State ex rel. Kennedy v. Remmers

• Decision Date: 14 December 1936
• Docket Number: 33270
• Parties: State of Missouri at the relation of Gilbert Kennedy, Appellant, v. Oliver T. Remmers et al., Constituting the Board of Police Commissioners of the City of St. Louis
• Court: Missouri Supreme Court

101 S.W.2d 70

340 Mo. 126

State of Missouri at the relation of Gilbert Kennedy, Appellant, v. Oliver T. Remmers et al., Constituting the Board of Police Commissioners of the City of St. Louis

No. 33270

Supreme Court of Missouri

December 14, 1936

Appeal from Circuit Court of City of St. Louis; Hon. Robert W Hall, Judge.

Reversed and remanded (with directions).

Dubinsky & Duggan for appellant.

(1) One clothed with the powers, exercising the functions and receiving the emoluments of a public office, is a public officer. State ex rel. v. Bus, 135 Mo. 355; State ex rel. v. Maroney, 191 Mo. 545; State ex rel. v. Morehead, 256 Mo. 690; 23 Am. & Eng. Ency. of Law (2 Ed.), 322; 29 Cyc. 1364; Mechem's Publ. Off. & Offrs., sec. 1, pp. 1, 2. (2) It is generally held that the removal of a public officer for cause, especially after a hearing, is a judicial act so as to be reviewable by certiorari, and involves question of law for the courts. State ex rel. Dennison v. St. Louis, 90 Mo. 19; Ayres v. Hatch, 175 Mass. 489; State ex rel. v Knott, 207 Mo. 176; 11 C. J., p. 108, sec. 45; 43 C. J. p. 794; Dillon on Municipal Corp. (5 Ed.), sec. 476. (a) Supreme Court will affirm, on appeal from circuit court, judgment for relator in certiorari proceeding. State ex rel. v. St. Louis, 90 Mo. 19. (3) Police officers are not removable by the board except for cause on a hearing. State ex rel. v. Walbridge, 153 Mo. 200; State ex rel. v. St. Louis, 90 Mo. 19; State ex rel. v. Brown, 57 Mo.App. 199; State ex rel. v. Police Examiners, 14 Mo.App. 297; State ex rel. v. Police Examiners, 80 Mo. 144; Mechem's Public Off. and Offs., sec. 454. (4) To remove an official some cause must exist, such as a neglect of duty, want of capacity, or some act or conduct which evinces an unfitness for the position filled by the officer. He cannot be removed for some trivial reason. "Cause" implies a reasonable ground of removal. State ex rel. v. Sheppard, 192 Mo. 511; State ex rel. v. Walker, 68 Mo.App. 119; McNiff v. Waterbury, 72 A. 572, 82 Conn. 43; Ayers v. Hatch, 175 Mass. 492, 56 N.E. 612; People ex rel. v. Waldo, 147 N.Y.S. 1005, Id. 149 N.Y.S. 965; People ex rel. v. Bingham, 115 N.Y.S. 639; People ex rel. v. McAffer, 195 N.Y.S. 706; People ex rel. v. McKay, 151 N.Y.S. 501; People ex rel. v. McAdoo, 102 N.Y.S. 656; People ex rel. v. Greene, 85 N.Y.S. 866, Id., 89 N.Y.S. 343; People ex rel. v. Baker, 134 N.Y.S. 917, 81 N.E. 776; State ex rel. v. Donohue, 135 N.W. 1030; Matter of Griffin v. Thompson, 202 N.Y.S. 111; State v. Bowden, 101 P. 654; Coolidge v. Bruce, 144 N.E. 397; People ex rel. v. Thompson, 94 N.Y. 451; People ex rel. v. Board of Fire Commrs., 72 N.Y. 445; People ex rel. v. McAdoo, 117 A.D. 438. (a) If the proceedings fail to show that which was necessary to confer jurisdiction, the whole is an absolute nullity. State ex rel. v. Police Commrs., 14 Mo.App. 310. (b) "If an officer be removed, it belongs to the courts to determine the sufficiency of the cause alleged." State ex rel. v. Walbridge, 119 Mo. 395. (5) "When the application for writ of certiorari is applied for and shows absence, excess or abuse of jurisdiction, absence of the right of appeal, and lack of other adequate remedy, it goes as a matter of course." State ex rel. v. Police Commrs., 14 Mo.App. 297; State ex rel. v. Wurdeman, 254 Mo. 569, 163 S.W. 849; State ex rel. v. McPheeters, 178 S.W. 763; Fitzsimmons v. Portland, 102 N.Y. 536; Tibbs v. Atlanta, 53 S.E. 811; State ex rel. v. Morehead, 256 Mo. 683; State ex rel. v. Knott, 207 Mo. 167.

Edgar H. Wayman and Oliver Senti for respondents.

(1) Officer Kennedy was not being tried for a criminal offense. (a) The charge did not have to be drawn with the particularity of an indictment. (b) The specification of the act with which he was charged was sufficient. McNiff v. Waterbury, 82 Conn. 43. (2) The relator, not having applied to the board for permission to file the suit, he is not in a position to complain of the delay or denial of justice which might have resulted from the board's adverse ruling on his application. (a) Had the relator made application to the board for permission to file the suit, the court will presume that it would have acted rightfully on his application. State ex rel. Murphy v. Burney, 269 Mo. 611. (b) The rule did not close the doors of the courts to relator. At most it could only subject a policeman to discipline for its violation in a proper case. (c) Permission of the court must be obtained before a receiver can be sued. Article II, Section 10, is not violated by exempting persons in the military service from suits. Burns v. Crawford, 34 Mo. 330. Or by requiring unliquidated claims against the city to be submitted to the council for audit. Haggard v. Carthage, 168 Mo. 129. Or by defining liability for injuries to fellow servants. Powell v. Sherwood, 162 Mo. 621. The relator accepted the rules of the police board along with the office of patrolman. State v. Bennett, 315 Mo. 1267. (3) Relator cannot urge that he would have violated any rule of the manual by assigning his salary. The record does not contain any such a rule. (4) The rule does not violate Section 7543 or Section 7547, Revised Statutes 1929. (a) Section 7543 does not deal with the discipline of members of the force. (b) Section 7547 has been construed to mean that an officer can be removed from the force, not only for failure to perform police duties, but also for failure to perform the duties of a policeman, one of which duties is to obey the rules of the board, as laid down in the manual. State ex rel. McCormack v. McPheeters, 178 S.W. 761. (5) A rule, authorized by statute and not contrary to the laws of the State, which prescribes the conditions upon which one may be a police officer, does not violate the due process or equal protection clauses of the Fourteenth Amendment. Atkins v. Kansas, 191 U.S. 207, 48 L.Ed. 148. (6) Rules of a board adopted pursuant to statutory authority have the force of laws. Pierce v. Doolittle, 106 N.W. 751, 6 L. R. A. (N. S.) 143. (a) There is no definite rule by which the reasonableness of a law or a municipal ordinance or regulation can be determined. 46 C. J. 308. (b) If a law or ordinance has any reasonable relation to the public welfare, it is valid. St. Louis v. Southcomb, 320 Mo. 865, 8 S.W.2d 1001. (c) If, under any circumstances, a law or ordinance is reasonable, those circumstances will be presumed to exist. Bellerive Inv. Co. v. Kansas City, 321 Mo. 969, 13 S.W.2d 637; Lindsay v. Natl. Carbonic Gas Co., 220 U.S. 61, 55 L.Ed. 369. (d) If the rule which relator violated tends to discourage the filing of suits which hamper the receiving of contributions to aid the unemployed, it has a reasonable relation to the public welfare. (7) A rule may be lawful and reasonable, notwithstanding that in some circumstances its violation may be so trivial that to discharge a police officer who disobeys it might be unreasonable. People ex rel. Devaney v. Green, 85 N.Y.S. 868. (8) The relator cannot, in this proceeding, have adjudicated a claim for salary. State ex rel. Kansas City v. Coon, 216 Mo. 554.

OPINION

Hays, J.

This case comes to the writer by reassignment. It is an appeal from a judgment of the Circuit Court of the City of St. Louis quashing a writ of certiorari issued by that court at the instance of the appellant designated above (relator in that court), to review the record made by the board of police commissioners of the city of St. Louis upon a charge heard by said board as preferred against appellant, a patrolman of the police force of that city.

As respects such charge and hearing, the record proper as made by the board in relation to the same and set up in the return made by its members to the writ (quoted in part and in part stated in substance) is as follows: First, the charge --

"Charge 1. Violating Rule 10, Section 178 of the Police Manual. (Failing to have permission to engage counsel and file a civil action.)

"Specification 1. In this, to-wit: that the said Patrolman Gilbert Kennedy, attached to Third District, did fail to make the proper formal application and receive permission of the Board of Police Commissioners to retain counsel and file an action in court against said board of police commissioners and others to restrain them from asking him to give 10 per cent of his salary toward unemployment relief; the said Patrolman Kennedy having engaged the law firm of Dubinsky & Duggan to file such action, which is scheduled for hearing on June 30, 1932, in the circuit court. All to the prejudice of the good order and discipline of the police department."

A copy of the charge together with notice of this appellant's suspension from office and notice to appear before the board in the afternoon of June 24, 1932, were served on the evening before. On the afternoon so appointed the appellant appeared before the board in person and by counsel. Said charge and specifications were read in their hearing. Thereupon appellant's counsel filed a number of motions, attacking the jurisdiction of the board to proceed, and predicated same upon provisions, specifically designated, of the State and Federal Constitutions. The board denied the motions, heard evidence, concluded the hearing and took the matter under advisement. Subsequently, on August 19, 1932, the board again met in session, the appellant and his counsel appearing, the board found the appellant guilty of said charges and dismissed him from the force, effective as of the day of suspension, to-wit, June 24, 1932.

Hence this proceeding on certiorari, instituted shortly after

I. Under the common-law rule the scope of the review by certiorari is never extended to the merits. The action of the inferior body is final and conclusive on every question except...