State ex rel. Burke v. Cervantes

• Decision Date: 12 February 1968
• Docket Number: No. 2,No. 52595,52595,2
• Citation: 423 S.W.2d 791
• Parties: 57 Lab.Cas. P 51,834 STATE of Missouri ex rel. Chris BURKE et al., Respondents, v. Alfonso Juan CERVANTES, Mayor of the City of St. Louis, Missouri, Appellant
• Court: Missouri Supreme Court

Page 791

423 S.W.2d 791

57 Lab.Cas. P 51,834

STATE of Missouri ex rel. Chris BURKE et al., Respondents, v. Alfonso Juan CERVANTES, Mayor of the City of St. Louis Missouri, Appellant.

No. 52595.

Supreme Court of Missouri, Division No. 2.

Feb. 12, 1968.

Eugene P. Walsh, Aubuchon & Walsh, St. Louis, for respondents.

Thomas F. McGuire, City Counselor, James J. Gallagher, Associate City Counselor, St. Louis, for appellant.

PRITCHARD, Commissioner.

Respondents, who are members of the City of St. Louis Fire Department (and claiming to be class representatives of the employees thereof), were successful upon their application for a writ of mandamus below in which the Mayor was directed by the Circuit Court to appoint a Firemen's Arbitration Board to consider grievances under § 290.350 et seq., RSMo 1959 (L.1963, p. 415, § 1 et seq.). The principal and determinative issue is whether those sections apply or whether the City of St. Louis, being a constitutional charter city, has exclusive power to deal with the matters presented by the firemen under the Civil Service provision of its charter. The construction of Art. VI, Sec. 22, Const. of Mo. 1945, V.A.M.S., as applicable to said statutes being in issue, this court has appellate jurisdiction.

Respondents, as relators below, filed their petition for a writ of mandamus on November 16, 1965. Therein they alleged that they, Chris Burke, Vernon Houchin, George Thiele and Joseph McMahon, are paid members of the Fire Department of the City of St. Louis, residents of that city; that they bring the action on behalf of themselves and each and all other persons similarly situated who signed the petition for arbitration (hereinafter mentioned); that such persons are so numerous as to make it impracticable to bring them all before the court; that the rights which are the subject of this action are common to all members of the Fire Department; that plaintiffs have been fairly chosen and do adequately represent all other persons similarly situated who are paid members of the Fire Department.

It was further alleged that a dispute had arisen concerning wages and conditions of employment between members of the Fire Department and the Mayor and other officers of the city; that pursuant to said § 290.350 et seq., a petition for arbitration was signed by 850 members of the Fire Department (being greater in number than 51% of the employees of the Fire Department) and was sent to the former Mayor (Mayor Tucker) of the city on March 5, 1965. That petition recited the provisions of said § 290.350, and the signers, 'being members of the St. Louis Fire Department, and members of International Association of Fire Fighters, Local #73, St. Louis, Missouri, do hereby authorize our representatives to seek arbitration for the purpose of resolving the following grievances: 1. Re-allocation--all ranks two grades. 2. Hospital and medical assistance. 3. Recognition of longevity.' Pursuant to the statute, four names were submitted as the signers' choice of representatives: 1. Russell E. Egan, 4560 Chouteau; 2. Paul Prisler, 4274 Shenandoah; 3. Oscar A. Ehrhardt, 1401 Hampton; and 4. Rev. Trafford P. Maher, S.J., 221 North Grand. It was lastly alleged that, although requested, the Mayor 'has steadfastly and arbitrarily without good cause or justification refused and failed to abide by the provisions of Section 290.350 to 290.380 inclusive, Revised Statutes of Missouri 1959 (1963 Supplement), and failed to appoint four members of a firemen's arbitration board.'

Section 290.350, supra, provides: 'Whenever a dispute exists concerning wages, hours of labor, or conditions of employment of members of a paid fire department of any county, city, town, fire district, or other governmental unit having a population in excess of twenty thousand or located in a county of the first class, and a request for arbitration is made by either party to the dispute, a firemen's arbitration board shall be appointed as provided in sections 290.350 to 290.380. Request for arbitration may be made by written petition signed by at least fifty-one per cent of the employees of the fire department or by resolution of the county court, council, board, or other governing body having direction and control over the fire department.'

Section 290.360 provides that the chief executive of the county, city or town or other governmental unit involved shall appoint four members of the board, two of whom shall be from the list of four or more submitted by the employees, and a fifth member shall be selected by the four so appointed by the chief executive. § 290.370 provides that the board shall conduct hearings and report its findings and recommendations in writing to such chief executive officer, which recommendations shall be advisory only and shall not be binding upon the county, city, town, fire district, or other government unit or the members of the fire department.

Article VI, Sec. 19, Const.Mo.1945, V.A.M.S., substantially the same as Article IX, Sec. 16, Const.1875, except that the population requirement was reduced from 100,000, provides: 'Any city having more than 10,000 inhabitants may frame and adopt a charter for its own government, consistent with and subject to the constitution and laws of the state, in the following manner: * * *.' By authority of the 1875 Constitution, the City of St. Louis adopted a comprehensive charter which was effective August 29, 1914. The provisions of the charter so framed and adopted have the force and effect of legislative enactments, Giers Imp. Corp. v. Investment Service, 361 Mo. 504, 235 S.W.2d 355, and the same presents a complete system of local self-government, Kansas City v. Field, 270 Mo. 500, 194 S.W. 39.

By Point I, appellant contends that the trial court order and judgment requiring him to appoint a Firemen's Arbitration Board under side § 290.350 is in error because that statute is unconstitutional and void as to the city under the provisions of Art. VI, Sec. 22, Const.Mo.1945, V.A.M.S.: 'No law shall be enacted creating or fixing the powers, duties or compensation of any municipal office or employment, for any city framing or adopting its own charter under this or any previous constitution, and all such offices or employments heretofore created shall cease at the end of the terms of any present incumbents.' It is said by appellant that by this constitutional provision (new in 1945) 'the City of St. Louis and its various...