State v. May
Decision Date | 26 October 1891 |
Parties | STATE ex rel. CANNON et al. v. MAY. |
Court | Missouri Supreme Court |
1. The charter of Kansas City of 1875 conferred upon the council exclusive power over the streets, and provided that the mayor and council might appoint an engineer, among other officers, and such other officers as might be provided by ordinance. By Rev. Ord. 1888, there was created the office of street commissioner, to be appointed by the mayor, to superintend the repairing and cleaning of the streets. The charter of 1889 established the board of public works, and provided that the said board should exercise supervision over the streets, and should employ at least one engineer, and "appoint such additional engineers, clerks, inspectors, assistants, and other persons" as might be necessary; and conferred upon the council the same power over the streets as that given by the charter of 1875. It authorized the council to appoint all officers required by the charter, whose appointment was not otherwise specially provided for, and provided that all ordinances in force at the time the charter took effect, and not inconsistent therewith, should remain in force until altered or repealed by the council. Under the charter of 1875 the engineer's department exercised practically the same power over the streets as was conferred by the charter of 1889 upon the board of public works. The engineer, however, had no authority to appoint or remove the superintendent. The council, by its ordinance No. 268, approved August 2, 1889, defined the duties of the board of public works, established the department of streets under its control, and fixed the salary of the superintendent. Held, that the ordinance of 1888 was not impliedly repealed, and the board therefore had no authority to appoint the superintendent.
2. The ordinance of 1888 provided that the street commissioner should hold his "office for the term of one year;" that it should be the duty of such "officer" to superintend the repairing and cleaning of the streets; and that before entering upon the duties of his "office" he should give bond for $10,000. Held, that the incumbent of the position was an officer, and not merely an employe of the board of public works.
3. Under the charter of 1889, which vested in the council exclusive control over the streets, and expressly provided that the mayor and council should have power to appoint certain officers, and that there should also be such other officers, servants, and agents as might be provided by ordinance, ample authority was given to the council to provide for the appointment of a street commissioner; and the fact that the article in the charter of 1875, authorizing the appointment of such a commissioner, was omitted from the charter of 1889, did not evince an intention to abolish the office.
4. The charter of 1889, art. 3, § 1, giving the mayor and council exclusive power to clean and repair the streets, was not in conflict with article 6, § 10, giving the board of public works power to "supervise" the same; and the mayor and council could create the office of street commissioner, and prescribe his duty as that of superintending the cleaning and repairing of the streets under the supervision of the board.
5. Although quo warranto, and not mandamus, is the proper remedy to determine the title to a public office, particularly when the office is already filled by an actual incumbent exercising the functions of the office de facto, and under color of right, yet, where the relator holds an uncontested title to the office, or his title has been adjudicated and finally established by a competent tribunal, and he is in possession, mandamus will lie to compel the delivery to him by his predecessor of the books and papers belonging to the office.
The facts fully appear in the following statement by GANTT, P. J:
This is an extraordinary proceeding by mandamus, brought by the relators, constituting "the board of public works of Kansas City, and W. L. Sheppard, their appointee as superintendent of streets, against respondent, John May, the superintendent of streets of said city, appointed by the mayor, by and with the consent of the common council of said city, for the possession of certain office furniture and public records. The petition and pleadings are perhaps the best statement of the case, and are substantially as follows:
The petition, in substance, alleges that the city of Kansas City is a municipal corporation, incorporated by special charter under and by virtue of section 16 of article 9 of the constitution of the state of Missouri. That by the provisions of said charter there was established within and for the city an executive department to be known as the "Board of Public Works." That the relators herein, as designated, now constitute the board of public works of the city. That under and by virtue of said charter the common council of the city of Kansas City, by its ordinance No. 268, duly adopted and approved on the 2d day of August, 1889, entitled "An ordinance defining the duties of the board of public works, establishing departments under their control, fixing the number of employes and the salaries of the same," which said ordinance is in words and figures as follows: ...
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