State ex rel. Kansas City v. Trimble

• Citation: 20 S.W.2d 17,322 Mo. 360
• Decision Date: 27 March 1929
• Docket Number: 29012
• Parties: The State ex rel. Kansas City v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals
• Court: United States State Supreme Court of Missouri

20 S.W.2d 17

322 Mo. 360

The State ex rel. Kansas City v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals

No. 29012

Supreme Court of Missouri

March 27, 1929

Rehearing Denied May 25, 1929.

Writ quashed.

John T. Barker, Marcy K. Brown, Jr., and William H Allen for relator.

(1) The record of the Court of Appeals being made up of and including the record of the circuit court, when the former was quashed the latter also, by operation of law and merger in the Court of Appeals' record, was also quashed and the case has finally ended. The Court of Appeals therefore acted illegally and in excess of its jurisdiction in ordering the circuit court to render a judgment in each case, no record in either court remaining upon which a judgment could be rendered. (2) The Court of Appeals acted illegally and beyond its jurisdiction in ordering the circuit court to grant peremptory writs against relator after its record and opinion were quashed by this court, it having no records before it to justify such orders and judgments. State ex rel. Fogel Const. Co. v. Trimble, 310 Mo. 248; State ex rel Mo. Gas & Elec. Co. v. Trimble, 307 Mo. 536; State ex rel. Ins. Co. v. Trimble, 310 Mo. 446; State ex rel. Ins. Co. v. Trimble, 306 Mo. 295; State ex rel Ry. Co. v. Trimble, 302 Mo. 8; State ex rel. Fabrico v. Trimble, 309 Mo. 415; State ex rel. Blythe v. Trimble, 258 S.W. 1013; State ex rel. Natl. Council v. Trimble, 239 S.W. 469; State ex rel. Light & Power Co. v. Trimble, 315 Mo. 32; State ex rel. Auto Ins. Co. v. Trimble, 249 S.W. 902; State ex rel. v. Ellison, 256 Mo. 667; Iba v. Railroad, 182 S.W. 135. (3) The Court of Appeals acted in excess of its jurisdiction in failing and refusing to set this case down upon its docket for re-argument and re-decision upon the merits, after its original opinion had been quashed by this court. (4) The Court of Appeals exceeded its jurisdiction, in violation of Sec. 15, Art. 6, Mo. Constitution, and Sec. 1519, R. S. 1919, in its orders and judgments, in not writing complete opinions. State ex rel. v. Robertson, 264 Mo. 661; State ex rel. v. Broaddus, 245 Mo. 123, 238 Mo. 189. (5) The order and judgment of the Court of Appeals order the substitution of new officials, successors in office to the prior defendants, and authorizes the rendition of a final judgment against them without notice, trial or hearing. Such order and judgment are therefore in conflict with prior controlling rulings of this court holding that before such substitution can be had, notice, trial and hearing to the new defendants must be given. State ex rel. Priddy v. Gibson, 187 Mo. 554; State ex rel. Mt. Pleasant Township v. Hall, 262 S.W. 720. (6) The order and judgment of the Court of Appeals hold that the removal of a public officer is not a judicial act and that mandamus is the proper remedy in the case of such wrongful removal. This conflicts with prior decisions of this court holding that removal of a public officer is a judicial act and certiorari and not mandamus is the proper remedy in such case. St. Louis County v. Sparks, 10 Mo. 117; Winston v. Mosly, Auditor, 35 Mo. 146; State ex rel. v. Thompson, 36 Mo. 71; State ex rel. v. City, 90 Mo. 19; Banker v. Faulhaber, 94 Mo. 430; State ex rel. v. Slover, 113 Mo. 202; State ex rel. v. Wallbridge, 119 Mo. 383; 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; State ex rel. v. Moorehead, 256 Mo. 683; State ex rel. v. Caldwell, 310 Mo. 397. (7) The record in these cases shows that when each employee was discharged, another was appointed to the place, rendered the services and was paid therefor by Kansas City. The order and judgment of the Court of Appeals hold that under such circumstances Kansas City may be compelled to pay the discharged employee. Such holding is in conflict with prior controlling rulings of this court holding payment of the de facto officer is a complete defense. State ex rel. Kansas City v. Coon, 296 S.W. 103; Hunter v. Chandler, 45 Mo. 457; State ex rel. Vail v. Clark, 52 Mo. 512; State ex rel. Abington v. Reynolds, 280 Mo. 466. (8) The record shows that when each employee was discharged another was appointed to such position and actually filled the same. The order and judgment of the Court of Appeals hold that under such circumstances mandamus is the proper remedy. Such holding is in conflict with prior controlling rulings of this court holding that quo warranto is the proper remedy in order that the incumbent may have his day in court. St. Louis County 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. Cannon v. May, 106 Mo. 488; Winston v. Mosly, 35 Mo. 146.

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

(1) The city's Point 3 is merely an assertion that the Court of Appeals did not set these cases for re-argument "upon the merits" and thereby erred. The Court of Appeals says that "when the case again reached this court it was set down for re-argument and was again submitted to this court for consideration." Which statement will this court accept, that of the city or that of the Court of Appeals? But the city says it did not brief or argue these cases "on the merits." Well, if it wanted to brief and argue these cases "on the merits," why did it not do so? Nobody stopped it. On the contrary, it was invited to do so. The Court of Appeals, in a special written notice, informed both sides that it "desires the attorneys to present to the court at that time their views as to disposition this court shall make of these cases." The court did not limit the hearing in any particular. The door was wide open. The city deliberately chose not to enter into a discussion "on the merits." It seems to be "laying it on a bit thick," as the English say, for the city to contend that these opinions must be quashed by certiorari because the city chose not to discuss the merits when it had an express invitation from the court -- an unusual courtesy -- to discuss anything whatever relating to what "disposition this court shall make of these cases." There is sound sense in the fireside saying that: "He that will not when he may, when he would he shall have Nay." Anyhow there is no "conflict of opinion" on this matter. (2) The city's fourth point is that the opinion must be quashed because the Court of Appeals did not write what the city chooses to call a "complete opinion." This seems rather an odd reason for granting a writ of certiorari. There is nowhere any command that any court shall write a "complete opinion." The Constitution simply requires that the opinions "shall be in writing." The statute, Sec. 1518, R. S. 1919, is to the same effect, and Sec. 1519 only requires that the opinion shall contain "a sufficient statement of the case, so that it may be understood without reference to the record and proceedings in the same." What power has the legislative department to tell the judicial department what it shall put into its opinions? Turner v. Anderson, 236 Mo. 523. But, in any event, how is that question involved in cases which hinge solely on conflict of decisions as these certiorari cases do? The fact is, of course, that the Court of Appeals followed the ancient and usual practice of writing a principal opinion in the principal case and four shorter opinions in the other four cases, just as this court did in these identical cases when they were here before on certiorari. State v. Trimble, 298 S.W. 833-5-6-7. Furthermore, even if the Court of Appeals had not written a "complete opinion" in each case, what sense or justice would there be in depriving the litigants of a judgment in their favor merely because the court had failed to do its duty in giving its reasons for its judgments? How could certiorari be invoked in such a case anyhow? (3) The city's fifth point is, in substance, that when the Court of Appeals ordered that the successors in office of certain former defendants should be substituted in their stead, it was in conflict with the Priddy case, 187 Mo. l. c. 554, and the Mt. Pleasant case, 262 S.W. 720. Observe that it is not claimed that the officers so substituted were not, in fact, the successors in office of the former defendants. That they were so is undisputed. Of course, the true rule is that, in mandamus, when the duty to be performed is an official duty and the defendant is sued in his official capacity then the successor may be substituted and the action proceeds as if no change in the personnel had occurred. Under the city's theory, if any one of the defendants for any reason should vacate his office, no matter at what stage of the proceedings, then the whole proceeding fails and it is necessary to go back to the beginning and do it all over again. It is sometimes necessary to mandamus a body composed of a large number of persons, such as a city council. If the whole proceeding becomes a nullity by the slightest change in personnel, the law becomes a farce, and the litigation becomes practically interminable. This court has itself done exactly what the Court of Appeals did in these cases. State ex rel. Chapman v. Walbridge, 153 Mo. 194. See also State ex rel. v. Trimble, 298 S.W. 835; Thompson v. United States, 103 U.S. 483; County Commrs. v. Sellew, 99 U.S. 624; State ex rel. v. Wurdeman, 183 Mo.App. 42; 26 Cyc. 422; 18 R. C. L. 338, sec. 289; 13 Ency. Pl. & Pr. 663, 756; Warner Valley Co. v. Smith, 165 U.S. 33; Murphy v. Utter, 186 U.S. 102; Bunch v. United States, 252 F. 680; Hicks v. Cleveland, 106 F. 466. (4) The city's further point is that mandamus is not the proper remedy; that the Court of Appeals in its opinion held to...