State v. Kansas City

• Decision Date: 07 April 1924
• Docket Number: No. 24022.,24022.
• Citation: 261 S.W. 112
• Parties: STATE ex rel. PRIOR v. KANSAS CITY et al.
• Court: Missouri Supreme Court

261 S.W. 112

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

No. 24022.

Supreme Court of Missouri, Division No. 1.

April 7, 1924.

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

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

John B. Pew, George Kingsley, and T. Seehorn, all of Kansas City, for appellants.

John 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. Mandamus to restore relator as assistant gas inspector of said city, and to recover salary after he was discharged. The plaintiff was duly appointed November 15, 1910, and discharged June 15, 1019. We have just passed upon all of the questions of law herein involving the construction of the civil service provisions of the Kansas City charter in the case of State ex rel. Hamilton v. Kansas City et al., 259 S. W. 1045, and held that a civil service employee belonging to a competitive class, as was the relator there, and as is relator here, must first be served with a written statement, setting forth in detail the reasons for his discharge, and be given an opportunity to reply thereto and to be heard thereon before he could be lawfully removed from office. In the Hamilton Case we said that said provisions of the Kansas City charter "made the giving to the person affected of a written statement setting forth in detail the reasons, and opportunity `to reply and to be heard thereon, a condition precedent to the exercise of the power" of removal. We held in that case that, because the relator was removed as superintendent of buildings without any such written notice, and opportunity to be heard being first served upon him before such removal and successor appointed to take his place, his removal was void, and mandamus would lie to reinstate him and recover his salary during the period he was not permitted to act. In this case there was no dispute in the evidence that the relator was also removed as assistant gas inspector without any previous notice in writing, setting out in detail the reasons for his discharge, and giving him an opportunity to reply and be heard thereon. Relator testified, and there was no evidence to the contrary, in substance, as follows:

"I am 59 years old. In November, 1910, I applied for position of assistant gas inspector of Kansas City. I submitted to a civil service examination. My rating entitled me to first place on the eligible list. [Here relator introduced in evidence the record of the civil service board verifying his statement.] I received a card from the civil service board showing that I was appointed November 15, 1210. [Card here introduced in evidence.] I showed this card to Robert Goodnow, the chief gas inspector, and he put me to work. My salary the first year was $900 a year. afterwards increased to $90 a month, and still later to $100. My pay stopped June 15, 1919. Prior to that time no written charges in detail had been served upon me. I was never summoned anywhere to attend a hearing of charges against me. The gas inspector, Mr. J. H. Crawford, came to me on the morning of June 4, 1919, and said, `Joe I've got bad news for you.' I said, `What's that?' `Well,' he said, `they stopped your pay, and Brooker is coming in here to take your job.' He said, `I am sorry; but I can't help it.' I had never had any trouble with Mr. Crawford, the' gas inspector. He never said anything to me about my services not being satisfactory. He never complained. I had never had any difficulty with anybody that I know of. The work had been kept up to date. Since June 15, 1919, I have been doing odd jobs, off and on; had no permanent employment.

"Now tell the court, Mr. Prior, what your reason was for not bringing proceedings sooner than you did? [Petition in this case was filed and the alternative writ issued June 20, 1921.]

"I had no money to instigate litigation. Furthermore, there was no reason to suspect there was any chance to get any recompense, unless the case of Charlie Rundberg, which was identical with mine, was settled in his favor. If it had not been, I would not have commenced any action at all."

Plaintiff here introduced the record in the Rundberg Case, which was a similar case (see 206 Mo. App. 17, 226 S. W. 986) brought within 30 days after Rundberg was discharged. Peremptory writ awarded in the circuit court January 8, 1919; affirmed by the Kansas City Court of Appeals December 31, 1920, and writ of certiorari denied by this court in February, 1921. Plaint'ff also introduced a written notice dated April 28, 1921, which was directed to Kansas City and its-mayor and other officers, demanding that relator be reinstated in his position, and that he be paid his salary until his reinstatement; also stating that he held himself ready at all times to perform the duties of his office. Continuing his testimony, plaintiff stated:

"After Mr. Crawford told me I was discharged, I went back every morning for a week to the office, and tendered my services, and Mr. Crawford told me there was nothing doing. I live with my son. I have done very little since my discharge. I worked for the Seaboard Milling Company for a year. My wages were $125 a month. Worked from the fall of 1919 until February, 1921. As assistant gas inspector my duties were to open the office at 8 in the morning and close it at 5 at night; help the deputies test meters; make out inspection tickets; place them on the meters; receive meters; keep the record of such inspections; also record of pressure gauges. My work was inside of the office the latter part of my being there. The question of plumber never was asked in the gas inspector's office."

Counsel for city here produced a letter which relator admitted he received. Said letter was as follows:

"June 13, 1919. Mr. Joseph F. Prior—Dear Sir: You are hereby notified that you are removed and discharged from the position of assistant gas inspector, the position you now hold, for the reason the department is in need of a practical mechanic or plumber in that position, and you are not such practical mechanic or plumber. This discharge to take effect June 15, 1919. Respectfully, M. F. O'Rear, Comptroller, and J. F. Crawford, City Gas Inspector."

The appellants-defendants below introduced no evidence, but at the close of the plaintiff's testimony asked the court to declare the law to be that under the alternative writ and the evidence the alternative writ ought to be quashed. This request was denied. The court found the issues for the relator, and made a special finding of facts and conclusions of law. It rendered judgment, granting the peremptory writ requiring the reinstatement of the relator to his position and the payment of his salary from and after June 15, 1919. Defendants duly appealed to this court after their motion for new trial was overruled.

II. Our jurisdiction in this case arises from the contention that a constitutional question is involved. The defendants, before any evidence was heard, orally demanded a trial by jury, which was denied. The writ of mandamus is a common-law writ and by Statute of 9 Anne, chapter 20, it was provided that the issues of fact in a mandamus case should be tried by a jury. Merrill on Mandamus, § 290. But this state did not adopt the said statute, but only adopted the common law of England and the acts of Parliament prior to the fourth year of James I. R. S. 1919, § 7048. James I reigned 100 years before Queen Anne. So that said Statute of 9 Anne was never in force in this state. By the Revised Statutes of 1855, p. 1261, it was provided that actions for "money only or specific real or personal property must be tried by jury," and that "every other issue must be tried by the court." These provisions have ever since been retained in our statutes. R. S. 1919, §§ 1398, 1399. Our Constitution, section 28, article 2, simply provides: That "the trial by...