State ex rel. Gallagher v. Kansas City

• Decision Date: 04 April 1928
• Docket Number: 28663
• Citation: 7 S.W.2d 357,319 Mo. 705
• Parties: The State ex rel. Harry W. Gallagher, Appellant, v. Kansas City et al
• Court: Missouri Supreme Court

7 S.W.2d 357

319 Mo. 705

The State ex rel. Harry W. Gallagher, Appellant, v. Kansas City et al

No. 28663

Supreme Court of Missouri

April 4, 1928

Motion for Rehearing Denied May 18, 1928.

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Affirmed.

John I. Williamson, Darius A. Brown and Prescott Brown for appellant.

(1) The provisions of the statute (Art. 15, Charter 1908) must be strictly pursued to effect a valid removal. State ex rel Hamilton v. Kansas City, 303 Mo. 50; State ex rel Prior v. Kansas City, 261 S.W. 112; State ex rel. Langford v. Kansas City, 261 S.W. 115; State ex rel. Stomp v. Kansas City, 281 S.W. 426; 2 Dillon on Mun. Corp. (5 Ed.) sec. 468; Truitt v. Philadelphia, 221 Pa. St. 331; State ex rel. v. Sullivan, 58 Ohio St. 504, 65 Am. St. 78; State ex rel. v. Board, 95 Ohio St. 287; Mechem on Public Officers, sec. 452. (2) The attempted removal of relator was unlawful because the sole cause or reason assigned was wholly insufficient to justify removal. (a) Section 510 of the ordinances, by its plain and express terms, could not apply to relator. (b) Section 510, in so far as it attempts or purports to regulate and control the appointment and removal of persons in the competitive class of the classified service, is in direct conflict with Article 15 of the Charter of 1908. The charter controls. State ex rel. Hamilton v. Kansas City, 259 S.W. 1047. (c) The fact that relator did not reside within the corporate limits of Kansas City did not and could not in any manner whatsoever "especially relate to and affect the administration of the office," and did not and could not constitute a cause "touching the performance of his duties showing that he was not a fit or proper person to hold the office." State ex rel. v. Walker, 68 Mo.App. 119; State ex rel. v. Sheppard, 192 Mo. 510; State ex rel. v. Kansas City, 233 Mo. 180; State ex rel. Hamilton v. Kansas City, 259 S.W. 1050. (3) The attempted removal of relator being unlawful, relator is entitled by mandamus to be restored to physical possession and to have the salary of his position during the period of unlawful discharge. State ex rel. Rundberg v. Kansas City, 206 Mo.App. 17; State ex rel. Chapman v. Walbridge, 153 Mo. 194; State ex rel. Hamilton v. Kansas City, 303 Mo. 50; State ex rel. Langford v. Kansas City, 261 S.W. 115; State ex rel. Stomp v. Kansas City, 281 S.W. 426. (4) The court erred in overruling relator's motion for judgment notwithstanding findings. Such motion is still available if the answer does not state a defense, or no defense is shown by the evidence. Relator made a perfect case entitling him to the relief prayed for, and no evidence was introduced to the contrary. King v. Grover Co., 188 Mo.App. 239; Hart v. Ford, 142 Mo. 283; Dezell v. F. & C. Co., 176 Mo. 255.

John T. Barker, E. F. Halstead, Marcy K. Brown, Jr., and William H. Allen for respondents.

(1) The overwhelming weight of authority in this country is that where one is wrongfully removed, but by a board or person authorized to remove, such removal is a judicial act, and until set aside in a direct proceeding is a bar to any suit by a person thus removed. Certiorari is the appropriate and only remedy to quash and set aside such judicial act of removal, and until such removal is set aside, mandamus is not the proper remedy to restore one to office so removed or to compel payment of salary by the city. St. Louis County Court v. Sparks, 10 Mo. 117; Winston v. Mosely, 35 Mo. 146; State ex rel. v. Thompson, 36 Mo. 71; State ex rel. v. Commissioners, 14 Mo.App. 297; State ex rel. v. City, 90 Mo. 19; Manker v. Faulhaber, 94 Mo. 430; State ex rel. v. Slover, 113 Mo. 202; State ex rel. v. Walbridge, 119 Mo. 383, 62 Mo.App. 162; State ex rel. v. Harrison, 141 Mo. 12; State ex rel. v. Walbridge, 153 Mo. 194; State ex rel. v. Maroney, 191 Mo. 531; State ex rel. v. Knott, 207 Mo. 167; State ex rel. v. Miles, 210 Mo. 127; Gracey v. St. Louis, 213 Mo. 384; State ex rel. v. Morehead, 256 Mo. 683; State ex rel. v. Kansas City, 303 Mo. 50, 261 S.W. 112, 115; State ex rel. v. Caldwell, 310 Mo. 397; State ex rel. v. Kansas City, 281 S.W. 426; Farish v. Young, 158 P. 845; Hall v. Bledsoe, 189 S.W. 1041; In re Paulsen's Estate, 170 P. 855; Board v. Darrow, 13 Colo. 460; Mayor v. Shaw, 16 Ga. 172; People ex rel. v. Thompson, 316 Ill. 11; People ex rel. v. Burdette, 285 Ill. 48; People ex rel. v. Dreher, 302 Ill. 50; Blake v. Lindblom, 225 Ill. 555; State ex rel. v. City, 240 Ill.App. 208; Riley v. City, 212 N.W. 716; Riley v. Crawford, 165 N.W. 345; Gorley v. City, 104 Ky. 372; Merrick v. Board, 2 N.W. 922; Hartwig v. Mayor, 134 Mich. 616; State ex rel. v. McColl, 127 Minn. 155; State ex rel. v. Council, 55 N.W. 118; Hagerty v. Shedd, 74 A. 1055; Jaramillo v. Commissioners, 250 P. 729; People ex rel. v. Griffing, 152 N.Y.S. 113; Hagan v. City, 126 N.Y. 643; Crowe v. Albee, 169 P. 785; Selby v. City, 12 P. 377; Hayden v. Council, 47 S.W. 182; Gilbert v. Board, 40 P. 264; Rutter v. Burke, 93 A. 842; Helmick v. Court, 64 S.E. 17; State ex rel. v. Goodland, 150 N.W. 488; In re Delgado, 140 U.S. 586; Regina v. Burns, 2 Ld. Raym. 1265; 9 Enc. Laws Eng. p. 278; High's Extr. Leg. Rem. (2 Ed.) sec. 49, p. 55, sec. 108, p. 98; 18 R. C. L. 256; Merrill on Mandamus, sec. 148, p. 182; 43 C. J. 681; Mechem's Pub. Offices & Officers, sec. 346, p. 228. (2) Mandamus will never lie to restore a discharged employee to office, or compel payment of salary, if another has been appointed to such position and is actually filling same. Quo warranto is the proper remedy in order that the incumbent may have his day in court. It is admitted that when Gallagher was removed Harris was appointed in his place, rendered the services and was paid. This suit cannot be maintained. Walden v. Town of Headland, 47 So. 79; Drescher v. Board of Supervisors, 215 P. 902; Morton v. Broderick, 118 Cal. 474; Comstock v. Hempstead, 78 A. 442; Bonner v. State, 7 Ga. 473; People v. Trustees, 42 Ill.App. 60; City of Terre Haute v. Burns, 116 N.E. 604; Leonard v. City of Terre Haute, 93 N.E. 872; French v. Cowan, 79 Me. 426; Ashwell v. Bullock, 122 Mich. 620; St. Louis Co. v. Sparks, 10 Mo. 117; State ex rel. v. Thompson, 36 Mo. 70; State ex rel. v. Rodman, 43 Mo. 256; State ex rel. v. County Court, 25 Mo.App. 446; State ex rel. Cannon v. May, 106 Mo. 488; Winston v. Moseley, 35 Mo. 146; Stabler v. Porter, 232 P. 187; State v. Atlantic City, 8 L. R. A. 697; Jarramilo v. County Comrs., 250 P. 729; People ex rel. v. Sheehan, 113 N.Y.S. 230; People ex rel. v. Scrugham, 20 Barb. (N. Y.) 302; People ex rel. v. Police Commrs., 174 N.Y. 450; People ex rel. v. Stevens, 5 Hill's Rep. 616; People ex rel. v. Mayor of New York, 3 Johns.' Cas. 79; Ellison v. Raleigh, 89 N.C. 125; Greenlee v. Cole, 149 N.E. 711; Kile v. Graham, 235 P. 524; Selby v. City of Portland, 12 P. 377; State ex rel. Powell v. Fassett, 125 P. 963; State ex rel. Niggle v. Kirkwood, 46 P. 331; Board of Education v. Reed, 100 Wis. 455; United States v. Malmin, 272 F. 790. (3) It is admitted in this case that when Gallagher was removed Harris was appointed in his place, rendered the services and was paid by Kansas City. Under such admission Gallagher cannot maintain a suit either in mandamus or for salary against Kansas City, as it cannot be compelled to pay twice for the same services. State ex rel. v. Coon, 296 S.W. 103; Shaw v. County, 2 Ariz. 399; Coughlin v. McElroy, 74 Conn. 397; Lee v. Mayor, 40 A. 663; Gorman v. Commissioners, 1 Idaho, 655; People ex rel. v. Schmidt, 281 Ill. 211; People ex rel. v. v. Burdett, 283 Ill. 124; Hittell v. City, 158 N.E. 683; City v. Burns, 116 N.E. 604; Leonard v. City, 93 N.E. 872; Brown v. County, 98 N.W. 562; Commissioners v. Anderson, 20 Kan. 298; Nall v. Coulter, 117 Ky. 747; Mitchel v. City, 32 La. Ann. 1094; Scott v. Crump, 64 N.W. 1; Parker v. Supervisors, 4 Minn. 30; Westberg v. City, 64 Mo. 493; State ex rel. v. Commissioners, 80 Mo.App. 206; Shannon v. Portsmouth, 54 N.H. 183; Bassler v. Gordon, 253 P. 228; McDonald v. Newark, 58 N. J. L. 12; City v. Gear, 27 N. J. L. 265; Demarest v. Mayor, 147 N.Y. 203; McVeany v. Mayor, 80 N.Y. 185; Sutliffe v. City, 117 N.Y.S. 813; Terhune v. Mayor, 88 N.Y. 247; Steubenville v. Culp, 38 Ohio St. 18; Stearns, Mayor, v. Sims, 104 P. 44; Fuller v. County, 68 N.W. 308; State ex rel. v. Fassett, 125 P. 963; Bier v. Gorrell, 30 W.Va. 95; 43 C. J. 688; 8 Am. & Eng. Ency. Law (2 Ed.) 813; 2 McQuillin, Mun. Corp., sec. 518, p. 1125; 1 Dillon, Mun. Corp. (5 Ed.) sec. 429, p. 745; 29 Ency. Law, 1430; Mechem's Pub. Offices & Officers, sec. 332, p. 222, sec. 333, p. 223.

Graves, J. All concur; Walker, C. J., in a separate opinion.

OPINION

GRAVES

This is one of the many cases arising in Kansas City, and growing out of the discharge of employees who claim to hold positions under Civil Service provisions of the then existing charter and ordinances of Kansas City. The relator, Gallagher, claims to have held the position of meter mechanic in the Meter Division under the Board of Fire and Water Commissioners. The place paid $ 6.80 per day for the days engaged in work. Relator claims, and for the purposes of this case (in the view we have of the law) it may be admitted, that he stood the civil service examination, and was later appointed to the place by the duly constituted authorities, under civil service provisions of the then charter and ordinances. Relator avers that he was unlawfully discharged without a statement of charges and without a hearing. By this mandamus proceeding he seeks to compel respondents:

"Wherefore, relator prays that this court award a writ of mandamus commanding defendants, the members of the Board of Fire and Water Commissioners of Kansas City Missouri, or their successors, without further excuse...