State ex rel. and to Use of Baumes v. Mason

• Decision Date: 15 September 1941
• Docket Number: 37869
• Parties: State of Missouri at the relation and to the use of Palmer B. Baumes, Commissioner of Parks and Recreation of the City of St. Louis and Henry S. Caulfield, Director of Public Welfare of the City of St. Louis, Relators, v. William L. Mason and David J. Murphy, Judges of the Circuit Court of the City of St. Louis
• Court: Missouri Supreme Court

154 S.W.2d 67

348 Mo. 436

State of Missouri at the relation and to the use of Palmer B. Baumes, Commissioner of Parks and Recreation of the City of St. Louis and Henry S. Caulfield, Director of Public Welfare of the City of St. Louis, Relators, v. William L. Mason and David J. Murphy, Judges of the Circuit Court of the City of St. Louis

No. 37869

Supreme Court of Missouri

September 15, 1941

Provisional rule in prohibition quashed.

Joseph F. Holland, George L. Stemmler and Albert Miller for relators; Oliver Senti, James V Frank and Charles F. Hamilton of counsel.

(1) Prohibition lies when, under the peculiar facts and circumstances of the particular case under consideration remedy by appeal or otherwise is unavailable, or, being available, is inadequate to secure to relators full and complete justice and relief in the premises. State ex rel. Caulfield v. Sartorius, 344 Mo. 919, 130 S.W.2d 541; State ex rel. Castlen v. Mulloy, 331 Mo. 776 55 S.W.2d 294. (a) In the instant case the following facts and circumstances warrant and require the issuance of a permanent writ of prohibition under the rule above stated: There is no appeal from the temporary restraining order or the order to show cause. Sec. 1184, R. S. 1939; Ross Const. Co. v. Chiles, 344 Mo. 1084, 130 S.W.2d 524; Marsala v. Gentry, 232 S.W. 1046. The order to show cause is made returnable after the date of the election on the proposed civil service amendment and, by holding plaintiffs in their respective employments for a period beyond that date, accomplishes the very purpose plaintiffs intended to accomplish by the bringing of the suit, as is admitted in plaintiffs' own petition, all without notice to relator, Baumes, or opportunity on his part to be heard. The delay incident to the remedy by appeal from a final judgment in the circuit court cause will permit further disruption and demoralization of the Park Department and will come too late to save the people of St. Louis from irreparable harm and injury. Scarrett Estate Co. v. Johnson, 303 Mo. 664, 262 S.W. 373; State ex rel. Lane v. Montgomery, 221 Mo.App. 1043, 295 S.W. 824. The lower court's restraint is upon a public and not a private right. The people of St. Louis are deprived of their right to the unhampered exercise of official discretion on the part of relators. The effect of the restraining order has been to virtually paralyze the administration by relators of the functions and activities of the Park Department and to demoralize its staff of employees. Said order of the circuit court interferes with both of said relators in the performance of their official duties under the charter and ordinances of the City of St. Louis, and prohibition will lie to prevent such interference. State ex rel. v. Mulloy, 333 Mo. 282; Ward v. Pub. Serv. Comm., 341 Mo. 227. The effect of respondent, Mason's, drastic and far-reaching restraining order, by depriving the relators of their powers under the charter, and virtually substituting, in their places, the circuit court, amounts to a usurpation by the judicial department of the government of the powers of another -- the executive -- department of the government, in direct violation of Article III of the Constitution of Missouri. Mo. Const., Art. III; White v. Berry, 171 U.S. 366, 53 L.Ed. 199; Selecman v. Matthews, 321 Mo. 1047, 15 S.W.2d 788, 63 A. L. R. 512; State ex rel. Shartel v. Westhues, 320 Mo. 1093, 9 S.W.2d 612; Louisiana v. McAdoo, 234 U.S. 627, 58 L.Ed. 1506. (b) The judiciary cannot interfere, either by mandamus or injunction, with executive officers, such as relators here, in the discharge of their official duties, unless those duties are of a character purely ministerial, and involving no exercise of judgment or discretion. Kirwan v. Murphy, 189 U.S. 35, 47 L.Ed. 698; Litchfield v. Richards, 9 Wall. 575, 19 L.Ed. 681; Mickadiet v. Payne, 269 F. 194; Kearney v. Laird, 164 Mo.App. 406. (2) Where plaintiffs' petition in an injunction suit wholly fails to set out a cause of action for equitable relief, such failure will, with other matters, be considered as grounds for the issuance of the permanent writ. State ex rel. Castlen v. Mulloy, 331 Mo. 776, 55 S.W.2d 294; State ex rel. Smith v. Joynt, 344 Mo. 686, 127 S.W.2d 708. (3) A court of equity has no jurisdiction to try title to office nor position in public office; nor to restrain the removal of a municipal officer or employee by injunction. White v. Berry, 171 U.S. 366, 43 L.Ed. 199; State ex rel. v. Stone, 152 Mo. 202; Civic League v. St. Louis, 223 S.W. 891; State ex rel. v. Smith, 196 S.W. 17; Sharpe v. Los Angeles, 136 Cal.App. 732. (4) Even though it could be held that relators have a complete, effective and speedy remedy by appeal, so that this court, in the exercise of its discretionary power might well have refused to issue the preliminary writ, yet, having issued the preliminary writ, and the cause being before the court, this court will proceed to dispose of the case on its merits. State ex rel. Mueller v. Wurdeman, 232 S.W. 1002; State ex rel. Busby v. Cowan, 232 Mo.App. 391, 107 S.W.2d 805. (5) The restraining order is so vague, indefinite and confusing that the relators against whom it is directed cannot determine with any degree of certainty the extent to which they are being restrained or the extent to which the order permits them to perform the duties of their office. Such an order should not be permitted to stand, and this court's preliminary rule should be made absolute. Temco Mfg. Co. v. Natl. Elec. Ticket Register Co., 223 Mo.App. 420, 18 S.W.2d 142; Oliver v. Orrick, 220 Mo.App. 614, 288 S.W. 966. (6) Where a large number of persons are improperly joined as plaintiffs, the causes of action of whom, if any, are based on different employments and different facts and circumstances, requiring different defenses on the part of defendant, such misjoinder will, with other matters, be considered as grounds for the issuance of the permanent writ. (7) Section 7 of Article XVIII of the Charter provides that the appointing officer may discharge either, (a) with cause, or (b) without cause. Clearly, then, the power to discharge without cause under (b) is general and unrestricted, and Section 12, prohibiting discharge for political or religious reasons, cannot be construed as a limitation on (b). To so construe it would serve to nullify the clear and express provisions of (b). It follows, then, that if Section 12 is to be construed as a limitation upon Section 7, it can only apply to (a), relating to the right to discharge with cause. Construed, then, as a mandatory limitation upon (a), it becomes null and of no practical force or effect. The framers of the charter cannot be held to have intended it as a mandatory limitation upon the power to discharge with cause (a) when they must have known that, in the case of each employee sought to be discharged, the limitation could be easily and effectually circumvented by the simple expedient of invoking the correlative power to discharge without cause (b). Viewed in this light, the limitation must be considered as not mandatory, but as merely directory, setting up a rule and guide for the appointing or discharging officer in the performance of his duties, and not furnishing the basis for a refusal, on the part of an employee, to abide by a notice of discharge. Furthermore, no provision is made by the charter as to the result that shall follow if Section 12 is violated. Under such circumstances the provisions of Section 12 must, under well-established principles, be held to be merely directory. Hudgins v. Cons. School Dist., 312 Mo. 1, 278 S.W. 769; State ex inf. McAllister v. Bird. 295 Mo. 344, 244 S.W. 938. (8) Where construction of the provisions of a charter in a particular manner is palpably contrary to the intention of its framers, is meaningless, impracticable, difficult of application, and leads to an absurdity (as would result if Section 12 is construed as a mandatory limitation), the court will not follow such a construction, but will so construe the provisions as to lead to an intelligible, practicable and reasonable result (as would follow if Section 12 is construed as merely directory). State ex rel. Norvell-Shapleigh Co. v. Cook, 178 Mo. 189, 77 S.W. 599; State ex rel. St. Louis County v. Gordon, 268 Mo. 713, 188 S.W. 160; 16 C. J. S. 56. (9) Even though it be held that respondent, Mason, had jurisdiction in the circuit court cause, his action in granting the restraining order without notice, and in making the order to show cause returnable after the election, without any crying need for such precipitate action, amounted to an excessive exercise of such jurisdiction, warranting this court in making its preliminary rule absolute. State ex rel. Caron v. Dearing, 291 Mo. 169, 236 S.W. 629.

Jerome F. Duggan for respondents.

(1) Prohibition is a proper remedy only when it is evident from the petition that no cause of action is or can be stated in such matter, but even if the petition is defective and subject to a demurrer, but can be amended to cure a pleading defect, prohibition will not lie. State ex rel. Warde v McQuillin, 262 Mo. 256, 171 S.W. 72; State ex rel. Beinero v. McQuillin, 246 Mo. 517, 152 S.W. 347; State ex rel. McManus v. Muench, 217 Mo. 124, 117 S.W. 25; State ex rel. Terminal Assn. v. Tracy, 237 Mo. 109, 140 S.W. 888. (2) An officer of the State or city may be enjoined from acting in an unconstitutional manner, or may be enjoined from acting in an otherwise illegal manner. State v. Johnston, 137 S.W. 595; Gray v. School District, 28 S.W.2d 683; Hight v. City of Harrisonville, 41 S.W.2d 155; Smith v. Hendricks, 136 S.W.2d 449. (3) When an officer of government acts or is about to act in an unconstitutional or an illegal manner, such officer is not regarded as...