State v. Kansas City

• Decision Date: 07 April 1924
• Docket Number: No. 24021.,24021.
• Citation: 261 S.W. 115
• Parties: STATE ex rel. LANGFORD v. KANSAS CITY et al.
• Court: Missouri Supreme Court

261 S.W. 115

STATE ex rel. LANGFORD v. KANSAS CITY et al.

No. 24021.

Supreme Court of Missouri, Division No. 1.

Opinion filed April 7, 1924.

Appeal from Circuit Court, Jackson County; Nelson B. Johnson, Judge.

Mandamus by the State of Missouri, at the relation of Renwick H. Langford, against Kansas City, a municipal corporation, and others. Judgment for plaintiff, and defendants appeal. Affirmed.

John B. Pew, F. M. Hayward, and M. A. Fyke, all of Kansas City, for appellants.

John I. Williamson, Darius A. Brown, and John G. Park, all of Kansas City, for respondent.

SMALL, C. I.

Appeal from the circuit court of Jackson county. This case is a companion to the case of State ex rel. Prior v. Kansas City, 261 S. W. 112, just decided by us. The relator was, on October 1, 1917, duly appointed clerk of the board of public works of said city, under the charter provisions relating to civil service, and was discharged on the 15th day of January, 1920. This suit was instituted June 15, 1921. The pleadings and the evidence on the salient features of the case are in substance the same as in the said Prior Case, except that in this case the return contains the additional allegation that on January 1, 1921, relator was duly appointed deputy sheriff of said county, and ever since then and at the time said, return was filed exercised the duties of said office of deputy sheriff; that said office is incompatible with the position of clerk of the board of public works renders him incapable of discharging the duties of such clerk, and that by accepting said office of deputy sheriff relator resigned, relinquished, and abandoned all claim to the position and salary of clerk of said board of public works. This allegation was put in issue by the reply. The evidence shows that at the time plaintiff was discharged as such clerk, January 15, 1920, his salary was $100 a month, which afterwards, on July 16, 1920, was increased by ordinance to $1,620 per annum; that he was appointed deputy sheriff January 1, 1921, and acted as deputy sheriff at a salary of $125 a month from the time of such appointment to the time of trial. It is not necessary to refer to the other testimony of the relator, because we have said, so far as the issues of this case are concerned, it was substantially the same as the testimony in the Prior Case. This case was decided by the lower court January 23, 1922. There was a special finding of facts and conclusion of law. Judgment was rendered, granting a peremptory writ ordering the relator to be reinstated as clerk of the board of public works and the payment of his salary from the time he was discharged until he should be reinstated. From this judgment the defendants brought the case here by appeal.

The only point raised by appellants in this case, which was not decided adversely to appellants' contention in the Prior Case, is the contention that relator's appointment and acceptance of the office of deputy sheriff on January 1, 1921, and his discharge of the duties of that office up to the time of trial, was incompatible with the office of clerk of the board of public works. The evidence showed that the duties of relator as such clerk were clerical, and the law fixes his duties as deputy sheriff as being to attend to all the duties of a sheriff. In support of appellants' contention that such positions were incompatible, the following cases are cited: State ex rel. v. Walbridge, 153 Mo. 194, 54 S. W. 447; State ex rel. v. Draper, 45 Mo. 355; State ex rel. v. Lusk, 48 Mo. 242. And respondents cite as holding that such offices are not incompatible with each other, State ex rel. v. Bus, 135 Mo. 325, 36 S. W. 636, 33 L. R. A. 616 (court en banc) and Gracey v. St. Louis, 213 Mo. 395, 111 S. W. 1159.

In State ex rel. v. Walbridge, 153 Mo. 194 54 S. W. 447, the relator had been a policeman, whose term was for a fixed period of four years, at a salary of $75 per month, and on January 5, 1892, at his own request, and by order of the board of police commissioners of St. Louis, he was appointed turnkey, whose term was for an indefinite term, at a a salary of $50 per month, and it was held, citing the case of State ex rel. v. Bus, 135 Mo. 325, 36 S. W. 638, 33 L. 3. A. 616, that the two positions were incompatible with each other, and his appointment and acceptance of the position of turnkey terminated his term as policeman, and that his subsequent appointment and acceptance of the office of policeman terminated his office of turnkey. We think that case is distinguishable from this because there, by agreement, there was an exchange of one office for the other, and policemen and turnkeys have some control over and are required to deal with or assist each other. In State ex rel. v. Draper, 45 Mo. 355, it was held that the office of circuit judge and a member of the Legislature could not be held at the same time, because the two offices were incompatible at common law, and, also, the Constitution prohibited any person holding any lucrative office under this state from being a member of the Legislature. In State ex rel. v. Lusk, 48 Mo. 242, the court held that the offices of clerk of the county court and clerk of the circuit court of Cole county were not incompatible, and one person could hold both offices at the same time, because the clerk could act by deputy in one or both courts. But the court added:

"Were the duties necessarily personal, the deduction of counsel would be, sound, but as it is we have no right to pronounce the offices incompatible."

In State ex rel. v. Bus, 135 Mo. 325, 38 S. W. 830, 33 L. R. A. 616, before the court, en bane, the question was most elaborately considered. MacFarlane, J., rendered the opinion, and it was held that the office of deputy sheriff and school director were neither incompatible at common law nor prohibited by the Constitution, and that the test was, not the physical inability of one person to discharge the duties of both offices at the same time, but some conflict in the duties required of the officers. The court said, at page 338 of 135 Mo. (36 S. W. 639):

"The remaining inquiry is whether the duties of the office of deputy sheriff and those of school director are so inconsistent and incompatible as to render it improper that respondent should hold both at the same time. At common law the only limit to the number of offices one person might hold was that they should be compatible and consistent. The incompatibility does not consist in a physical inability of one person to discharge the duties of the two offices, but there must be some inconsistency in the functions of the two—some conflict in the duties...