State v. Crandall

• Citation: 269 Mo. 44,190 S.W. 889
• Decision Date: 21 October 1916
• Docket Number: No. 19715.,19715.
• Parties: STATE, on Inf. of BARKER, Atty. Gen., v. CRANDALL.
• Court: Missouri Supreme Court

190 S.W. 889

269 Mo. 44

STATE, on Inf. of BARKER, Atty. Gen., v. CRANDALL.

No. 19715.

Supreme Court of Missouri. In Banc.

October 21, 1916.

Error from Circuit Court, Buchanan County; Nat. M. Shelton, Judge.

Information in the nature of quo warranto by the State, on the information of John T. Barker, Attorney General, against U. G. Crandall, to oust respondent from the office of Police Commissioner of the City of St. Joseph. Judgment of ouster, and defendant brings error. Affirmed.

Lucian J. Eastin, William Reiter, and Vinton Pike, all of St. Joseph, for plaintiff in error. John T. Barker, Atty. Gen. (Kenneth C. Sears, Asst. Atty. Gen., of counsel), for defendant in error.

BOND, J.

I. On the _____ day of August, 1916, the Lieutenant Governor, William R. Painter, being then vested with all the authority of the absent Governor, filed in the office of the secretary of state an order removing U. G. Crandall from the office of police commissioner of the city of St. Joseph, setting forth in the order of removal as his reason that he was fully satisfied of the "official misconduct" of the deposed commissioner. Prior to this a motion the Lieutenant Governor telegraphed the commissioner to resign and received no response. Upon the failure of the commissioner to yield his office, the Attorney General filed an information in the nature of a quo warranto praying for a judgment of ouster against him. The circuit court awarded the judgment prayed, from which the defendant sued out a writ of error to this court.

"II. The board of police commissioners is a statutory body lying in the appointment and removal of the Governor upon statutory conditions and for statutory reasons. It is charged with the preservation of peace, prevention of crime, the protection of the rights of person and property, and the preservation of the health of the inhabitants of the cities of the state, and to these ends is given full control of municipal policemen. R. S. 1909, §§ 8772, 8773, 8774, 8778, 8779. The tenure of office of the appointees to the board and the authority of the governor to remove them is contained in certain portions of the statute providing for their qualification, to wit:

"And they shall, except as hereinafter provided, hold their offices for three years. * * * For official misconduct, any of said commissioners may be removed by the Governor of the state of Missouri, upon his being fully satisfied that the commissioner or commissioners charged is or are guilty of the alleged official misconduct." Rev. St. 1909, § 8770.

The only question presented by this writ of error is whether or not this statutory power of removal is one resting, to the extent given, in the discretion of the Governor, or is only exercisable after formal and specific charges, a trial thereof giving an opportunity for the hearing of witnesses and evidence, and a finding of the guilt or innocence of the accused. In brief, whether a police commissioner can be removed by the Governor with or without a trial, provided the Governor is fully satisfied in his own mind of the official misconduct of such officer.

It is of the very essence of the duties of the Governor of the state, as the personal representative and head of the executive department, to provide by fitting agents for the enforcement of its laws, the security of the persons of its citizens, and the protection of their property. No greater responsibility could be imposed under a free form of government than is involved in the performance of these duties; for, unless its laws are respected and obeyed and the property and rights of its people preserved and upheld by its chief executive with all the power given to him under its Constitution and laws, the ends for which the state was organized by the people would cease to exist. Realizing the high responsibility and the correlative duties imposed thereby, the Legislature put in the hands of the Governor the power to maintain peace, enforce the law, prevent crime, and protect property by the appointment of boards of police commissioners, which are given power to create, control, regulate, and remove the members of the police forces in the large cities of the state. The statute clothing the Governor with power to appoint this board of control limits the tenure of office of its members (in the city of St. Joseph) to three years, "except" the Governor shall remove any such appointee upon being fully satisfied of his official misconduct. The Legislature in express terms gave the Governor full power and made it his duty, whenever he was fully satisfied of the "alleged official misconduct" of any police commissioner, to remove him instantly from office, irrespective of his otherwise possible term. The Legislature made a wholly different provision in dealing with the power of the police commissioners to remove members of the police force and permitted that to be exercised only "for cause after a hearing by the board." R. S. 1909, § 8773. The Legislature exhibited great wisdom in thus restricting the power of amotion given to the subordinate board and thereby guarding against abuse or misuse of its functions as might happen if the entire body of the police were subject to arbitrary removal, and, on the other hand, in freeing the hand of the Governor from any other restraint in the management and direction of the board of commissioners appointed by him than his own judgment of their official misconduct formed to "his full satisfaction" by any method sufficient to enlighten a chief executive anxious to discharge with promptness his duty of enforcing the law through the men appointed by him to direct and regulate the entire police force, whose duty it is to suppress disorder, prevent crime, and arrest offenders against the law. The supervisory control of the police force lodged in the Governor in virtue of his power to appoint and remove the board which directs the police has its root in the organic law charging him "to take care that the laws are * * * faithfully executed," which is the first duty imposed upon him as the chief of the executive department of the state. Const. art. 5, §§ 4, 6. The importance of this task and the exigency of the public welfare that its faithful performance should not be delayed or hindered must not be overlooked when considering the application to the exercise of the power of a motion by a Governor of similar principles of law controlling lesser functionaries and boards engaged in the performance of duties not so vitally and immediately essential to the welfare of the state.

III. It needs only to be stated that, where power is given to remove an appointive officer, it must be one which is exercisable either for cause, in which case notice and a reasonable opportunity to be heard are indispensable, or at will, that is, without any other formality than the exertion of discretionary power. And it necessarily follows that, where the statute giving the power expressly authorizes the donee to act at will or discretion, no question can ever arise except as to the fact of the removal. But where the enabling act does not, in terms or by necessary implication grant discretionary power of removal, then recourse must be had to all the sources of statutory interpretation and construction which will render the meaning of the lawmakers clear and enable the court to determine the exact nature of the power given in the particular case.

IV. In this state the rules governing the removal of appointive officers have been discussed by the appellate courts in a series of cases in all of which, by the terms or implications of the statutory power given, the removal could only be for cause after notice and trial. One of the earliest is that of State ex rel. Dennison v. City of St. Louis, 90 Mo. 19, 1 S. W. 757, and related to the removal of a police justice of the city of St. Louis. The charter of that city provided for the appointment of such officers by the mayor, and with reference to their removal provided, in so many words, that it should only be for cause. The court decided that this provision of the charter must be observed before a police justice could be removed. And in a succeeding case, State ex rel. v. Walbridge, 119 Mo. 383, 24 S. W. 457, 41 Am. St. Rep. 663, this court refused to prohibit the mayor of the city of St. Louis from trying certain charges upon which it was sought to remove the president of the board of public improvements, holding that the proceedings in question were in all respects reasonable and in conformity to the provisions of the charter, which specifically conferred the power to remove said officer for cause. 119 Mo. 393, 124 S. W. 457, 41 Am. St. Rep. 663.

The question was also presented to the St. Louis Court of Appeals upon an issue as to the validity of a removal of the superintendent of the poorhouse by the commissioners on charitable institutions of that city, under an authority conferred upon that body by the charter to remove any appointed officer of that institution by unanimous vote and in pursuance of an ordinance reaffirming such charter power and providing "that, before any such removal shall be made, the person accused shall have a full, open and impartial hearing before the Commissioners." It was held the power thus given to the commissioners was one to remove for cause. In discussing the interpretation of the grants of power to remove appointive officers, it was said in that case, in consonance with the preceding decisions in this state and elsewhere, that:

"It is fixity of tenure that destroys the power of removal at pleasure otherwise incident to the appointing power. The reason of this rule is the evident repugnance between the fixed term and the power of arbitrary removal. The effect of this rule is that the right to hold during a fixed term can only be overcome by an express grant of power to remove at pleasure. An inferential authority to remove at pleasure cannot be deduced, since the...