State ex rel. Goldman v. Kansas City, No. 26378.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtGraves
Citation8 S.W.2d 620
Docket NumberNo. 26378.
Decision Date18 May 1928
PartiesTHE STATE EX REL. HENRY GOLDMAN, Appellant, v. KANSAS CITY ET AL.
8 S.W.2d 620
THE STATE EX REL. HENRY GOLDMAN, Appellant,
v.
KANSAS CITY ET AL.
No. 26378.
Supreme Court of Missouri, Division One.
May 18, 1928.

[8 S.W.2d 621]

Appeal from Jackson Circuit Court.Hon. Samuel A. Dew, Judge.

AFFIRMED.

V.E. Phillips, David M. Proctor, Darius A. Brown and John I. Williamson for appellant.

(1) The provisions of the statute (Article 15. Charter of Kansas City) 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) Relator's attempted discharge was unlawful because: (a) It was directly contrary to the requirement and prohibition "nor shall any person in the competitive class of the city service be removed, ... without first having received a written statement setting forth in detail the reasons therefor." Charter, Art. 15, sec. 10; 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. (b) Relator held during good behavior. The civil service law supplied the place of a fixed term. State ex rel. Rundberg v. Kansas City, 206 Mo. App. 17; State ex rel. Hamilton v. Kansas City, 303 Mo. 50; State ex rel. Langford v. Kansas City, 261 S.W. 115; State ex rel. Prior v. Kansas City, 261 S.W. 112; State ex rel. Stomp v. Kansas City, 281 S.W. 426; Street Comrs. v. Williams, 96 Md. 232; Roth v. State ex rel., 158 Ind. 242. The purpose of the charter in requiring the written statement of charges was that relator might have a hearing and opportunity to disprove the accusations. State ex rel. Rundberg v. Kansas City, 206 Mo. App. 17; State ex rel. Hamilton v. Kansas City, 303 Mo. 50; State ex rel. Langford v. Kansas City, 261 S.W. 115; State ex rel. Prior v. Kansas City, 261 S.W. 112; State ex rel. Stomp v. Kansas City, 281 S.W. 426; Truitt v. Philadelphia, 221 Pa. St. 331; Dallam v. Wilson, 53 Mich. 392. It inevitably results, as well as from the general law as from the express mandate of the charter, that before relator might be discharged he must be given opportunity to defend; before condemned he must be accused, and before executed he must be heard. Gracey v. St. Louis, 213 Mo. 395; State ex rel. v. Maroney, 191 Mo. 531; Dennison v. St. Louis, 90 Mo. 19; State v. Walbridge. 119 Mo. 395; State ex rel. Rundberg v. Kansas City, 206 Mo. App. 17; State ex rel. Hamilton v. Kansas City, 303 Mo. 50. (3) The record shows relator was removed for political reasons. The removal was therefore void. State ex rel. Hamilton v. Kansas City, 303 Mo. 50; State ex rel. Rawlings v. Kansas City, 213 Mo. App. 349. (4) Having been unlawfully discharged, relator is entitled by mandamus to be restored to the payroll 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.

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

(1) It is admitted that when Goldman, the de jure employee, was removed, another was appointed in his place and was paid for the services rendered. Under such admission Goldman can recover nothing in this suit, as Kansas City cannot be compelled to pay twice for the same services. State ex rel. v. Coon, 296 S.W. 102; Sutliffe v. New York, 117 N.Y. Supp. 813; Stemmler v. New York, 179 N.Y. 473; 87 N.Y. App. Div. 631; Terre Haute v. Burns (Ind.), 116 N.E. 604; Walden v. Headland, 156 Ala. 562; Thompson v. Denver, 61 Colo. 470; State ex rel. v. Newark, 58 N.J.L. 12; State ex rel. v. Fassett, 69 Wash. 555; County v. Anderson, 20 Kan. 298; Dolan v. Louisville, 142 Ky. 818; Scott v. Crump, 106 Mich. 288; Patterson v. State, 92 Nebr. 729; Dolan v. New York, 68 N.Y. 274, 23 Am. Rep. 168; Mattox v. County, 5 A.L.R. 583, note; 22 R.C.L. secs. 241, 242; 29 Cyc. 269; 8 Am. & Eng. Ency. Law (2 Ed.) 813; Mechem, Pub. Off., 332; McQuillin's Mun. Cor., 518; 1 Dillon's Mun. Cor. (5 Ed.) 743, 747. (2) Mandamus is not the proper remedy to restore a discharged employee to office where a judicial or quasi-judicial body has discharged such employee and made a written record showing the reason therefor. Certiorari is the only remedy available to quash and set aside such judicial act. State ex rel. Davidson v. Caldwell, 310 Mo. 407; State ex rel. Smith v. Williams, 310 Mo. 272; State ex rel. v. Knott, 207 Mo. 167; State ex rel. v. Morehead, 256 Mo. 683; State ex rel. v. Slover 113 Mo. 202; State ex rel. v. Mulvihill 113 Mo. App. 327; 11 C.J. 90, 102, 108, 121, 122; 43 C.J. 681, note 96; State ex rel. v. Harrison, 141 Mo. 19; State ex rel. Sales v. Nortoni, 201 Mo. 1; State ex rel. v. Walbridge, 62 Mo. App. 162; Court v. Sparks, 10 Mo. 80; Jackson v. Thompson, 36 Mo. 70; People v. Thompson, 316 Ill. 11. (3) Civil service laws regarding the appointment of city employees are not for the benefit of such employees, but are for the public good; an office is not the property of the officeholder, but is a public trust or agency. Sanders v. Kansas City, 175 Mo. App. 371; 23 Am. & Eng. Ency. Law 328; Mechem's Public Officers, sec. 464; 2 McQuillin's Mun. Corp., sec. 494.

GRAVES, P.J.


Relator herein sued in mandamus to compel his restoration to the petition of Censor of Films & Pictures, a place created by city ordinance prior to November 16, 1918, at which date, relator was, under the then civil service ordinance of said city, duly appointed to the position or place. The petition was broad enough to cover a mandamus for the compensation provided by the several ordinances.

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