State v. Kansas City

• Decision Date: 13 December 1920
• Docket Number: No. 13625.,13625.
• Citation: 226 S.W. 986,206 Mo. App. 17
• Parties: STATE ex rel. RUNDBERG v. KANSAS CITY et al.
• Court: Missouri Court of Appeals

226 S.W. 986

206 Mo. App. 17

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

No. 13625.

Kansas City Court of Appeals. Missouri.

December 13, 1920.

Appeal from Circuit Court, Jackson County; Harris Robinson, Judge.

Mandamus by the State, on the relation of Charles J. Rundberg, against Kansas City, a municipal corporation, James Cowgill, Mayor, and others, members of the Board of Civil Service, and others. From a judgment directing the issuance of a peremptory writ, respondents appeal. Affirmed.

E. M. Harber, M. A. Fyke, and Francis M. Hayward, all of Kansas City, for appellants.

Darius A. Brown, John G. Park, and Maurice Weinberger, all of Kansas City, for respondent.

TRIMBLE, J.

This is a proceeding in mandamus wherein relator seeks to compel his restoration to the position of mechanical engineer for the city hall of Kansas City, from which, it is alleged, he was illegally removed by the mayor, and to compel the payment of the salary accruing to him during the time he was out of office because of such unlawful removal. Said position is in the competitive class of the classified city service, and is therefore within the "civil service" laws of the city as provided for in article 15 of the city charter. Relator passed the competitive examination held by the civil service board, and was thereupon duly appointed to the position of mechanical engineer of the city hall on November 29, 1910. He immediately entered said position, performed the duties thereof, and received the salary therefor until the 6th day of June, 1918, when, while in the peaceful possession of said position and while faithfully discharging the duties thereof, he was summarily removed therefrom by the mayor of said city, who placed another in charge of said place; and relator has ever since been excluded from said position, has been prevented from performing the duties thereof, and has received no part of his salary since said last-named date.

Section 10 of article 15 of the charter provides, among many other things, that —

"No person in the city's service shall be removed, reduced in grade or salary, or transferred because of political or religious beliefs or opinions of such persons; nor shall any person in the competitive class of the city service be removed, reduced in grade or salary, or transferred without first having received a written statement setting forth in detail the reasons therefor."

Relator alleges that he was never furnished with a written statement setting forth in detail the reasons for said discharge or removal, that no charges of misconduct or failure to perform his official duties were at any time made or filed against him, and that he was removed and discharged because of political beliefs and Opinions.

The return to the writ was in the nature of a demurrer and a general denial together with a few affirmative allegations, not necessary to notice now, except the one alleging relator "was removed from said office or position" on June 6, 1918, and that "on said date another person, to wit, Keiser, was duly appointed to said office or position, who duly qualified and took charge of said office or position, and has ever since said date discharged and now is discharging the duties thereof, and has ever since said date been paid by the city the salary appertaining thereto, and since said date relator has not performed, or offered to perform, any of the duties thereof."

There was in the return no express denial of relator's charges that he was not furnished with a written statement setting forth in detail the reasons for said discharge or removal, that no charges of misconduct or failure to perform his official duties were ever made, and that he was removed and discharged because of political beliefs and opinions. While it is the well-established rule in mandamus that all matters well pleaded by relator and not denied by respondent in express terms are admitted to be true (State ex rel. v. Allison, 155 Mo. 325, 328, 56 S. W. 467; State ex rel. v. Williams, 96 Mo. 13, 18, 8 S. W. 771), yet we need not rely merely upon this rule of pleading in mandamus, since the trial court found that relator was not furnished with a written statement in detail of the reasons for his discharge; also that no charges of misconduct or failure of official duty were at any time made or filed against relator, and that he was removed and discharged because of political beliefs and opinions in direct violation of the prohibition contained in section 10 of article 15 of the city charter. The court also found the other facts hereinbefore stated, and the evidence fully supports the findings.

The trial court thereupon ordered the peremptory writ issued in accordance with the prayer of the alternative writ, and the defendants have appealed.

We cannot agree with defendants that the place or position of engineer at city hall is not within the "civil service" provision of the charter. Section 5 of article 15 (in relation to civil service) provides that the classified service shall comprise all officers and positions in the city service not specially designated in the exempt service, and shall be arranged in two classes, to be designated respectively as the competitive class and the labor class. The place is not among those designated as within the exempt service. Indeed, the method of selection and appointment to the place adopted by the city and its authorities shows that the position ^is considered by it and them to be one within the civil service provisions. But the argument is that there is no provision stating who shall appoint persons to the position of engineer of the city hall, and hence it falls to the mayor to make the appointment, as he is the chief executive officer of the city; and since section 10 of article 15 of the charter, containing the above-quoted provision in reference to the removal of persons in the civil service list, says that "all appointments to positions and employments in the several departments of the city service shall, unless otherwise provided, be made by the respective of such departments, * * * and such heads of departments shall respectively have power to remove or discharge any person holding any office, position or employment in their respective departments," etc., therefore the hereinbefore quoted provision with regard to the removal of persons in the civil service list does not apply to persons appointed by the mayor, since he does not come within the meaning of the term "head of a department." Under the pleadings, it stands admitted that the charter and ordinances provide for the position and employment of a mechanical engineer at the city hall, and it nowhere appears in evidence that the position is a mere de facto place outside of the charter and ordinances of the city, nor is it shown that no provision exists as to who shall make the appointment. " But, even if the charter and ordinances are silent as to who shall appoint the city hall engineer, nevertheless the mayor, in making such appointment, acts as the head of that department, which in fact he is, and in appellant's brief he is' referred to as such. Besides, the provision against removal for political or religious beliefs is general, and is not confined merely to appointments made by the heads of departments. The second paragraph of section 4, art. 15, exempts certain specified places filled by the mayor, but does not exempt all of them. If appointments by the mayor are exempt from, or not subject to, the civil service regulations, why was it necessary to exempt those specifically named therein which were only some of the places to be filled by the mayor?

It is true the next paragraph of section 10, art. 15,...