State v. Brooks

• Citation: 293 S.W. 471,220 Mo.App. 708
• Parties: STATE OF MISSOURI, AT THE RELATION OF MARCUS D. STRAIT, RESPONDENT, v. ROBERT B. BROOKS, DIRECTOR OF STREETS AND SEWERS; HENRY W. KEIL, MAYOR; LOUIS NOLTE, COMPTROLLER; WM. G. BUECHNER, TREASURER; CHARLES HERTENSTEIN, T. H. LOVELACE AND F. A. RENICK, MEMBERS OF THE EFFICIENCY BOARD, APPELLANTS.
• Decision Date: 03 March 1927
• Court: Court of Appeal of Missouri (US)

293 S.W. 471

220 Mo.App. 708

STATE OF MISSOURI, AT THE RELATION OF MARCUS D. STRAIT, RESPONDENT, v. ROBERT B. BROOKS, DIRECTOR OF STREETS AND SEWERS; HENRY W. KEIL, MAYOR; LOUIS NOLTE, COMPTROLLER; WM. G. BUECHNER, TREASURER; CHARLES HERTENSTEIN, T. H. LOVELACE AND F. A. RENICK, MEMBERS OF THE EFFICIENCY BOARD, APPELLANTS.

Court of Appeals of Missouri, St. Louis

March 3, 1927

Appeal from the Circuit Court of the City of St. Louis.--Hon. Victor H. Falkenhainer, Judge.

REVERSED.

Judgment reversed.

Julius T. Muench, City Counselor, and Oliver Senti, First Associate City Counselor, for appellants.

(1) (a) In the absence of charter or ordinance provisions for the reinstatement of a discharged municipal employee, the right of mandamus does not lie to restore such employee to a position from which he was either rightfully or wrongfully discharged. State ex rel. K. C. v. Coon, J., etc., S.W. . (b) The writ of mandamus does not lie unless the relator is clearly entitled to all of the relief sought. State ex rel. Hughlett v. Finley, 77 Mo.App. 213. (c) Where the writ grants more relief than the relator is entitled to, it is a nullity. State ex rel. v. K. C., St. J. & C. B. & Q R., 77 Mo. 143; School District No. 11 v. Lauderbaugh 77 Mo. 190. (2) The right to a municipal office or employment as between two claimants cannot be determined by mandamus. St. Louis County v. Sparks, 10 Mo. 117. (3) The peremptory writ shows on its face that the substantial rights of a third party (Utah Ford) are affected, and said writ therefore should not have issued. State ex rel. McKinnon v. Wolfe, 58 Fla. 523; Rankin v. Noel, 185 S.W 883; U. S. ex rel. v. Edmunds, 5 Wall, 663, 18 L.Ed. 692. (4) The peremptory writ must conform strictly to the alternative mandamus, and is limited as to form by the terms of the alternative writ, and the courts are without power to award the peremptory writ of mandamus in any other form than that affixed by the alternative writ. State ex rel. Millet v. Field, 37 Mo.App. 83; State ex rel. v. Trustees of the Town of Pacific, 61 Mo. 158; State ex rel. v. K. C., St. J. & C. B. R. R., 77 Mo. 143; Ferris on Extraordinary Remedies, page 290; High on Extraordinary Remedies, sec. 548; State ex rel. v. Holliday, 65 Mo. 76; Tapping on Mandamus, 327; Moses on Mandamus, 207; 38 Corpus Juris 932. (5) (a) An employee of a municipal corporation has no vested right in his employment. The municipality may abolish it altogether, or change the duties, term or tenure of it without violating any right of the employee. Primm v. Carondelet, 23 Mo. 22; Magner v. St. Louis, 179 Mo. 495; State ex rel. v. Davis, 44 Mo. 129; Wilcox v. Rodman, 46 Mo. 322; Gregory v. Kansas City, 244 Mo. 523; State ex rel. v. Herman, 11 Mo.App. 118; Butler v. Pennsylvania, 10 Howard (U.S.) 402, 13 L.Ed. 472. (b) The repeal of an ordinance creating an office or position abrogates it ipso facto, unless perpetuated by some other provision. Gregory v. K. C., 244 Mo. 523; Bennett v. Longview, 268 S.W. 786. (6) (a) The charter of the city of St. Louis does not confer on the relator (because he was an employee at the time of its adoption) the right to maintain his position as clerk grade 2 (CC II) until discharged for cause. (b) Persons in the employ of the city at the time of the adoption of its present charter are only entitled to retain their positions until discharged, reduced, promoted or transferred in accordance with the provisions of the charter. (c) The tenure of employment of a person who was in the employ of the city at the time of the adoption of its present charter and who remained thereafter pursuant to the provisions of section 9 of article 18 is subject to the charter and ordinances of the city. Section 15 of the Schedule of the Charter. (d) The charter of the city of St. Louis is its organic law and the courts will take judicial notice of its provisions. Constitution of Missouri, article 9, section 21; St. Louis v. Lange, 131 Mo. 412, 420. (7) (a) Prior to June 16, 1924, a clerk grade 2, (CC II) in both the maintenance and cleaning section and in the permit section of the department of streets and sewers was provided for by ordinance. (Ordinance 30191, Sections 21 and 22. (b) Ordinance 30191 was repealed by Ordinance 33151, effective June 16, 1924, and no provision was made in the latter ordinance for a grade II clerk, in either the maintenance or cleaning section or the permit section of the department of streets and sewers. (8) The motives and intents of a council in passing an ordinance abolishing an office cannot be inquired into by the courts, and where the action of the city council was authorized by law and the council acts within the limits of the discretion conferred upon it by such law, courts will not review its proceedings. Downey v. State, 160 Ind. 578, 73 N.E. 578; Shepard v. Seattle, 59 Wash. 363, 40 L. R. A. (N. S.) 647, 109 P. 1067; Voris v. Seattle, 74 Wash. 199, 4 A. L. R. 187.

Benj. J. Klene for respondent.

(1) (a) "Mandamus is the proper remedy to restore one to a position from which he has been unlawfully excluded." State ex rel. v. Walbridge, 153 Mo. 194; State ex rel. v. Kansas City, 206 App. 17; State ex rel v. Miles, 210 Mo. 127; State ex rel. v. Kansas City, 263 S.W. 516; State ex rel. v. Kansas City, 303 Mo. 74. (b) "It is a doctrine well recognized that one rightfully in an office or position, performing the duties and entitled to the salary thereof, but who has been wrongfully deprived of his place by the illegal appointment of another, may have his remedy in mandamus to secure reinstatement." Spelling on Injunction (2 Ed.), sec. 1576; State ex rel. v. Miles, 210 Mo. 127; State ex rel. v. Kansas City, 303 Mo. 74; Mandamus, 38 C. J., sec. 295, p. 710. (c) "And for payment of salary of which he has been thus deprived." State ex rel. v. Walbridge, 153 Mo. 204; State ex rel. v. Brodie, 177 Mo.App. 382; State ex rel. v. Kansas City, 206 Mo.App. 17; State ex rel. v. Rawlings, 250 S.W. 927; State ex rel. v. Kansas City, 303 Mo. 74. (d) "Regardless of the fact that the place has been filled before suit is brought, mandamus is the proper remedy where a person has been unlawfully removed." Mandamus, C. J., sec. 300, p. 713; State ex rel. v. Walbridge, 153 Mo. 204; State ex rel. v. Kansas City, 206 Mo.App. 17. (2) Relator "was not removed as that term is understood in the law. What was done was not legally done, and, therefore, had no legal effect. Another was assigned to his duties and that other was paid by the city. That was the city's affair, if it chose to take such course, with its attending consequences." Gracey v. St. Louis, 213 Mo. 397; State ex rel. v. Kansas City, 303 Mo. 75. (3) "The legal right to the office carried with it the right to the salary. The board, by its wrongful act, could not deprive him of his legal right." State ex rel. v. Walbridge, 153 Mo. 203; State ex rel. v. Kansas City, 303 Mo. 74-5. (4) (a) "Matters well pleaded by relator in mandamus and not denied by respondents in express terms are admitted to be true." State ex rel. v. Adams, 161 Mo. 349. (b) "A general denial in the return to the alternative writ of mandamus may be disregarded as not a sufficient traverse of the allegation of the writ." State ex rel. v. Broddus, 234 Mo. 331. (c) "Every distinct and material allegation in the writ, if intended to be controverted, must be denied and the traverse must be single, direct and certain. The rules of the common law prevail with respect to pleadings under the Practice Act remain unchanged. " State ex rel. v. Williams, 96 Mo. 13. (d) "Merely making a counter-statement or giving a different version of the matter contained in the alternative writ is not specifically denying such allegations." State ex rel. v. Adams, 161 Mo. 364; Knapp Sterd & Co. v. St. Louis, 156 Mo. 352. (e) "All undenied allegations found in the alternative writ in mandamus stand as admitted. All matters well pleaded by relator which are not denied by respondent in express terms are admitted to be true." State ex rel. v. Riley, 219 Mo. 690. (f) "Every distinct and material allegation in the writ, if intended to be controverted, must be denied; and the traverse must be single, direct and certain." State ex rel. v. Williams, 96 Mo. 13; State ex rel. v. Tramel, 106 Mo. 515. (g) "In determining the question before the court, it is the duty of the court to take into consideration the undenied allegations of the alternative writ." State ex rel. v. Riley, 219 Mo. 690. (h) "In the brief for respondent there is some criticism of the form of the return, the argument being that it does not, with sufficient certainty, state facts to justify the refusal to pay the relator's warrants. The rule of pleading in such case is correctly stated by the learned counsel. A mere general denial is not a sufficient traverse of the material allegations of the writ. The denial must be direct and specific." State ex rel. v. Allison, 155 Mo. 328; State ex rel. v. Broaddus, 234 Mo. 332. To state in a return that "so far as respondent is informed and believes no warrants have ever been drawn for presentation to him for his signature," is no answer to alternative writ. State ex rel. v. Gilbert, 163 Mo.App. 683. It was further held that under the above stated denial that it "stands admitted that warrants had been prepared for the signature of the respondent." State ex rel. v. Gilbert, 163 Mo.App. 683. "Where an alternative writ of mandamus is broader than the law warrants it may be amended and a peremptory writ awarded for so much of the relief as is proper." State ex rel. v. Wurdeman, 183 Mo.App. 28; State ex rel. v. Baggott, 96 Mo. 63; State ex rel. v. Hudson, 226 Mo. 239-264; State ex rel. v. Barker, 254 Mo. 515. "All matters well pleaded by relator which are not denied by respondent...