State ex rel. Howard v. Smith

• Decision Date: 29 April 1884
• Citation: 15 Mo.App. 412
• Parties: THE STATE OF MISSOURI EX REL. S. HOWARD v. A. J. SMITH, AUDITOR, Respondent.
• Court: Missouri Court of Appeals

15 Mo.App. 412

THE STATE OF MISSOURI EX REL. S. HOWARD

v.A. J. SMITH, AUDITOR, Respondent.

St. Louis Court of Appeals, Missouri.

Apr. 29, 1884.

APPLICATION for mandamus.

Peremptory writ ordered.

THOMAS B. HARVEY, for the relator: The services of a janitor are necessary to the business of the court, and when the services are performed at the instance of the court, and the account therefor allowed by the court, the city auditor may be compelled to allow the demand.--Rev. Stats., sects. 1061, 1062; The State ex rel. v. Smith, 5 Mo. App. 427; The State ex rel. v. St. Louis, 42 Mo. 498.

LEVERETT BELL, for the respondent.

BAKEWELL, J., delivered the opinion of the court.

This is an application for a writ of mandamus to be directed to the auditor of the city of St. Louis, commanding him to audit and draw his warrant upon the treasurer of the city of St. Louis for the payment of certain accounts in favor of relator, for services as janitor of the St. Louis Criminal Court.

These accounts are $17.81 for ten days' services, from 22d to 31st December, 1883, at $55 a month, and $55 for services during the month of November.

The petition alleges that the St. Louis Criminal Court is a court of record, having exclusive original jurisdiction for the trial by jury of all felonies committed in the city of St. Louis, which has a population of 400,000 people; that its business requires that it should remain in session throughout the entire year, on almost every day; that, as a requisite part of the machinery of said court, grand juries are impanelled at each term, and are in almost continuous session in rooms adjacent to the court-room. That the law and public policy require that the notes of testimony given before them, and their deliberations, should be guarded with the utmost privacy, and that their findings and the indictments based thereon should be protected with the greatest care; and that, in the room used for the grand jury, and in the adjoining room in which are drawn indictments, important papers are frequently exposed to any one having access to these rooms. That two large rooms connected with the court-room are occupied by the clerk of the court and his deputies, in which rooms are kept the valuable records and documents pertaining to the court business, which can not be at all times protected from any designing person who has access to these rooms. That the law necessitates the continual presence at said court of a circuit attorney, assistant circuit attorney, and circuit attorney's clerk, for whom are provided two offices adjoining said court-room, in which are kept a library, private desks, and other suitable furniture, and wherein are deposited the testimony and proceedings of all prior grand juries, the testimony given at examinations in the court of criminal correction of all capital cases, the testimony and other records of inquests held by the coroner, indictments and pleadings in pending cases, official correspondence, and other valuable papers pertaining to the business of the court; and that stolen property and weapons used by homicides, and other instruments needed as evidence, are kept in these rooms, some of which articles, by reason of their size and shape, must remain exposed in these rooms; and that the business of the circuit attorney and his assistants requires them to pass continually in and out of these rooms in such a way that these valuable documents can not be placed beyond the reach of any person having access to these offices; that there is, also, adjoining these rooms, a private office for the judge of the criminal court, in which is a library and other furniture, and that the business of the judge requires that valuable papers and private memoranda should be in this room; that the nature of the business of the court draws vast numbers of persons to its sittings; that one hundred jurors are in constant attendance, as well as large numbers of witnesses before the court and the grand jury; and that, from these circumstances and the duties of the officials, these rooms are much frequented, and to keep them in decent and wholesome order they need the attention of a janitor who must have keys to the rooms and free access to them during the presence and absence of the officials. That in view of these facts, and the further fact that the building is thronged with members of the criminal classes, friends and advisers of the accused, many of whom would seize any opportunity to make away with evidence and other documents, it is important that the keys of these rooms and the right of entry to them at all times should be confided only to persons who have and deserve the confidence of the officials; that, in view of these facts, the judge of the criminal court, having confidence in the fitness and integrity of the relator, made an order, on the 22d of December, 1883, that the relator be appointed as janitor of these rooms at a salary of $55 a month, which was a reasonable remuneration; and that relator entered upon his duties as janitor, at that date, and faithfully discharged them until the 1st of February, 1884; and earned the amounts set forth in the bills, which were examined, allowed, and certified for payment by the court on the 11th of February, 1884; that the relator has presented the account, so allowed and certified, to the respondent, who is auditor of the city of St. Louis, and as such bound to audit and draw his warrant on the city treasurer for the amount of these bills, which respondent refused to do; that by ordinance of June 22, 1883, an appropriation was made by the municipal assembly of St. Louis providing a fund for the payment of the expenses of the city government, of which $750 remains in the treasurer's hands.

The petition further states that application for the relief asked has been made to the circuit court and refused. The petition is accompanied with various exhibits.

To the alternative writ issued on this petition, the auditor made return, admitting the allegations as to his official position and the presentation of these demands, and saying that they were disallowed by him because they represent no indebtedness payable out of the city treasury, and denying all other allegations of the petition and writ.

The return further sets up that, by virtue of the scheme for separation of the city and county of St. Louis, and the city charter, the ownership and control of the building in which are the court-room and other rooms in question were vested in the city; and that, by section 3, chapter 5, of a city ordinance of the 29th of March, 1881, it is provided that this building, called the “Four Courts,” shall be under the charge of an officer designated by the commissioner of public buildings; and that section 5 of the same ordinance provides that said commissioner shall make all necessary arrangements and regulations for the care and cleaning of said building, and he is authorized to appoint a janitor and four assistants for the building, and also a night watchman, whose salary is fixed by section 8, that of janitor at $780 a year, and that of his assistants at $55 each a month, this appointment to be approved by the board of public improvements; that these officers, before the dates mentioned in the petition, were duly appointed according to ordinance, and for the purpose of taking charge of the building and rooms in question, and are competent, honest, faithful, and efficient, and fully capable to perform these duties by keeping these rooms clean and in good order, and are paid by the city, and have given bond to the city as required by city ordinance; and that their services to take charge of the rooms in question were tendered by the commissioner of public buildings to the judge, clerk, circuit attorney and his assistants, and were by them rejected, and these janitors were refused all access to the rooms in question by these officials; that the employment of relator was without warrant of law, and created no indebtedness against the city.

The answer of relator to this return admits the employment by the commissioner of a janitor and four assistants for the building, and says that the services of one of the assistants was tendered to the officials above named; that he was a colored man, unknown to these officials, or to any of them, for which reason they deemed it imprudent to give him free access to the rooms in question, except the courtroom, and refused to him the keys of these rooms; and that, upon being refused access to the other rooms, he refused to clean the court-room. The answer denies the legal right of respondent to appoint a janitor for the rooms and offices of the judge and other officers of the criminal court. Respondent filed a general denial, by way of reply, to this answer.

Upon these pleadings the parties went to trial.

Of the functions of the judge of the criminal court and the circuit attorney and of the clerk of the criminal court, we take judicial notice. The allegations of the petition as to the use to which these rooms are put, the numbers and characters of the persons frequenting them, the documents which they contain, and the manner in which these documents are kept, were sufficiently established by the evidence introduced at the hearing. The allegations as to the appointment of relator by order of court, and as to the reasonable value of his services, were also proved. It was shown that his character was good, that he had been employed as janitor of the rooms in question for over four years, and was well known to the judge and other officials, and that he had, and deserved, their confidence, and that he was competent and efficient. The ordinances referred to in the pleadings were introduced in evidence.

The testimony tended to show that a head janitor and four assistants were appointed by the commissioner of public buildings to take charge of the Four Courts building, and that this force was entirely sufficient for the work, and was willing to do it,...