State ex rel. City of Pacific v. Buford, 9948

• Decision Date: 09 March 1976
• Docket Number: R,No. 9948,No. 36549,9948,36549
• Parties: STATE of Missouri ex rel. CITY OF PACIFIC, Missouri, Relator, v. Winston V. BUFORD, Judge of the Thirty-Seventh (37th) Judicial Circuit, sitting as a Special Judge in the Circuit Court of Franklin County, Missouri, in Causeespondent. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 819

534 S.W.2d 819

STATE of Missouri ex rel. CITY OF PACIFIC, Missouri, Relator, v. Winston V. BUFORD, Judge of the Thirty-Seventh (37th) Judicial Circuit, sitting as a Special Judge in the Circuit Court of Franklin County Missouri, in Cause No. 9948, Respondent.

No. 36549.

Missouri Court of Appeals, St. Louis District, Division One.

March 9, 1976.

James L Anding, Pacific, for relator.

Charles M. Shaw, Clayton, for respondent.

RENDLEN, Judge.

Relator seeks prohibition to prevent respondent from proceeding on a motion to cite for contempt in a cause entitled 'In the Matter of: P. H. Albertson, Cause No. 9948, in the Circuit Court of Franklin County.' In that action the respondent, on February 16, 1974, reversed and held for naught the impeachment proceedings of relator, removing Albertson as City Marshal. Seeking enforcement of the judgment reversing the City's impeachment action, Albertson moved the respondent to cite relator for contempt 'in and for its refusal to set aside and hold for naught its Acts of September 4, 1973 and December 6, 1973(,) suspending and removing Petitioner as Marshal of said City and thus not paying Petitioner's salary and emoluments and to punish Respondent City of Pacific for said contumacious refusal . . .' For reasons we shall discuss, our preliminary writ of prohibition is made absolute.

The aldermen of relator, City of Pacific, sitting as a board of impeachment, heard charges and on December 6, 1973, ordered impeachment and removal of P. H. Albertson as Marshal of the City. Albertson petitioned the Circuit Court of Franklin County for judicial review of these actions. On February 16, 1974, the Circuit Court found the issues for petitioner and further found the City (relator here) had acted arbitrarily and capriciously, that its actions were unlawful and they were 'held for naught.' Pertinent portions of the order are as follows: 'WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that said acts by the City of Pacific on September 4, 1973, and December 6, 1973, are hereby set aside and held for naught; . . .' Further the actions of the City were 'not supported by competent and substantial evidence' and costs of the proceedings were taxed against the City.

Numerous procedural moves were undertaken by both sides including an appeal by the City which was abandoned on July 1, 1974, for the alleged reason that 'P. H. Albertson was defeated in his bid for reelection to the position of City Marshal in the municipal elections of April 2, 1974' and the matter of their appeal was thus 'moot.'

Thereafter Albertson filed his motion to cite the City for contempt, alleging among other things the City of Pacific had contemptuously failed to pay the salary and emoluments due during the period of Albertson's suspension and for other relief. The City responded, filing suggestions in opposition to the contempt motion, and the court took cognizance of the proceeding. Relator then filed its petition for prohibition accompanied by suggestions in support; and on October 17, 1974, this court made its preliminary order prohibiting respondent from proceeding further in the cause.

We are aware that a writ of prohibition is an extraordinary remedy to be used with great care, State ex rel. Eichorn v. Luten, 515 S.W.2d 857, 859(1) (Mo.App.1974); and generally the purpose of the writ is to prevent a lower court from acting without or in excess of its jurisdiction. State ex rel. Vogel v. Campbell, 505 S.W.2d 54, 58(7) (Mo. banc 1974).

Here, we must determine whether respondent has jurisdiction to adjudicate or grant the relief requested in the contempt proceeding. Before any adjudication could be made in such proceeding, 'there must be jurisdiction of the person and of the subject matter, and in addition the court must have jurisdiction to render the particular judgment in the particular case before it.' (Emphasis ours.) State ex rel. Eichorn v Luten, supra at 859(3). Petitioner requests the court to hold relator in contempt for its alleged contumacious refusal to 'set aside . . . its acts' thereby refusing to carry out the order of the court. In effect petitioner seeks contempt for the City's failure to take affirmative action; e.g., enactment of a repealing ordinance, when in fact no such affirmative action was required of the City of the judgment. No orders were directed to the City to enact any repealing ordinances; no finding or judgment was made directing the City to take specific action to reinstate Albertson. There was no judgment and no finding touching Albertson's entitlement to pay or emoluments for past or future services. No judgment for money was entered and nothing appears touching the value of services or similar aspects of the dispute.

By his contempt motion, Albertson would have the Circuit Court cite the City for...