Riley v. Holland

• Decision Date: 12 November 1951
• Docket Number: No. 1,No. 42397,42397,1
• Citation: Riley v. Holland, 243 S.W.2d 79, 362 Mo. 682 (Mo. 1951)
• Parties: RILEY v. HOLLAND et al
• Court: Missouri Supreme Court

Page 79

243 S.W.2d 79

362 Mo. 682

RILEY v. HOLLAND et al.

No. 42397.

Supreme Court of Missouri, Division No. 1.

Nov. 12, 1951.

Raymond F. McNally, Jr., St. Louis, for appellant.

James E. Crowe, City Counselor, John P. McCammon, Associate City Counselor, St. Louis, for respondents.

HYDE, Judge.

Proceeding to review order of the Civil Service Commission of the City of St. Louis, brought under the Administrative Procedure and Review Act. Chap. 536, R.S.1949. The Circuit Court affirmed the order of the Commission finding that plaintiff had a definite term of office which had expired, and he has appealed. We have jurisdiction under Sec. 3, Art. V of the Constitution because the City is a party in its governmental capacity (because of the office involved) as a political subdivision of the State.

Plaintiff was Director of Public Safety from April 17, 1945 to June 21, 1949, on which latter date the appointee of the new Mayor (who took office in April 1949) qualified for the office. Prior to April 1945, plaintiff was Executive Secretary to the Mayor. The question for decision is whether plaintiff had indefinite tenure under the civil service provisions of the City Charter (Amended Article XVIII) and was not subject to removal except for cause under the rules of the Commission. This depends upon whether Sec. 1, Art. VIII of the Charter remains in full force and effect.

Section 1, Article VIII is as follows: 'The Mayor shall appoint the following officers at his convenience, to hold for the term for which he was elected and until their successors qualify: Assessor, Collector, Treasurer, Supply Commissioner, Register, City Counselor, City Marshal, City Court Judges, Clerk of City Courts, President Board of Public Service, Director of Public Utilities, Director of Streets and Sewers, Director of Public Welfare and Director of Public Safety.'

Plaintiff contends this provision of the Charter is repealed by implication by reason of being in conflict with provisions of new Article XVIII, also referred to as the Civil Service Amendment. The repealing clause of the Civil Service Amendment was: 'All provisions of the City Charter and ordinances and rules thereunder, or parts thereof, inconsistent with this amendment, are hereby repealed.' However, defendants say there is no conflict between Article XVIII and Section 1 of Article VIII, and that they can be harmonized so that both can stand. The rules of construction in such a situation are as follows: 'Repeals by implication are not favored--in order for a later statute to operate as a repeal by implication of an earlier one, there must be such manifest and total repugnance that the two cannot stand; where two acts are seemingly repugnant, they must, if possible, be so construed that the latter may not operate as a repeal of the earlier one by implication; if they are not irreconcilably inconsistent, both must stand.' State ex rel. George B. Peck Co. v. Brown, 340 Mo. 1189, 105 S.W.2d 909, 911. recognition of Sec. 1 of Art. VIII as remaining with the Civil Service Amendment. Section 1(h) by making these positions described officers and employees in the classified service except members of boards and those in other positions serving without compensation and officers and employees of the Board of Alderman. (Sec. 1(m).) However, the each particular situation as it arises. positions (Sec. 1(f)) and excepted positions. As to the latter, Sec. 1(h) provides: 121 N.J.L. 380, 2 A.2d 369 and City of in the classified service not subject to the provisions of this Article requiring competitive tests of fitness for appointment and such other provisions as, by their terms, apply specifically to competitive positions alone. All such positions, however, shall be subject to all the other provisions of this Article insofar as consistent with law and with this exception. The following described positions, and no others, shall be deemed to be excepted positions:

'(1) all positions filled by election by the people;

'(2) all positions of heads of principal departments and of independent agencies, that are filled by appointment by the Mayor;

'(3) one position of executive secretary and one position of secretary and stenographer to the Mayor;

'(4) all positions of paid members of boards;

'(5) all officers and employees of the Board of Aldermen.'

(It will be noted that employees of the Board of Aldermen are placed in both the classified and unclassified service.)

Section 3 provides for rules to be adopted to ascertain the lawmakers's intent, from the various matters many of which are specified as applying to the competitive service, including such matters as a systematic classification plan, a systematic compensation plan, determination of merit and fitness for appointment, promotion, demotion, transfer, reinstatement, reemployment, temporary appointment, rating standards, welfare programs, leaves and holidays, fines and suspensions, resignations, and a retirement system. Subsection (f) thereof provides for rules 'for indefinite tenure of employment in positions in the classified service during meritorious service, except in cases for which definite terms are prescribed by law or charter, and except in cases of temporary appointment hereunder, but with due provision for layoff on termination of the need for employment in any position, or of funds available therefor.' (All italics ours.)

Plaintiff relies very much on the italicised sentence of Section 1(h) and on Section 2 which states the purpose of Article XVIII ('to provide a modern comprehensive system of personnel administration for the City') and which also states as one of its basic requirements: 'All appointments and promotions to positions in the service of the City and all measures for the control and regulation of employment in such positions, and separation therefrom, shall be on the sole basis of merit and fitness, which, so far as practicable, shall be ascertained by means of competitive tests, or service datings, or both.' Section 2 further states that 'the City service, so far as practicable,...