State ex rel. Rife v. Hawes

• Citation: 76 S.W. 653,177 Mo. 360
• Parties: THE STATE ex rel. RIFE v. HAWES et al., Appellants
• Decision Date: 03 November 1903
• Court: Missouri Supreme Court

76 S.W. 653

177 Mo. 360

THE STATE ex rel. RIFE v. HAWES et al., Appellants

Supreme Court of Missouri

November 3, 1903

Appeal from St. Louis City Circuit Court. -- Hon. S. P. Spencer Judge.

Reversed.

C. W Bates and Wm. F. Woerner for appellants.

(1) Relator, if he ever had any right, can not now recover because the facts show that he and his assignors acquiesced in the police board's orders of dismissal, considered the same final, and abandoned any claim they might otherwise have had. This is shown by the failure to demand any salary, or to offer to perform any services, or to take any legal steps for reinstatement, for a great length of time, and by retiring voluntarily under the half-pay provisions of the police pension law, and taking active part in the attempt to uphold the validity of that law. If it was not the purpose of relator and his assignors to abandon their claims for salary then they should now be estopped from asserting the same. They should not be permitted to stand passively by for years while others fill their places and draw their pay, when relators knew that appellants and the city of St. Louis relied on the validity of their dismissals, and that timely action would have prevented double payment. Such laches should surely prevent recovery. High, Extr. Rem. (3 Ed.), sec. 269; Taylor v. Board, 57 N. J. L. 376; Clarke v. Jersey City, 42 N. J. L. 94; Byrnes v. St. Paul, 78 Minn. 205; Phillips v. Boston, 150 Mass. 491; Hagan v. Brooklyn, 126 N.Y. 643; State v. Finley, 74 Mo.App. 213; People v. Seneca Common Pleas, 2 Wend. 264; People v. Board of Police, 26 N.Y. 316; People v. Board, 158 N.Y. 125; Gray v. Saginaw, 49 Mich. 628; Selby v. Portland, 14 Ore. 250; Gorley v. Louisville, 104 Ky. 379, s. c., 47 S.W. 265; State v. Police Commissioners, 80 Mo.App. 221. Especially should these facts bar relief in this case because the city of St. Louis, which would be called on to pay relator, was compelled to pay the new men on the warrant of the board, without having a legal right even to protest, and the plaintiffs and defendants should not be permitted to make it pay again. State ex rel. v. Mason, 153 Mo. 23 (giving the city no option but to pay as the board directs). Byrnes v. St. Paul, 78 Minn. 205; Phillips v. Boston, 150 Mass. 491. (2) Relator is clearly barred by limitation. More than five years had elapsed since the dates of the respective dismissals (in one case, that of Blair, over five and onehalf years) when the original alternative writ was asked for, so that claimants were then barred. Their salary was payable monthly, hence the right to recover, if any, was complete, at the latest, at the end of each month after they were discharged, without waiting for the end of the alleged term. Their claims not being running accounts, at least so much thereof was barred as was over five years old when suit was first filed, and that portion at least should have been disallowed. Butler v. Kirby, 53 Wis. 192; Miller v. Cinnamon, 168 Ill. 452; Harrison v. Hall, 8 Mo.App. 167; Estes v. Shoe Co., 54 Mo.App. 551; Chadwick v. Chadwick, 115 Mo. 586; 19 Am. and Eng. Ency. Law (2 Ed.), 209. Limitation may be pleaded in a mandamus proceeding. People v. Chapin, 104 N.Y. 102; High, Extra. Rem. (3 Ed.), secs. 30b, 355; Merrill on Mand., sec. 314. (3) The police board had a right to drop relator and his assignees from the force in the manner it did, and its action can not be made the subject of complaint. None of the officers were ever re-appointed or re-commissioned for a new term after the expiration of the term for which their appointments were made. At the time of dismissal each had become a mere hold-over or locum tenens of the position, subject to discharge at the pleasure of the board. Retention after the four years' term, for a day or a week, without affirmative action by the board, could hardly be claimed to operate as a re-appointment. Mere retention for a longer time did not effect a different result, and this even without the added consideration that such commissions as were issued (1870, 1876, 1884) are expressed to be for "four years and until his successor be duly appointed and qualified, unless otherwise ordered." State ex rel v. Stonestreet, 99 Mo. 361; State ex rel. v. Walbridge, 153 Mo. 200; R. S. 1899, sec. 8847; Const., art. 14, sec. 5. (4) (a) Even if the police board acted irregularly and unauthorizedly in dropping the relator and his assignors, and many others from the rolls, and appointing others in their places (so as to keep the full complement of men allowed by law on the force), yet, acting in good faith, such proceedings were not absolutely void, so that they could be totally disregarded in law. Such acts could perhaps under such circumstances be corrected by timely legal proceedings for reinstatement, but the right to be reinstated of itself implies necessarily that the officers were no longer in the position, else they could not be reinstated. The right to appoint was at all times limited to the number of police whom the board actually had acting on the force, and it follows that if the said dismissals were all void, so that the officers continued in law to be policemen and entitled to pay, then the new appointments of all the patrolmen to fill their places were also void, because in excess of the number authorized to be appointed by law, R. S. 1889, p. 2193, chap. 29, secs. 6, 9, 20. In fact, under the nullity theory the old appointees are even now on the force, since they had, as they claim, a legal right to preferment which they have not lost, and the acting officers are usurpers. (b) At all events, the number of places being limited, there could not be two sets of officials filling the same positions at the same time. If the old ones were, the new ones could not be, in office. Such a result, involving as it would the whole police force of the city of St. Louis in inextricable confusion, and thereby endangering its efficiency to protect the citizens, shows the necessity of ascribing to the bona fide acts of that board at least sufficient vitality to have made the new policemen de facto officers, entitling them to the pay they received for their services, and effecting a corresponding de facto removal of the men in relator's attitude, so that in the interval after dismissal and before application for reinstatement they are not entitled to collect pay as if they had never been dismissed. This being the situation, mandamus is not the proper remedy, and relator's assignors should first establish the right to their offices by quo warranto against the incumbents. State ex rel. v. Commissioners, 80 Mo. 221; State ex rel. v. Gasconade Co. Court, 25 Mo.App. 450; Gorley v. Louisville, 104 Ky. 372; Selby v. Portland, 14 Ore. 243; Lee v. Mayor, 40 A. 663; State ex rel. v. Clark, 52 Mo. 508.

Joseph Wheless for respondents.

(1) An appointment to an office, or a reappointment, needs no formal act or ceremony. It may be by parol, or in any way that signifies such intention. There need be no formal record made of it. The fact is all that is requisite. People ex rel v. Commrs., 70 N.Y. 521; Kiley v. Forsee, 57 Mo. 396; Keely v. Sanders, 99 U.S. 441; 19 Am. and Eng. Ency. Law, p. 436; People ex rel. v. Murray, 70 N.Y. 521; People ex rel. v. Board, 26 N.Y. 316; State ex rel. v. Commrs., 14 Mo.App. 305, s. c., 88 Mo. 144. (2) The meaning and force and effect of this provision of the St. Louis Police Law are very clearly adjudicated in the Campbell case, supra. But such provisions, in regard to "preference for appointment" are not peculiar to our police law; they are an important feature of the policy of the civil service laws of several States, and have received settled and authoritative construction in many cases. The statutes of several States provide that "preference for appointment" shall be given ex-union soldiers; and these provisions are held to confer a distinct right and impose a distinct duty, which may be enforced by mandamus. People ex rel. v. Bardin, 7 N.Y.S. 123; People ex rel. v. Police Board, 51 Hun 345; People ex rel. v. Police Board, 52 Hun 464; People ex rel. v. Department, 53 Hun 141; People v. Wallace, 55 Hun 149. Aside from the express and authoritative decisions of the several foregoing cases, establishing the meaning and effect of the "preference for reappointment" clause of the police law, the general principles of statutory construction demand that it be given full force and effect. It is not an idle form of words; it means, and was intended by the Legislature to mean something; and it means just what it says -- "the policemen whose service has been faithful, shall have preference for reappointment." This is what it means, and it is mandatory. People ex rel. v. Angle, 109 N.Y. 564; Riddick v. Walsh, 15 Mo. 536; St. Louis v. Lane, 110 Mo. 254; Hicks v. Jamison, 10 Mo.App. 35. (3) Defendants lay much stress upon their assumption that the relators, after the expiration of their first terms, were "mere hold-overs or locum tenens, subject to be dismissed at the pleasure of the board." This is not at all true, in fact or law. The two cases cited by defendants in this connection, the Stonestreet case and the Chapman case, do not at all support any such contention as made in these cases; but on the contrary go very far and very strongly to win the cases made by relators. In the Chapman case this court said, "holdover can not be assumed." (4) "The fact that the relator, after he was wrongfully and without warrant of law discharged from his position as policeman, and was thereby and thereafter prevented from discharging the duties of that position, and did not in fact discharge those duties or offer to do so, affords no ground for denying him his salary, and the court committed no error in awarding him a...