State v. Martin

• Decision Date: 21 February 1917
• Docket Number: No. 12318.,12318.
• Citation: 195 Mo. App. 366,191 S.W. 1064
• Parties: STATE ex rel. STICKLE v. MARTIN, Com'r of Street Cleaning, et al.
• Court: Missouri Court of Appeals

191 S.W. 1064

195 Mo. App. 366

STATE ex rel. STICKLE v. MARTIN, Com'r of Street Cleaning, et al.

No. 12318.

Kansas City Court of Appeals. Missouri.

February 21, 1917.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Mandamus by the State, on the relation of William H. Stickle, against D. F. Martin, Commissioner of Street Cleaning and others, to compel respondents to reinstate relator as Deputy Commissioner of Street Cleaning. Judgment for respondents, and relator appeals. Affirmed.

T. J. Madden, of Kansas City, for appellant. J. A. Harzfeld, Hunt C. Moore, Charles M. Blackmar, and A. F. Smith, all of Kansas City, for respondents.

BLAND, J.

In the circuit court of Jackson county, Mo., at Kansas City, appellant brought a proceeding, seeking to mandamus the respondents, officers of the municipality of Kansas City, Mo., to compel them to reinstate appellant in the position of deputy commissioner of street cleaning of said city, and to issue to him warrants for the salary accruing since the time of his discharge. In the lower court the peremptory writ of mandamus was denied, and the relator's petition therefor was dismissed. Thereafter appellant filed a motion for a new trial, which the lower court overruled, and appellant appealed.

The appellant was, on June 6, 1912, and for some months prior thereto, deputy commissioner of street cleaning of Kansas City, Mo. He held his position by virtue of the civil service provisions of the charter of Kansas City of 1909. On said date he was discharged by the commissioner of street cleaning, who gave as a reason therefor that the discharge was made by order of the board of public works. A communication from the board of public works directed the commissioner of street cleaning to discharge appellant "for the good of the service." The undisputed testimony in this case shows that while appellant was in the public service as deputy commissioner of street cleaning he was also engaged in the business of doing various kinds of work, such as putting in foundations, building porches, walks, and steps on private property. Appellant conducted this business through a partnership that he had formed with one Somerville, the latter doing the actual work and appellant financing the business. In pursuance of his private business, appellant secured permits to use the streets and sidewalks of Kansas City for the purpose of storing building materials. These permits were gotten from the office in which he was employed and signed by another clerk therein. The permits were secured by application made by appellant, and as all of them were in practically the same form, we will set out but one:

                        "Kansas City, Mo., April 17, 1911
                

"To the Commissioner of Street Cleaning:

"I hereby make application for a permit to use the street, sidewalk and alley abutting on the property herein described, for the purpose of piling building material, depositing refuse from building, rubbish, etc., at or from No. 3130 Spruce Ave., for a period of 30 days, and if granted, I accept such permit with the understanding that my rights thereunder cease at the expiration of such period, and I further agree that if I fail to perform the requirements of the charter and ordinances of Kansas City, relating to the work to be done under such permit, the commissioner of street cleaning shall have the right to revoke such permit without notice to me.

"In consideration of the granting of said permit I hereby agree and bind myself, my agents, and employés, to use said street, sidewalk and alley, in accordance with all the requirements of the charter and ordinances of Kansas City, Missouri, the requirements of the rules and regulations of the board of public works, and to the satisfaction of the commissioner of street cleaning, and to be responsible for any loss or damage sustained by the city, directly or indirectly, on account of the granting of such permit or the use of such street, sidewalk or alley under such permit, whether such loss or damage is or is...