State ex rel. Cannon v. May

Decision Date26 October 1891
PartiesThe State ex rel. Cannon et al. v. May
CourtMissouri Supreme Court

[Copyrighted Material Omitted]

This is an extraordinary proceeding by mandamus, brought by the relators, constituting the board of public works of Kansas City, and W. L. Sheppard, their appointee, as superintendent of streets against respondent, John May, the superintendent of streets of said city, appointed by the mayor, by and with the consent of the common council of said city, for the possession of certain office furniture and public records.

The petition and pleadings are, perhaps, the best statement of the case, and are substantially as follows: The petition in substance alleges: That the city of Kansas City is a municipal corporation incorporated by special charter under and by virtue of section 16, of article 9, of the constitution of the state of Missouri; that by the provisions of said charter there was established within and for the city an executive department to be known as the "board of public works;" that the relators herein as designated now constitute the board of public works of the city.

That under and by virtue of said charter the common council of the city of Kansas City, by its ordinance, number 268, duly adopted and approved on the second day of August, 1889 entitled, "An ordinance defining the duties of the board of public works, establishing departments under their control, fixing the number of employes, and the salaries of the same," which said ordinance is in words and figures as follows:

"No 268. An ordinance defining the duties of the board of public works, establishing departments under their control, fixing the number of employes, and the salaries of the same.

"Be it ordained by the common council of Kansas City:

"Article I.

"Section 1. The duties of the board of public works shall be to meet at its office at least once a week in open session to consider and take under advisement such business as may come before it. Said board shall employ at least one engineer, who shall be known as the city engineer, and it shall appoint such additional engineers, inspectors, clerks, assistants and other persons as may be necessary, subject to removal at the will of the board, for cause, by a vote of three-fourths of said board, and all employes shall give bond as is now required or may hereafter be required by ordinance.

"Sec. 2. Said board shall supervise the grading and paving of all streets, avenues, alleys and public grounds; the cleaning, sprinkling, repairing and improving of all streets, alleys and public places; the construction, altering and repairing of all bridges, culverts, receiving basins, sewers, drains and water courses within said city; the laying of gas and water pipes through any street or alley, and the issuing of permits for connecting with any gas, sewer or water pipes; the laying down and repairing of all sidewalks, crosswalks, curbing and guttering; the construction of all vaults under any portion of said streets; the construction, alteration and removal of all buildings, houses, barns, stables, fences and other similar improvements upon lots and lands within the limits of the city, and the issue of permits therefor. The construction and repair of the city hall, engine-houses and other public buildings in the city.

"Sec. 3. It shall be the duty of the board of public works to purchase all supplies and material needed by the city in its several departments. In all cases where the cost of said supplies and material shall exceed the sum of $ 500, it shall be the duty of said board to advertise for proposals for such supplies and materials, and they shall award the contract to the lowest and best bidder, requiring a bond for the fulfillment of the contract: Provided that the board shall have the right to reject any and all bids, if not deemed satisfactory, and re-advertise in like manner as at first. When the cost of such supplies or material shall not exceed the sum of $ 500, the board may make such purchases in whatsoever manner they may deem for the best interests of the city.

"Sec. 4. It shall be the duty of the board to divide or classify the various works or interests under its control into departments, so far as may be, and keep an accurate account of each branch, showing the amount expended for original improvements and constructions, and the amount for repairs, superintendence and other expenditures, exhibiting the source of expenditure; to make a report in writing to the common council once every three months or oftener if required, giving the expenditures of the different branches or departments of the work under the control of said board and embracing a statement of the condition, progress and operation of the work under its charge; to furnish through its president to the mayor and common council, or either branch thereof, such data or information as may be from time to time necessary to report; at the beginning of each fiscal year to submit to the comptroller a statement of the estimated amount required by said board for repairs and improvements during the ensuing year; to keep books of account showing with entire accuracy the receipts and expenditures of the board in such manner as to enable the same to be understood and investigated, and also to preserve on file in his office duplicate vouchers for all its expenditures, which books and duplicates shall at all times be open to the examination of the comptroller, finance committee of the common council or any other committee appointed by said council.

"Sec. 5. All contracts and official acts of the board of public works shall be signed by the president or by two members of the board, attested by the secretary under seal of the board.

"Sec. 6 (as amended). The board of public works is hereby authorized to employ the following persons: Secretary, per year, $ 1,800; chief clerk (purchasing agent), $ 1,500; clerk (bookkeeper), $ 1,000.

"Sec. 7. Said board shall also exercise such other powers and perform such other duties in the superintendence of public work, improvements and repairs constructed by authority of the common council of the city, or owned by the city, as may be prescribed by ordinance. Said board shall make such rules and regulations as may be necessary for the government of its departments, not inconsistent with the charter or ordinances of the city.

"Article II.

"Departments.

"Section 1. The following departments of the board of public works are hereby established, viz.: The department of engineering, the department of streets and alleys, and the department of buildings.

"Department of Streets.

"Sec. 4 (as amended). The head of this department shall be the superintendent of streets, with a salary of $ 2,000 per year; clerk, $ 1,200; inspectors, not to exceed two in number, each $ 1,000; carpenters, not to exceed five in number, while employed, each per day $ 2.50; masons, not to exceed two in number, while employed, each per day $ 3.50; pavers, not to exceed four in number, while employed, each per day $ 2.75; foremen, not to exceed six in number, while employed, each per day $ 2.50; laborers, not to exceed one hundred in number, while employed, each per day $ 2; teams and drivers, not to exceed thirty in number, for team and driver, while employed, each per day $ 3.50.

"Sec. 5. It shall be the duties of the department of streets to have charge of the repairs of all streets and alleys, to repair all bridges, sidewalks and curbing, to construct all street crossings and to repair the same and to have charge of the cleaning and sprinkling of streets. It shall have charge of the repairs of sewers and catch-basins and the erection of all telegraph, telephone and electric light poles. It shall also have the supervision of all excavations and fillings made for the laying of gas and water pipes, the repairing of sewers, or for any other purpose whatsoever in the streets and alleys in the city. It shall have charge and control of all implements and teams employed in such work, of all tools and implements issued for such work, and to do such other things as may be from time to time required by the board of public works.

"Sec. 6. All ordinances or parts of ordinances in conflict with this ordinance are hereby repealed." Approved, August 2, 1889.

That relator Sheppard has been appointed superintendent of streets by said board as they claim by virtue of said ordinance and qualified as such, and has demanded of respondent May the books and records pertaining to said position, and May's refusal to deliver the same.

The defendant's return to the alternative writ admits that the relators named in the petition do constitute and are the board of public works of Kansas City, Missouri. Admits that he has possession of the property mentioned in the petition and alternative writ and that he refused to deliver the possession thereof to the board of public works of Kansas City, for the reason that he is entitled to the possession of the same, and that he so holds the said possession by claim of right. Denies that the board of public works has any right to appoint the superintendent of streets. Denies that the relator Sheppard was appointed superintendent of streets. Denies that he has been duly qualified or given bond as such superintendent as required by charter and ordinance. Denies each and every other allegation set forth in the alternative writ except such as expressly admitted. Denies that he was appointed superintendent of streets for the period of one year.

For further return to said writ says that by the revised ordinances of said city charter 49, sections 973, 974, 975 976, approved May 12, 1888, there was created the office of street commissioner or superintendent...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT