State v. Lucas

• Decision Date: 07 June 1911
• Citation: 139 S.W. 348,236 Mo. 18
• Parties: STATE ex rel. KANSAS CITY et al. v. LUCAS, Judge.
• Court: Missouri Supreme Court

139 S.W. 348

236 Mo. 18

STATE ex rel. KANSAS CITY et al. v. LUCAS, Judge.

Supreme Court of Missouri.

June 7, 1911.

Rehearing Denied July 1, 1911.

1. INJUNCTION (§ 81) — WHEN REMEDY LIES.

A suit by municipal clerks claiming under civil service to enjoin their removal is not a contest for a public office, as affecting the jurisdiction in equity.

2. EQUITY (§ 421) — JURISDICTION — PRELIMINARY ORDERS.

A court of equity has no jurisdiction at a preliminary hearing to order defendants to pay money to the plaintiffs under the pains and penalties consequent on contempt of the order.

3. EQUITY (§ 421) — JURISDICTION — PRELIMINARY ORDERS.

In a suit by municipal clerks claiming under civil service to enjoin their removal, an order requiring delivery of warrants already issued and ready for delivery to plaintiffs was not erroneous as a preliminary order for the payment of money.

4. INJUNCTION (§ 81) — WHEN REMEDY LIES.

Equity can enjoin illegal removal of municipal clerks claiming under civil service.

5. PROHIBITION (§ 28) — APPLICATION FOR WRIT — SCOPE OF INQUIRY.

On application for prohibition against a suit to enjoin removal of municipal clerks claiming under civil service rules, the Supreme Court will not determine whether power to remove exists.

In Banc. Proceeding for prohibition by the State, on relation of Kansas City and others, against Olaf A. Lucas, Judge. Writ denied.

Jno. G. Park and A. F. Smith, for relators. L. H. Waters and Leavel & Hochland, for respondent.

VALLIANT, C. J.

On the petition of relators, a preliminary rule was entered April 25, 1911, addressed to the respondent, one of the judges of the circuit court of Jackson county, requiring him to show cause why a writ of prohibition should not be issued to forbid him taking jurisdiction in a cause pending in his division of the circuit court of Jackson county wherein P. C. Folk and others are plaintiffs and the city of Kansas City and others are defendants. That is a suit in equity. The plaintiffs are clerks in the waterworks department of the city government. Three of the defendants constitute the board of civil service commissioners of that city, one is the assessor and collector of water rates, four compose the board of fire and water commissioners, and one is the comptroller. The petition in that suit states substantially as follows: When the plaintiffs entered into the service of the city as clerks in the waterworks department, there was an ordinance of the city having special reference to employés in that department of the city's service, which is section 1176, Revised Ordinances of 1898, which provides: "That hereafter no person shall be appointed, employed or discharged in any branch of the waterworks service, for or on account of political considerations. That the board of public works and the assessor and collector of water rates, each in respect to the employés in their respective branches of the waterworks service, shall have the right to suspend and discharge employés under their control and direction for cause only; and this right shall be exercised only in the following manner, that is to say: Any employé who has heretofore or shall hereafter serve for such length of time as to determine his efficiency and fitness for any given place, which period is hereby limited to six months, may be suspended by said board and assessor and collector respectively for cause; but the board or collector making such suspension, shall immediately furnish the employé suspended a statement in writing of the cause or causes of suspension, and he shall in all cases be entitled to a hearing before being discharged." The ordinance goes on to prescribe the mode of trial and the consequence of the result thereof. The petition further states that by section 1 of article 18 of the City Charter of 1909 it is expressly provided that "all ordinances regulations and resolutions in force at the time this charter takes effect, and not inconsistent with the provisions thereof, shall remain and be in full force until altered, modified or repealed by the common council; that that ordinance 1,176 was at the time the charter took effect and still is in full force and effect," and its provisions secured to said city in said waterworks service qualified and faithful employés, and provided for said waterworks department a civil service, based on merit, and that said section was not and is not inconsistent with the provisions of said charter relating to civil service, and has not been altered, modified, or repealed by the common council, and that by virtue of the provision of that ordinance the plaintiffs are not amenable to the civil service examination provided by article 15 of the charter. It is also alleged that, on entering the service of the city under the terms of the ordinance, a contract was created between the employé and the city, and, as long as he faithfully performed his duty, he could not be discharged except as provided by the ordinance; that plaintiffs have performed and are still performing their duties as clerks in the waterworks department and are entitled to their pay as such, and it is the duty of the defendant the comptroller to issue warrants therefor on the city treasurer, but that he has refused to do so; that the defendants the board of fire and water commissioners are not under the jurisdiction of the defendants the board of civil service commissioners and have no right to remove the plaintiffs except for cause and in the manner as provided in ordinance 1,176; that the defendants the civil service commissioners have no right to require of the board of fire and water commissioners that they discharge employés to make places for persons whose names have been given them by the board of civil service commissioners; that the defendant the assessor and collector of water rates has a list of persons furnished him by the civil service commissioners, and threatens to put them in the places of the plaintiffs, and will do so unless restrained by the injunction which is prayed; and that defendants the fire and water commissioners will approve the appointments. There are also some statements in the petition designed to challenge the validity of article 15 of the charter, but for the purpose now in view they are immaterial. Plaintiffs pray a temporary restraining order to restrain the defendants from "interfering or attempting to interfere with the plaintiffs in their said positions until a hearing of this cause can be had and upon such hearing a temporary injunction be issued herein which plaintiffs pray may upon a proper showing be made permanent," and for general relief.

On the filing of the petition an order issued restraining the defendants "until the further order of the court from in any manner interfering with the plaintiffs, or either of them, in their positions as clerks in the office of the assessor and collector of water rates of Kansas City, Mo., and from appointing or attempting to appoint any person or persons to the positions of the plaintiffs, or either of them, and from doing any act affecting the positions of the plaintiffs or either of them, or their compensation for their services as such or their right to said positions in said office of the assessor and collector of water rates." The order further directed that the plaintiffs give bond, which was done, and that the defendants appear on March 30, 1911, and show cause why a temporary injunction should not issue. On April 8th there was an amended petition filed which was substantially the same as the original petition with the addition of three new names as plaintiff. On the filing of the amended petition a restraining order like the one above mentioned was made. The parties appeared by their attorneys in court on March 30th, and arguments for and against the granting of the injunction were heard. Counsel for defendants objected to the jurisdiction of the court: First, because a court of equity has no jurisdiction to determine a contest for a public office; second, the ordinance (1,176) on which plaintiffs base their case had been repealed. Affidavits on both sides were filed, and the application for an injunction was taken under advisement. While the matter was so pending, one of the plaintiffs, J. J. McIntyre, filed a petition in the cause stating that the defendant Gus Pearson the comptroller had, since the issuance of the temporary restraining order, refused to deliver to him a warrant for his salary for one-half the month of March, and prayed an order on him to show cause why he should not be punished for contempt as for disobedience of the restraining order.

It is alleged in the petition of the relators herein that on the filing of that petition a citation issued as prayed, and that on the return thereof the court made the following order: "Now this day, this cause coming on for hearing upon the order upon Gus Pearson to show cause why he should not be punished for contempt (of court), it is shown to the court that a warrant of Kansas City for the compensation of J. J. McIntyre, one of the plaintiffs herein, was issued by Kansas City and held by the defendant Gus Pearson, comptroller of said...