondents.
The general object of this action is to determine the constitutionality and legal effect of article 15 of the charter of Kansas City, Mo., adopted by the voters of that city in the year 1908, which article purports to place the appointment, tenure of office, and removal of certain appointees of that city under a system of competitive civil service. Plaintiffs had judgment below, from which all of the defendants appeal.
On March 1, 1912, the appeals in this case and the case of Folk et al. v. Kansas City et al., 149 S. W. 473, No. 16,925, were advanced and set for hearing at our April term, and were heard orally and submitted for our determination on April 13, 1912. The issues in the case of Folk et al. v. Kansas City et al. involve a construction of the same municipal laws as the case at bar, and were tried below and upon appeal as one action. These appeals were advanced and heard upon joint suggestions of appellants and respondents, in which said joint suggestions it was urged that said appeals involved matters of great public interest to the people of Kansas City. On May 11, 1912, on motion of the attorneys for respondents and the attorney for part of the appellants, the submissions in both cases were set aside, and the appeals dismissed. On May 21, 1912, L. M. Luth and certain other appellants, who did not consent to the dismissal of their appeals in this case, moved this court to set aside its order of dismissal and reinstate the appeal and submission. While resisting the reinstatement of the appeal and submission in this case, the respondents demand that, if the appeal in this case be reinstated, then the appeal in the case of Folk et al. v. Kansas City et al. shall likewise be reinstated.
In their suggestions in opposition to the reinstatement of the appeal in this case, respondents urge that appellants Luth et al. have not perfected their appeal by filing certified copy of judgment and order granting appeal; and that they have failed to pay the docket fee in this court, and have failed to file abstract of the record and appeal bond, as required by law. Upon a consideration of these suggestions, we find that the copy of the order granting the appeals in this case embraces the separate appeal granted to defendants Luth et al., as well as the appeal granted to other defendants. The record does not show by whom the docket fee was paid ; nor do we deem it a matter of importance by whom such fee was paid. When several defendants appeal from the same judgment (as in this case), neither the law nor the rules of this court require each appellant to pay a separate docket fee, file a separate bill of exceptions or a separate abstract of the record. When, as in this case, the bill of exceptions and abstract filed are acceptable to all appellants, and are not objected to by respondents before the appeal , is submitted, there is no reason why one appellant may not rely upon such bill of exceptions and abstract to sustain his appeal, after other appellants have abandoned the same. To require a separate bill of exceptions or separate abstract of the record or separate docket fee from every defendant who appeals separately or jointly with other losing defendants would cast upon this court the, duty of examining duplicate records, and also place upon the appellants needless expense. Therefore we will not require such vain and useless things to be done. These views find support in the case of Badger Lumber Company v. Stepp et al., 157 Mo. 366, loc. cit. 377, 57 S. W. 1059.
It is true that appellants Luth et al. have filed no appeal bond; but such bond is not a necessary prerequisite to the right of appeal. Sections 2040, 2041, and 2042, R. S. 1909. N. Y., etc., v. Thurmond, 186 Mo. 410, loc. cit. 428, 85 S. W. 333.
Respondents also seek to dismiss this action. There seems to be no statute specifically defining when the plaintiff, who has been successful in a trial court, may dismiss his action. By section 1980, R. S. 1909, the plaintiff may dismiss his suit in the trial court at any time before it is finally submitted, but not afterwards. Evidently the same reasons which prompted the enactment of said section 1980, which denies to a plaintiff the right to dismiss his action after he has forced the defendant to go through the whole expense of a trial, apply with greater force to a successful plaintiff, who after an appeal to, this court, has forced the defendants to print briefs and send attorneys here to prosecute their appeal.
All parties interested in this action having joined in inducing us to put aside other important work to advance and hear these appeals, and it appearing that the issues tendered affect the validity of important laws of one of the chief cities of our state, and both cases having been carefully briefed and argued by eminent counsel, and it further appearing that if this action and said appeals be dismissed, as now urged by respondents, the same issues may soon be brought before us in another form, we deem it unwise to allow the appeals and submissions in this case and in the Folk Case to be dismissed. We will therefore reinstate said appeals and submissions, and proceed to examine and determine the same on their merits.
The Revised Ordinances of Kansas City of the year 1898, placed the employes of the waterworks department in said city under the supervision of the board of public works. That board, prior to the year 1908, appointed as employes in said waterworks department P. C. Folk, chief clerk, John F. Anderson, superintendent for meter division, A. G. Slaughter, off and on clerk, H. E. Behan, permit clerk, superintendent's department, Robert F. Shreve, clerk to auditor, who, for convenience, will hereafter be designated in this opinion as "the old employes."
By the adoption of the new charter of Kansas City in 1908, the management of the municipal waterworks owned by said city passed under control of a board, designated as the "Board of Fire and Water Commissioners," but it is contended by the respondents that the old employes (P. C. Folk et...
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