State ex rel. Campbell v. Police Comm'rs

• Decision Date: 06 November 1883
• Citation: 14 Mo.App. 297
• Parties: STATE OF MISSOURI, EX REL. JOHN W. CAMPBELL v. POLICE COMMISSIONERS ET AL., Respondents,
• Court: Missouri Court of Appeals

14 Mo.App. 297

STATE OF MISSOURI, EX REL. JOHN W. CAMPBELL

v.POLICE COMMISSIONERS ET AL., Respondents,

St. Louis Court of Appeals, Missouri.

Nov. 6, 1883.

WRIT of Certiorari.

Record quashed.

HENRY HITCHCOCK, for the relator: In a proceeding by certiorari, the only question is, whether there is error in the record of the inferior tribunal brought up by the writ. Nothing outside of the record can be considered for the purpose of determining that question.-- The State ex rel. v. Powers, 68 Mo. 323; Hannibal, etc., R. Co. v. State Board, 64 Mo. 308. If want of jurisdiction or irregularity appears from the record of the proceedings below they will be quashed.-- Owens v. Andrew County, 49 Mo. 372; The State ex rel. v. Dowling, 50 Mo. 136; Mullins v. The People, 24 N. Y. 399 (affirmed 40 N. Y. 154); Gambling v. Cholwell, 6 Abb. Pr. 151. Where a statute requires that a removal from office must be “for cause,” it necessarily implies that the “cause” must be “some dereliction or general neglect of duty or incapacity to perform the duties, or some delinquency affecting his general character and his fitness.”-- The People ex rel. v. The Fire Commissioners, 72 N. Y. 445-449; The People ex rel. v. Nichols, 79 N. Y. 582-588; Murdock v. The Trustees, 12 Pick. 244, 263; 1 Dillon on Mun. Corp. (3d ed.), sects. 250, 253, 255. Statutes conferring upon inferior tribunals a power even of summary proceeding, are to be strictly construed, “and will not be held to deprive one of a regular trial by due course of legal proceedings if any other construction can be given them.”-- Owens v. Andrew County, 49 Mo. 378; The People ex rel. v. The Mayor, 19 Hun, 441; 1 Dillon on Mun. Corp., sect. 253.

JOHN G. CHANDLER, for the relator: The removal must be for cause.-- Ex parte Nichols, 57 How. Pr. 395; The People v. Cooper, 57 How. Pr. 416; 19 Hun, 441; The People v. The Fire Commissioners, 72 N. Y. 445; The People v. The Board of Police, 39 N. Y. 506. “The proceedings of trial and dismissal of members of police force should show regularity beyond doubt.”-- Gambling v. Cholwell, 6 Abb. Pr. 151. In proceedings by certiorari the court can not look beyond the record certified.-- The State v. Powers, 68 Mo. 320; Emery v. Brann, 67 Mo. 39; Hannibal, etc., R. Co. v. The State Board, 64 Mo. 294; The People v. The Board of Police, 69 N. Y. 39.KRUM & JONAS, for the respondents: The power of removal is incidental to that of appointment where the tenure of office is not fixed.-- The People ex rel. v. Higgins, 15 Ill. 110. And the cause of removal need not be assigned.-- Keenan v. Perry, 24 Texas, 259; The People v. Stout, 19 How. 171.

LEVERETT BELL, for the respondents.

LEWIS, P. J., delivered the opinion of the court.

The return upon a writ of certiorari issued from this court and directed to the police commissioners of the city of St. Louis and each of them, by name, contains “a full and complete transcript of the records and proceedings of said board, touching the removal of John W. Campbell as chief of police.” From this transcript it appears that on June 8, 1881, the resignation of James McDonough, as chief of police, was tendered and accepted, and Captain Ferd. B. Kennett was appointed to the same office, “from and after said date.” No term of service was annexed to this appointment, nor was there any in the cases of those which followed. That on August 8, 1882, Kennett's resignation was tendered and accepted, and, upon an election held to fill the vacancy, John W. Campbell was “declared duly elected chief of police of the city of St. Louis.” That on April 10, 1883, at a regular meeting of the board “on motion John W. Campbell was continued chief of police.” That on October 9, 1883, the board, by a majority vote, adopted a resolution in these words: “ Resolved, That the order of the board of April 10, 1883, continuing John W. Campbell as chief of police, be and is hereby rescinded, and that the office of chief of police be declared vacant.” The return contains also a copy of rule 5, of the standing rules or by-laws of the board, as follows:--

“Charges against members of the police force must be submitted in writing, and when not preferred by a commissioner, the chief of police, a captain or sergeant, they must be certified by the affidavit of the complainant or informer.”

If, as the relator claims, the resolution of October 9, 1883, was adopted without authority of law, and in violation of express legal provisions, that action of the board must be adjudged void, and its attempted removal of the relator from his office, a nullity. The whole issue before us must be determined by an application of the tests of law to the face of the proceedings, as they appear in the return.

The statutory provisions now in force and deemed material to the present inquiry are the following: Section 2, Chapter VI., of the laws specially applicable to the city of St. Louis, Revised Statutes, page 1528, establishes a board of five police commissioners, whose official tenure and duties are defined in that and succeeding sections. The law proceeds:--

“SECT. 6. To enable the said board to perform the duties imposed upon them, they are hereby authorized and required, as speedily as may be, to appoint, enroll and employ a permanent police force for the city of St. Louis, which they will equip and arm as they may judge necessary. * * * The policemen shall be employed to serve four years, and be subject to removal only for cause, after a hearing by the board, who are hereby invested with exclusive jurisdiction in the premises. Any policeman whose term of service shall expire, and who, during his appointment, shall have faithfully performed his duty, shall, if otherwise qualified, be preferred by the board in making their new appointments.

SECT. 7. The officers of police shall be as follows: One chief of police, who shall give bond with security in the penal sum of $20,000 for the faithful performance of his duties; three captains, three lieutenants, not exceeding twelve sergeants and four turnkeys; they shall be appointed by the board for such time as the board shall determine, and be subject to removal by the board for cause.” “SECT. 11. The board of police are hereby authorized to make all such rules and regulations, not inconsistent with this act, as they may judge necessary for the appointment, employment, uniforming, discipline, trial, and government of the police.” * * *

Section 2, of the same act, contains the following provision: “Before entering upon the duties of their said office the said commissioners and the said mayor shall take and subscribe before the judge of the circuit court of St. Louis county, or the clerk thereof, the oath or affirmation prescribed by the constitution of the state of Missouri, and shall also take and subscribe before the same judge or clerk the further oath or affirmation that, in any and every appointment or removal to be by them made to or from the police force created and to be organized by them under this act, they will, in no case and under no pretext, appoint or remove any policeman or officer of police or other person under them on account of the political opinions of such policeman, officer or other person, or for any other cause or reason than the fitness or unfitness of such person, in the best judgment of said commissioners, for the place to which he shall be appointed or from which he shall be removed.”

For the relator it is assumed that, under these statutory provisions, the board had no lawful authority to remove the chief except “for cause,” that is for some cause touching his fidelity or capacity or fitness or unfitness to hold the office and discharge its duties. That, inasmuch as the record of proceedings does not show that any such cause existed, or was even alleged or pretended, it results as a legal conclusion, that the removal was made or attempted without cause and was therefore void. For the commissioners it is contended that the power to appoint “for such time as the board shall determine” is equivalent to a power of investiture during the pleasure of the board. That the words “subject to removal by the board for cause,” do not convey an exclusive intendment, but are cumulative of a power, coupled with a duty of removal, additional to that which may be exercised upon mere volition. That, even if this be not the meaning of the statute, the fact that the office was conferred upon the relator, without any specification of its term or duration, made it an appointment for and during the pleasure of the appointing power, and the removal was therefore valid, whether any cause existed or not.

It is not disputed that the power of removal at pleasure is incidental to the power of appointing, in the absence of any inconsistent limitation in the law which creates the authority to appoint. If the law provides a term for the incumbency, this will supersede the incidental power of removal during the continuance of the term. If, notwithstanding the term, provision is made for a removal upon certain conditions, or for certain reasons, there can be no valid removal pending the term unless such conditions or reasons appear, either presumptively or otherwise. This is the substance of numerous adjudications which the industry of counsel has collated in aid of our inquiry, and all of which have been carefully examined.

It is of the first importance, therefore, to ascertain what was the tenure or term, if any, to the relator's official position, at the moment when the resolution declaring it vacated was adopted. If anything was vested in him by virtue of the previous acts of the board, it was the office of chief of police, in all completeness, with its entire tenure, duration, rights, and immunities, whatever these might be, as they were defined by the law of its creation. It was not in the power of the board to annul or abridge them, if his appointment was valid. That it was so, the defendants do not deny, nor could they be permitted to...