State ex rel. Hamilton v. Kansas City
| Decision Date | 07 March 1924 |
| Docket Number | 23592 |
| Citation | 259 S.W. 1045,303 Mo. 50 |
| Parties | THE STATE ex rel. FRED B. HAMILTON v. KANSAS CITY et al., Appellants |
| Court | Missouri Supreme Court |
Motion for Rehearing Denied March 7, 1924.
Appeal from Jackson Circuit Court; Hon. James H. Austin Judge.
Affirmed.
John B. Pew and George Kingsley for appellants.
(1) If the power to appoint the Superintendent of Buildings is derived from the charter of Kansas City and not from the Building Code, as respondent contends, then, that power is given to the Board of Public Works and not to the mayor. Charter, art. 15, sec. 10, p. 456; Art. 4, sec. 4, p. 176; Art. 10, sec. 1, p. 360; Art. 10, sec. 11; Art. 10, sec. 8. (2) If relator was merely the de facto Superintendent of Buildings at the time of his removal, then he was not entitled to re-instatement, no matter how he was removed or displaced. Sheridan v. St. Louis, 183 Mo 25, 38; 26 Cyc. 263; Stott v. Chicago, 205 Ill. 281 286; Moon v. Mayor, 214 Ill. 40. (3) The Building Code ordinance, approved March 9, 1908, providing for the appointment of the Superintendent of Buildings was not repealed by the present charter, which went into effect September 4, 1908, unless the ordinance is inconsistent with the charter. Charter & Ordinances of 1909, art. 18, sec. 1 p. 478; Art. 3, sec. 1, cl. 18, p. 151; Art. 3, sec. 1, cl. 35, p. 160. The charter does not fix the term of office of the Superintendent of Buildings. Sec. 1071 of Revised Ordinances, p. 853. The Building Code makes the term of the Superintendent of Buildings two years. (4) Since relator's term of office was two years, and since he was appointed August 12, 1910, and never re-appointed his term of office had expired long before his removal on June 1, 1918. He was at the date of his removal a mere locum tenens, subject to removal at pleasure. The appointment of Shinnick, his successor, was enough to accomplish his removal. State ex rel. v. Stonestreet, 99 Mo. 361, 376. (5) If the mayor had the power under the charter to appoint relator, then it follows that he could remove relator under article 4, sec. 2, p. 194, of the Charter. (6) Relator's conduct with reference to this trust fund is sufficient to prevent his reinstatement. State ex rel. Stickle v. Martin, 195 Mo.App. 366; Secs. 3334, 3341, R. S. 1919. (7) The court erred in announcing the conclusion of law as a finding of fact that the action of defendants in removing relator was in violation of the charter because no charges of misconduct or failure of official duty were made or filed against relator. The charter does not require the making or filing of such charges. See provisions of charter heretofore cited. (8) Relator was removed by the head of his department, and the Board of Public Works had the power to remove relator in the exercise of its discretion under provision of Art. 15, sec. 10, of the charter. This provision vests discretionary power of removal in the heads of departments. It is not necessary that charges be made or a hearing had. Good cause in law for the removal is not required. It is not necessary that the person removed be guilty of misconduct, or that he fail to perform his official duty. Under the charter the head of the department is made the judge of the sufficiency of the reasons for removal. State ex rel. v. Crandall, 269 Mo. 44; People v. Whitlock, 92 N.Y. 191; State v. Williams, 6 S.D. 119; Maryland v. Registrar, 59 Md. 283; Scott v. Waterloo, 180 N.W. 156; State v. Boyington, 188 P. 777. (9) The court erred in awarding a peremptory writ. Even though the court should find that under the provisions of Article 15, sec. 10, of the charter it was necessary that relator be furnished with a statement of the reasons for his removal as a condition precedent to his removal, yet it does not follow that a writ of mandamus will issue to restore relator because of the failure to furnish such statement. Here are defendants, including the head of relator's department, asking that he be not restored, and setting up several reasons why relator should not be in the position of Superintendent of Buildings. The head of the department by virtue of section 10, and not the court, is to judge of the existence and sufficiency of the reasons. If this court should reinstate relator because the formality of giving him a statement of reasons was not complied with, he will be immediately furnished with the statement and at once removed. Thus a writ of mandamus would give relator no substantial benefit, and the court will not issue its writ of mandamus except to secure for a relator some substantial and practical benefit. Gray v. Berrien Circuit Judge, 171 N.W. 431, 433; Neto v. Consellio, 122 P. 975; United States v. Lapp, 244 F. 380; State ex rel. Young v. Temperance Soc., 42 Mo.App. 485; State ex rel. v. Finley, 74 Mo.App. 213; State ex rel. Stickle v. Martin, 195 Mo.App. 366.
John I. Williamson, Darius A. Brown and John G. Park for respondent.
(1) The judicial policy of Missouri has always been to protect incumbents of public office against wrongful discharge during their lawful tenure. Gracey v. St. Louis, 213 Mo 384; State ex rel. Campbell v. Police Comrs., 88 Mo. 144; State ex rel. Campbell v. Police Comrs., 14 Mo.App. 297; State ex rel. Denison v. St. Louis, 90 Mo. 19; State ex rel. Rundberg v. Kansas City, 206 Mo.App. 17; State ex rel. Reid v. Walbridge, 119 Mo. 383, 395; State ex rel. Mosconi v. Maroney, 191 Mo. 531; State ex rel. Chapman v. Walbridge, 153 Mo. 194; Gregory v. Kansas City, 244 Mo. 523, 546; State ex rel. Pittman v. Adams, 44 Mo. 570; Basse v. St. Louis, 213 Mo. 401; Butterfield v. St. Louis, 213 Mo. 402; Williams v. St. Louis, 213 Mo. 403. (2) Civil service employees under the Kansas City Charter hold during good behavior and cannot be discharged without notice and hearing. Charter, art. 15; State ex rel. Rundberg v. Kansas City, 206 Mo.App. 17; Roth v. State ex rel. Kurtz, 158 Ind. 242; Gregory v. Kansas City, 244 Mo. 523, 546; Gracey v. St. Louis, 213 Mo. 384, 393; State ex rel. Gilmur v. Seattle, 83 Wash. 93; 1 Dillon on Mun. Corp. (5 Ed.) sec. 397; State ex rel. v. Police Comrs., 14 Mo.App. 297, 88 Mo. 144. They therefore hold until removed for cause, after notice and hearing. Gracey v. St. Louis, 213 Mo. 384, 394; State ex rel. v. Maroney, 191 Mo. 531; State ex rel. Denison v. St. Louis, 90 Mo. 19. (3) Relator was in the competitive class and protected by civil service rules of the city charter, and therefore could not be lawfully removed "without first having received a written statement setting forth in detail the reasons therefor." Charter, art. 15 sec. 10. The purpose of this provision was and is to afford the employee an opportunity to be heard. Truitt v. Philadelphia, 221 Pa. St. 331, 339; Ridgeway v. Fort Worth, 243 S.W. 748. (4) No charges against relator were served and no reasons given for the removal until after this suit was filed. Exhibit 3, assigning as reasons "for cause and the good of the service," was delivered after the discharge and was so vague as to be a nullity. State ex rel. Norton v. Lupton, 64 Mo. 415, 417; Truitt v. Philadelphia, 221 Pa. St. 331, 340; Dullam v. Wilson, 53 Mich. 392, 407; Butler v. White, 83 F. 578. The law for a motion must be strictly pursued. State ex rel. v. Morehead, 256 Mo. 683; 692; State ex rel. Mosconi v. Maroney, 191 Mo. 531, 548; State ex rel. v. Sheppard, 192 Mo. 497, 510; State ex inf. v. Hedrick, 241 S.W. 411; 2 Dillon on Mun. Corp. (5 Ed.) sec. 468; Truitt v. Philadelphia, 221 Pa. St. 331, 337; State ex rel. v. Sullivan, 58 Ohio St. 504, 65 Am. St. 78; State ex rel. v. Board, 95 Ohio St. 276, 287. This attempt to discharge without first delivering written statement of reasons was illegal, and must result in peremptory writ for re-instatement. State ex rel. Rundberg v. Kansas City, 206 Mo.App. 17; Truitt v. Philadelphia, 221 Pa. St. 331, 339; State ex rel. v. Board, 95 Ohio St. 276, 287. (5) The relator was entitled to notice or hearing because he was removable only for cause. Charter, art. 15 sec. 10, par. 2; Gregory v. Kansas City, 244 Mo. 523, 546. Discharge "for cause" and discharge "for the good of the public service" are synonymous. "Cause" is a substantial shortcoming detrimental to the efficiency of the service. 2 Dillon on Mun. Corp. (5 Ed.) sec. 477; Roth v. State ex rel., 158 Ind. 242, 254; Truitt v. Philadelphia, 221 Pa. St. 338. An employee removable for cause is entitled to be notified and heard. State ex rel. v. Walbridge, 119 Mo. 383, 394; State ex rel. Denison v. St. Louis, 90 Mo. 19, 22. (6) Relator was de jure Superintendent of Buildings May 31, 1918. Eads v. Wooldridge, 27 Mo. 251, 254. (a) The Board of Public Works had so dealt with him. (b) No other person could have been appointed. The appointment in effect was made by the Civil Service Board. Charter, art. 15, sec. 16; Gregory v. Kansas City, 244 Mo. 523, 545; People v. Loeffler, 175 Ill. 585; Attorney-General. v. Tillinghast, 203 Mass. 539, 17 Ann. Cas. 449; People ex rel. Beck v. Aldermen, 42 N.Y.S. 545, 548; 1 Dillon on Mun. Corp. (5 Ed.) sec. 399, p. 693; 22 R. C. L. 422; 29 Cyc. 1371; Mechem on Pub. Off., secs. 102, 114; Johnston v. Wilson, 2 N.H. 205, 9 Am. Dec. 50. (c) Relator being the person designated by the law to fill the office, clerical or ministerial omissions are of no consequence. State ex rel. Campbell v. Police Comrs., 14 Mo.App. 297, 302; People ex rel. Merritt v. Civil Service Board, 43 N.Y.S. 191, 13 A.D. 309; McKean v. Goutier, 132 Ill.App. 376, 380. (d) Relator being the person designated by the law to fill the office, and being in possession, it will be presumed that every rightful thing was done necessary to invest him with the office. State ex rel. v. Police Comrs., 14 Mo.App. 297, 88 Mo. 144; Throop on Pub. Off., sec. 300; 22 Am. & Eng. Ency. Law ...
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