Magner v. City of St. Louis

• Decision Date: 10 February 1904
• Parties: MAGNER v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

78 S.W. 782

179 Mo. 495

MAGNER v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

February 10, 1904.

CITY OFFICERS—REMOVING ASSISTANTS.

1. A city ordinance creating the office of commissioner of public buildings, defining his duties, which relate only to public building, authorizing appointment by him of janitors, watchmen, engineers, and firemen, and providing that all janitors, engineers, or other persons appointed by him may be removed by him and the president of the board of public improvement when the interests of the city require it, does not give power to remove inspectors, whom a later ordinance, imposing on such commissioner the duty of inspecting private buildings in the course of construction, empowered him to appoint to aid him in the performance of his new duties.

2. Though, at the time one is appointed inspector to assist the commissioner of public building in the duty of inspecting private buildings in the course of construction, an ordinance is in force prescribing a yearly salary and a term of four years for inspectors, so that he is within St. Louis City Charter, art. 4, § 43, defining the term "officers" to include all persons holding any city situation with an annual salary or for a definite term, he ceases to be an officer, as regards mode of removal, on the repeal of such ordinance and the substitution of another giving such inspector only a monthly salary and no definite term.

3. Under St. Louis City Charter, art. 4, § 14, providing that assistants of any officer shall hold their positions during good behavior, unless otherwise provided by ordinance, but may be removed for cause by the mayor, or by the officer under whom they work, at his pleasure, an officer may remove his assistant without any assignment of cause or without consultation with any one.

Appeal from St. Louis Circuit Court; Jno. A. Talty, Judge.

Action by John Magner against the city of St. Louis. Judgment for defendant. Plaintiff appeals. Affirmed.

Leverett Bell, for appellant. Chas. W. Bates and Benj. H. Charles, for respondent.

VALLIANT, J.

Plaintiff sues to recover a sum which he claims was due him for salary as inspector in the department of public buildings in the city of St. Louis, from which position, he avers, he was unlawfully excluded. His appointment was in writing, as follows:

                              "St. Louis, October 30, 1899
                

"Hon. Henry Ziegenhein, Mayor, St. Louis —Dear Sir:

I have the honor to submit herewith for your approval the following appointment in accordance with the provisions of Ordinance No. 18,964, John Magner for inspector in the Department of Public Buildings.

                      "Respectfully, C. F. Longfellow
                        "Commissioner of Public Buildings
                  "Approved: Henry Ziegenhein, Mayor."
                

The order for his removal was also in writing, as follows:

                                     "October 31, 1900
                

"Mr. John Magner, City—Dear Sir: You are hereby notified that your services as inspector of buildings will not be required by the city of St. Louis after October 31, 1900, and the undersigned being of the opinion that the interests of the city require it, does hereby, under the provisions of section 12 of the Municipal Code of St. Louis, remove you from your said employment and duties of inspector, said removal to take effect at the time aforesaid.

                      "Respectfully, L. C. F. Stemme
                    "Deputy Commissioner Public Buildings.
                  "Approved: Robert E. McMath, President."
                

The plaintiff's proposition is that he was a city officer, and subject to be removed only on charge and specification, trial, and conviction.

The following are the provisions of the city charter which are referred to by the counsel on either side as bearing on the plaintiff's proposition:

Section 5, art. 4: "Any elected city officer may be suspended by the mayor and removed by the council for cause; and any appointed officer may be removed by the mayor or council for cause. In either case the mayor shall, temporarily fill the vacancy except as hereinafter provided."

Section 43, art. 4, after requiring all city officers, before entering on their duties, to take the oath of office and give the bond therein specified, declares: "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."

Section 14, art. 4: "The assistants of any officer shall hold their position during good behavior, unless otherwise provided by ordinance, but may be removed for cause by the mayor, or by the officer under whom they work, at his pleasure."

Section 45, art. 4: "The assembly shall have power by ordinance passed by a vote of two-thirds of the members elect of each house, to create any other office which it may deem necessary, and to provide for the manner of filling the same."

Section 28, art. 4: "The municipal assembly shall, by ordinance define the duties of all city officers, and may change, increase or diminish them in a manner not inconsistent with this charter."

Section 26, art. 3, confers on the mayor and assembly power, by ordinance not inconsistent with the Constitution and laws of the state or of the charter, "to regulate and provide for the election or appointment of city officers required by this charter, or authorized by ordinance and provide for their suspension or removal; and they shall establish the salaries of all officers and the compensation of all employés, excepting day laborers and jurors and witnesses, respectively for their services: provided that the salary of no officer shall be changed during the term for which he is elected or appointed and that no officer receiving a salary shall receive any fees or other compensation for his services."

Section 32, art. 3, confers on the assembly the power to transfer in whole or in part the duties appertaining to any office to another office.

The following are the provisions of the city ordinances that bear on the case:

The office of commissioner of public buildings was created by Ordinance 10,371, approved September 23, 1877. By that ordinance the commissioner is denominated an "officer," to receive a salary of $1,800 a year, and to hold his office for a term of four years. His duties as therein specified relate only to the public buildings of the city. The only appointments he is authorized by that ordinance to make are of janitors, watchmen, engineers, and firemen. Section 7 of that ordinance is as follows: "All appointments of janitors, engineers, or other persons by the commissioner of public buildings shall be subjected to the approval of the president of the board of public improvements, and may be removed by the mayor for cause, or by the commissioner and president of the board of public improvements whenever the interests of the city require it." That is now section 12 of the Municipal Code.

In 1892, the duties which theretofore, under section 5, art. 11, of the charter, had devolved on the chief of the fire department "to inspect all buildings in the course of construction and to cause to be carried into effect all ordinances relating thereto," were transferred to the commissioner of public buildings by Ordinance 17,188, and by that ordinance authority to appoint inspectors was conferred on the commissioner: "There shall be five inspectors of buildings appointed by the commissioner of public buildings, to be approved by the mayor, who...