State ex rel. Goldman v. Kansas City

Decision Date18 May 1928
Docket NumberNo. 26378.,26378.
PartiesTHE STATE EX REL. HENRY GOLDMAN, Appellant, v. KANSAS CITY ET AL.
CourtMissouri Supreme Court

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.

Briefs in this case have become numerous as the time passed. Whether they are consistent throughout, we need not say. In the original brief filed herein the learned counsel for relator say:

"This is a proceeding in mandamus under Article XV of the Charter of 1908, to physically restore appellant in the position of censor of films and pictures, a position in the competitive class of the city's service in Kansas City, Mo., and to compel the payment of the salary of the position during the period of unlawful suspension. There is little, if any, dispute in regard to the essential facts."

After certain details, as to relator passing the civil service examination, and later being appointed, and as to the three several ordinances fixing the compensation during the period covered by his service, learned counsel then say:

"The civil service record card of appellant is Exhibit 1, and found at page 36 of the record and shows that the examination and certification were regular in every respect; that appellant was placed on the eligible list November 15, 1918, was certified November 18, 1918, appointed November 18, 1918; that the salary was raised, as indicated, on July 16, 1920, and that he was discharged April 26, 1922."

Note that counsel say he was discharged. He was in fact appointed during Mayor Cowgill's administration, and discharged under Mayor Cromwell's administration.

The instant suit was filed on January 19, 1924. Some evidence is relied upon to explain this delay, and this can be outlined, if it becomes pertinent. Admissions in the pleadings may obviate much. Shortly thereafter the official roster of Kansas City changed by reason of the intervening election, and the new officials were substituted as parties respondents. These new respondents, successors to Mayor Cromwell, and his official family, made a lengthy return (some twelve printed pages) to the alternative writ of mandamus, and to this the relator replied at some length. With the views we have of the case full details of these pleadings are not necessary, and we can note later such parts as we find necessary. Trial was had in the Circuit Court of Jackson County, shortly after the conclusion of which the learned trial court, by his judgment and decree, thus disposed of the case:

"This cause having been heretofore heard and by the court taken under advisement, and now the court being fully advised in the premises denies the peremptory writ and quashes the alternative writ.

"Wherefore it is ordered and adjudged by the court that relator's peremptory writ be and the same is hereby denied, to which ruling of the court relator excepts.

"It is further ordered and adjudged by the court that relator's alternative writ be and the same is hereby quashed, to which ruling of the court relator excepts, and

"It is further ordered and adjudged by the court that relator pay the costs herein and execution issue therefor."

Appeal was duly taken by the relator, and the cause has been heard and submitted here. The pertinent evidentiary facts, as well as pertinent portions of the pleadings can be noticed in the course of the opinion.

The respondents in their brief say the judgment nisi ought to be affirmed, for some five reasons, thus stated:

"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.

"2. Appellant was discharged April 26, 1922; although knowing that another was appointed in his place and paid for his services, he did not file suit against Kansas City until the 23rd day of January, 1924. Having stood by and seen Kansas City pay another, he acquiesced in his discharge, abandoned his position, and is guilty...

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