Manker v. Faulhaber

• Decision Date: 19 December 1887
• Citation: 94 Mo. 430,6 S.W. 372
• Parties: MANKER v. FAULHABER et al.
• Court: Missouri Supreme Court

6 S.W. 372

94 Mo. 430

MANKER v. FAULHABER et al.

Supreme Court of Missouri.

December 19, 1887.

1. OFFICE AND OFFICER — REMOVAL — STATUTES — REPEAL.

Act Mo. March 18, 1873, as amended by an act of 1875, revising the charter of the city of Sedalia, section 9 of which provides that the mayor shall have power, with

the consent of the board of aldermen, to remove from office any person holding office, created by charter or ordinance, for cause, is not repealed by an act of April 23, 1877, entitled "An act to remove from office or employment persons who fail to personally devote their time to the performance of their duties, or who are guilty of willful, corrupt, or fraudulent violation or neglect of duty."

2. SAME — REPEAL OF STATUTE BY CONSTITUTION.

Const. Mo. 1875, provides, in Schedule, § 1, that all laws in force at the adoption of this constitution, and not inconsistent therewith, shall remain in full force until altered or repealed by the general assembly. Held, that act Mo. 1873, as amended by an act of 1875, revising the charter of the city of Sedalia, and providing for the removal of city officers by the mayor and board of alderman for cause, is not repugnant to Const. Mo. 1875, art. 2, § 18, and article 14, § 7, regarding the duties of persons holding offices of trust or profit, and the power of the general assembly to provide for their removal for violation or neglect of official duty.

3. SAME — ACTION FOR WRONGFUL REMOVAL — PLEADING.

On action for damages for wrongful ouster from office, the permission, on motion by plaintiff, to strike out an allegation in the petition as to the power of defendant mayor and aldermen to remove for cause the incumbent of an office created by charter or ordinance, held no error, as the state of facts upon which the action was based remained unaltered.

4. SAME — EVIDENCE.

On the trial of an action for damages for wrongful removal from office by the mayor and aldermen of a city, the refusal by the court to permit defendants to read in evidence in chief the provisions of the city charter giving them authority to remove for cause is erroneous.

Appeal from circuit court, Pettis county; JOHN P. STROTHER, Judge.

This action was brought to recover damages against defendants, George L. Faulhaber, mayor, and John F. Antes, Ernest Lamy, Morris Harter, William Latour, Julius Kohlborn, M. C. White, A. G. Holland, and Martin O'Riley, aldermen of the city of Sedalia, for an alleged malicious ouster of plaintiff, William J. Manker, from the office of city collector. From a judgment for plaintiff, defendants appeal.

W. S. Shirk, for appellants. Geo. P. B. Jackson, for respondent.

BRACE, J.

This is an action for damages brought against the defendants, who were the mayor and aldermen of the city of Sedalia, for maliciously removing the plaintiff from the office of city collector of said city in the month of November, 1878. The answer admitted the removal of plaintiff from said office by the said defendant, George L. Faulhaber, mayor, by and with the consent of the other defendants, aldermen of said city; denied all malice; averred that such removal was for cause, after due trial, and justified their action; the authority to them granted under the provisions of an act of the general assembly of the state of Missouri, entitled "An act to revise the charter of the city of Sedalia, in Pettis county," approved March 18, 1873, and an act amendatory thereof, approved March 12, 1875; and contained a further plea of former recovery for the same cause of action. Under the instruction given by the court, the jury returned a verdict for plaintiff for $2,900. After an unsuccessful effort for new trial, and to arrest the judgment, defendants bring this case here by appeal, assigning for error that the circuit court improperly permitted plaintiff to amend his petition by striking out a clause therein; admitted illegal evidence; excluded legal and proper evidence; refused proper, and gave improper, instructions; and complain that the damages assessed are excessive.

The petition contained this averment: "That, by the charter of said city of Sedalia, the said Faulhaber, as mayor, had power, with the consent of the other defendants, as said board of aldermen, to remove from office any person holding office created by charter or ordinance for cause." On motion of plaintiff, he was permitted to strike out this averment from his petition. Under our system of pleading, plaintiff's cause of action, if any he had, grew out of the statement of facts contained in his petition, and the relief granted must be based on those facts. This allegation contained no statement of fact, — it was simply the averment of a legal conclusion; tendered no issue of fact; and striking it out in no way changed plaintiff's cause of action. It was just the same with or without that clause in the petition, and the court committed no error in permitting plaintiff to strike it out.

On the trial, the defendants offered to read in evidence, in chief, section 9 of the charter of the city of Sedalia, being section 9 of an act entitled "An act to revise the charter of the city of Sedalia, in Pettis county," approved March 18, 1873, as amended by an act approved March 12, 1875. So much of said section as applies to this case is as follows: "The mayor * * * shall have power, with the consent of the board of aldermen, to remove from office any person holding office created by charter or ordinance for cause, and, on application of three-fourths of the board of aldermen, he shall be compelled to remove any officer created by ordinance." The court refused to permit it to be read, and instructed the jury "that under the constitution and laws of Missouri, as they existed in November, 1878, the mayor and board of aldermen of the city of Sedalia had no legal right or authority to remove the plaintiff from the office of city collector of the city of Sedalia."

This action of the court presents the vital question to be determined on this appeal. If the aforesaid act was not in force giving the mayor and board of aldermen such power, it was because it had been repealed by some act passed prior to November, 1878, and after the twelfth of March, 1875; and counsel for plaintiff contend that it was so repealed by an act approved April 23, 1877, entitled "An act to provide for the removal from office or employment persons who shall fail to personally devote their time to the performance of their official duties, or be guilty of any willful, corrupt, or fraudulent violation or neglect of official duty," regarded in the light of the constitutional provisions contained in article 2, § 18, and article 14, § 7, Const. 1875.

Section 18, supra, provides "that no person elected or appointed to any office or employment of trust or profit under the laws of this state, or any ordinance of any municipality in this state, shall hold such office without personally devoting his time to the performance of the duties to the same belonging; and section 7, supra, that "the general assembly shall, in...