State v. Bright

• Decision Date: 21 December 1909
• Citation: 123 S.W. 1057
• Parties: STATE ex rel. McENTEE et al. v. BRIGHT et al.
• Court: Missouri Supreme Court

123 S.W. 1057

STATE ex rel. McENTEE et al. v. BRIGHT et al.

Supreme Court of Missouri.

December 21, 1909.

1. PROHIBITION (§ 26) — FILING DEMURRER WITHOUT WITHDRAWING RETURN.

Ordinarily, respondents in prohibition, after making a return, should obtain leave of court to withdraw it before filing any pleading in the nature of a demurrer; but, having filed it without such leave, the court may treat the return as withdrawn, and proceed on the issues made by the last pleading.

2. PROHIBITION (§ 26) — NATURE OF RETURN — DEMURRING AND ANSWERING AT SAME TIME.

A return is in the nature of an answer, and a demurrer and an answer cannot stand at the same time, where they both cover the entire case.

3. PLEADING (§ 212) — WITHDRAWAL, WAIVER, OR ABANDONMENT OF DEMURRER.

If a party demurs and afterwards answers, he is deemed to have withdrawn or abandoned his demurrer.

4. PLEADING (§ 339) — WITHDRAWAL, WAIVER, OR ABANDONMENT OF ANSWER.

If a party answers and afterwards demurs, he is deemed to have withdrawn or abandoned his answer.

5. PROHIBITION (§ 26) — WITHDRAWAL, WAIVER, OR ABANDONMENT OF RETURN.

A motion to dismiss the cause is tantamount in law to withdrawal or abandonment of a return.

6. PROHIBITION (§ 17) — NECESSITY OF FIRST CHALLENGING JURISDICTION OF LOWER COURT.

It is not a hard and fast rule that the jurisdiction of the lower court must be first challenged before a provisional writ can issue in the Supreme Court, and it is unnecessary where such a challenge would have been unavailing.

7. PROHIBITION (§ 1) — NATURE OF REMEDY.

A writ of prohibition must be directed to some judicial officer, or, in other words, its purpose is to restrain judicial, and not legislative, executive, or administrative, action.

8. PROHIBITION (§ 6) — MUNICIPAL IMPEACHMENT PROCEEDINGS AS SUBJECT OF WRIT.

The mayor and city council of a city of the third class, sitting as a court of impeachment, under Rev. St. 1899, §§ 5761, 5790 (Ann. St. 1906, pp. 2931, 2937), and an ordinance passed thereunder, to pass on the final removal of the marshal, suspended on charges preferred by the mayor, is not a judicial body within Const. art. 6, § 1 (Ann. St. 1906, p. 212), but a mere administrative body under a municipal corporation having both statutory and common-law power of amotion delegated to it by the statute, and hence it is not a body to which a circuit court or the judge thereof could address a writ of prohibition.

9. CERTIORARI (§ 21) — REVIEW OF AUTHORITY OF MAYOR AND CITY COUNCIL.

The courts can review the authority of a mayor and city council on writs of certiorari.

10. PROHIBITION (§ 6) — EXECUTIVE OFFICER OF CITY AS SUBJECT OF WRIT.

A writ of prohibition will not lie against the executive officer of a city investigating charges against the chief police officer.

11. PROHIBITION (§ 6) — LAW OFFICER OF STATE, COUNTY, OR CITY AS SUBJECT OF WRIT.

The law officer of the state, county, or city cannot be reached by the writ.

12. PROHIBITION (§ 10) — JURISDICTION OF SUPREME COURT.

A writ of prohibition from the Supreme Court is proper, not only where the lower tribunal has no authority to act at all, but also where, though having general jurisdiction over a particular class of cases, the tribunal has exceeded its jurisdiction in the particular case, and so where a circuit court, with general jurisdiction to issue writs of prohibition, exceeded its power when it directed the writ to an administrative body, the Supreme Court may prohibit its further proceeding.

In Banc. Prohibition by the State, on the relation of P. J. McEntee and others, against H. L. Bright and others. Provisional writ made permanent, and final writ ordered to be issued.

G. M. Pritchett and W. R. Robertson, for relators. Frank L. Forlow and Mooneyham, Shepherd & Crane, for respondents.

GRAVES, J.

This is an original proceeding in prohibition. Relators are the mayor, all the city councilmen, except one, and the city attorney of Webb City, Jasper county, Mo., a city of the third class. Respondents are Henry L. Bright, judge of division No. 1 of the circuit court of Jasper county, Mo., Joseph H. McNeill, marshal of Webb City, and Joseph H. Williams, a councilman of said city, who refused to join in this proceeding.

The history of the case, gathered from the facts pleaded in this action, is about as follows: On April 26, 1909, McEntee, the mayor of Webb City, suspended from office the said McNeill, marshal of said city, for reasons, as in his order stated: "For the reasons that he has been guilty of willful violation of official obligations, culpable official negligence, dereliction of duty, conduct inconsistent with his official character and duty and official incompetency, as is more specifically and fully set out in said charges accompanying this order." Accompanying this order of suspension, which order was duly signed by the mayor, there are 57 specific charges made by the mayor. The charges are thus headed: "Charges Against J. H McNeill as Marshal of Webb City, Jasper County, Mo. I, P. J. McEntee, as mayor of said city of Webb City, Jasper county, Mo., in support of the above suspension of said J. H. McNeill as marshal of said city, and as cause for his removal from office, charge that said J. H. McNeill as marshal of said city is guilty of willful violation of his official obligations; culpable negligence and dereliction of duty; of conduct inconsistent with his official character and duty; and of official incompetency as follows, to wit:" Then follow the 57 specific charges, which cover nearly all imaginable derelictions of duty that could be charged to a city marshal, including a number of fines which had been collected and not accounted for, as well as the collection of fines under color of his office in several cases wherein there had been no proceedings against the parties. Further details are not required at this point. The charges of the mayor thus closed: "I, therefore, P. J. McEntee, as mayor of said city, for the reasons set out, have under and by virtue of the authority in me vested by the ordinances of the said city, and the statutes of Missouri, suspended the said J. H. McNeill from the office of marshal of said city, being convinced of the truthfulness of said charges and desiring the said J. H. McNeill to be removed from the office of marshal of said city, do hereby submit to your honorable body the foregoing charges to the end that you may consent to a final removal from the office of marshal of said city, the said J. H. McNeill. P. J. McEntee, as Mayor of Webb City, Mo."

These charges and order of suspension were presented to the city council on April 26, 1909; the said McNeill having been previously served with copies thereof. At said date McNeill and his attorneys appeared before the council, and time in which to file answers to the charges was requested, and, in compliance with said request, the council adjourned to May, 4, 1909. On May 3d McNeill made a report of fines, or parts of fines, which had been collected in the sum of $112.85, which fines, the report says, were in the hands of a deputy marshal and had not been reported to him. May 4th the council met pursuant to adjournment and resolved itself into a court of impeachment; McEntee being elected president, and L. O. Walker, clerk of said court, and the oath of office being administered to all of them by the circuit clerk of the county. McNeill and his counsel were present and filed an answer to the charges. The witnesses for the city were called and sworn, and by consent the court of impeachment adjourned to May 5th. On May 5th the mayor filed a reply to the answer of the marshal, and testimony was heard. Different hearings were then had on May 7th, 12th, 13th, and 14th; McNeill and his counsel being present at all the dates and requesting adjournments at times. On May 14th McNeill and his counsel, after offering numerous witnesses, requested an adjournment to May 17, 1909, which request was granted.

On May 17th the respondent Bright in vacation of court issued upon the application of McNeill the following order, omitting the caption: "Joseph H. McNeill, relator herein, comes now on this day and presents to this court his petition, praying that a writ of prohibition be issued by this court, and that, pending the hearing of said cause, an order of court be directed to the above-named respondents, to prohibit said respondents and each of them from proceeding any further in a certain proceeding now pending before the city council of Webb City, Mo., sitting as a board of impeachment, wherein the respondents are attempting to remove relator from the office of city marshal of Webb City, Mo.; the object and nature of said proceeding being more fully set out in the petition of relator on file herein. And on motion of the relator herein, and such petition being heard on presentation, and upon reading the affidavit on file herein in support thereof, and the court being fully advised in the premises, finds that said petition is sufficient in law; that the same is supported by persuasive evidence of its truth, and thus being well advised therein, on full consideration thereof, hereby orders that said respondents above named and each of them do appear before this court on the 7th day of June, A. D. 1909, at the hour of 10 o'clock of said day, and show cause why final judgment in prohibition should not be entered in the above-entitled cause as is prayed by relator in his said petition. And the court does further order that in the meantime the said respondents above named and each of them refrain from suspending or attempting to suspend, or from removing or attempting to remove, relator from the office of city marshal of Webb City, Mo., until the further order of this court. Witness H. L. Bright, judge of the circuit court within and for the county of Jasper, state of Missouri, and the seal of said court heretofore affixed, this 17th day of May, A. D. 1909. Henry L. Bright,...