State v. McDonnell

• Decision Date: 09 November 1925
• Docket Number: No. 15424.,No. 15425.,15424.,15425.
• Citation: 280 S.W. 66
• Parties: STATE ex rel. BROWN v. McDONNELL, Mayor, et al. STATE ex al. BARNETT v. SAME.
• Court: Missouri Court of Appeals

280 S.W. 66

STATE ex rel. BROWN v. McDONNELL, Mayor, et al.

STATE ex al. BARNETT v. SAME.

No. 15424.

No. 15425.

Kansas City Court of Appeals. Missouri.

November 9, 1925.

Certiorari Denied January 23, 1926.

Original suits in mandamus by the State, at the relation of Claude Brown, and at the relation of J. E. Barnett, against Emmett McDonnell, Mayor of the City of Columbia, and others. Peremptory writ granted.

See, also, 274 S. W. 965.

McBaine & Clark, Jas. E. Boggs, and Paul M. Peterson, all of Columbia, for relators.

Howard Major and Dinwiddie & Sapp, all of Columbia, for respondents.

ARNOLD, J.

These are original suits in mandamus instituted in this court to compel respondents, as mayor and councilmen of the city of Columbia, Mo., to pay the relators their salaries as officers of said city.

The two cases involve identical issues; they are briefed and argued together, and will be jointly treated in this opinion. In each case an alternative writ of mandamus, returnable September 21, 1925, was issued by this court. In each a return was made by respondents, and it was deemed necessary to appoint a commissioner to take testimony. Hon. North Todd Gentry of the Columbia bar was agreed upon as such commissioner, and, under stipulations, testimony was taken by him in both cases. The commissioner also made and filed his findings of fact. In the Brown case the proceeding is to compel respondents to pay Brown his salary as chief engineer of the water and light department of the city of Columbia, in the sum of $2.998.07, being the total amount of the salary claimed by him from July 14, 1924, to July 14, 1925. In the Barnett case the relator seeks to compel respondents to pay him his salary as secretary of the water and light department of said city from July 12, 1924, to July 14, 1925, in the total sum of $2,117.40.

On July 2, 1924, Emmett McDonnell, mayor of the city of Columbia, instituted quo warranto proceedings against relators to oust them from their offices respectively as chief engineer and secretary of the water and light department of said city. These suits were tried jointly in the circuit court of Boone county on July 9, 1924, and a judgment of ouster was entered against both Brown and Barnett. There was an appeal to this court from the judgment in each case, and on June 15, 1925, this court reversed the action of the trial court in both cases. State ex inf. Hulen, Pros. Atty., ex rel. McDonnell v. Brown (Same v. Barnett) 274 S. W. 965. On June 29, 1925, a motion for rehearing was overruled in each case, and the mandate was filed with the circuit clerk of Boone county. Pending appeal to this court in the quo warranto suits, the relators were removed from their respective offices, and no salary was paid them during this period. After they prevailed in this court, and upon refusal of payment of said salaries, the petitions in mandamus, as above indicated, were filed in this court, and alternative writs accordingly were issued.

From the findings of fact by the commissioner, adduced from the evidence, we find the following:

J. E. Barnett was appointed to the office of secretary of the water and light department of said city on April 17, 1922, by James Gordon, then mayor. Claude Brown was appointed chief engineer of said department on June 4, 1923, by Emmett McDonnell, mayor. Both qualified, and commissions were regularly issued.

Emmett McDonnell has been the duly elected and qualified mayor of the city of Columbia since the general election in 1923, and is now such mayor. The other respondents are the duly elected councilmen of said city. On June 2, 1924, Emmett McDonnell, as mayor and also in his individual capacity, caused to be instituted in the circuit court of Boone county the quo warranto proceedings above referred to in the name of the state of Missouri, ex inf. Ruby M. Hulen, prosecuting atsecretary, at the relation of Emmett McDonnell, individually, and as mayor.

The findings of the commissioner recite the facts relative to said ouster suits, the judgments of ouster entered, the appeal to this court, and that there was a bond filed in each case, but that the cirtuit court ruled there could be no supersedeas bonds pending appeal which would suspend an ouster in quo warranto proceedings. Upon service on them of the certified copies of the judgments of ouster, Barnett, on July 12, 1924, and Brown, on July 14, 1924, in obedience to the terms of said judgments, awaited the result of the appeal to this court. In the opinion of this court on appeal the judgment of the Boone county circuit court in each case was reversed, annulled, and for naught held and esteemed, and it was ordered that said appellants be restored to all things lost to them by reason of said judgments.

It was agreed by counsel that the furnishing of a bond for appeal by Brown and Barnett did not act as a supersedeas, and that, if it was insisted that the offices be relinquished, it was agreed by counsel for Brown and Barnett that the services of the sheriff would not be necessary to remove them. Upon the service of a certified copy of the judgment of ouster upon Barnett on July 12, 1924, and upon Brown on July 14, 1924, each discontinued the performance of the duties of his office, and one R. H. Gray was appointed by the mayor as secretary of the water and light department, and assumed the duties thereof, on said July 12, 1924; and by similar appointment one A. D. Donner assumed the duties of chief engineer on July 14, 1924, until the next meeting of the council.

The findings of fact state that neither Brown nor Barnett voluntarily relinquished or surrendered his office. They discontinued the performance of their respective duties in obedience to the judgment of ouster, and awaited the result of the appeals.

On July 21, 1924, being the next regular meeting of the city council after the judgment of ouster was entered, the mayor appointed R. H. Gray secretary and M. R. Fawks chief engineer of the water and light department; both nominations failing of confirmation. And on July 22d the mayor made interim appointment of R. H. Gray as secretary and A. D. Donner as chief engineer, these appointments to hold until the next regular meeting of the council; such meetings being held twice each month.

No other attempt was made by the mayor after July 22, 1924, when the interim appointments were made, to fill said offices until April 20, 1925, on which date the mayor appointed A. D. Donner chief engineer and R. H. Gray but both appointments failed of confirmation by the council. Barnett and Brown resumed their respective offices on July 14, 1925, after reversal by this court of the judgements of ouster, and on said date the mayor again, at a regular council meeting, appointed Donner chief engineer and Gray secretary, respectively, and again both appointments failed of confirmation.

The council regularly paid Donner for the services performed by him at the rate of $275 per month from the date he assumed charge on July 14, 1924, until July 1, 1925, but was not paid a salary for the month of July, 1925. Gray was paid a salary of $200 a month from July 12, 1924, until July 1, 1925, but was not paid from July 1 to 14, 1925. All payments of salary were by ordinance.

The members of the council were aware that neither Donner nor Gray had been appointed to the respective offices held by them, but the members believed, since these men were doing the work, they should be paid therefor. They knew, also, that by the judgments of ouster in the quo warranto suits that Barnett and Brown were precluded from performing said duties. They also knew that Barnett and Brown were prosecuting their appeals from said judgment of ouster. It appears there was some discussion in the council at its meeting on July 21, 1924, relative to paying the salaries of Donner and Gray to the effect that the city might be called upon to pay Brown and Barnett also, if they prevailed on the appeal.

Some members of the council testified that it was necessary to have some one perform the duties of the offices, and that some one would have to be paid, even though it developed later that the city would be required to pay Brown and Barnett. Others of the council testified that they thought Brown and Barnett could not recover their salaries in case they prevailed on the appeals, because they bad not performed the work. The council members did not obtain the advice of counsel as to the legality of the payments made to Donner and Gray, or as to the probability of being required also to pay Brown and. Barnett.

The water and light plant of Columbia is of great value, and it was necessary to have an engineer to supervise and have charge of it, and also to have some one to perform the duties of secretary, especially to collect the accounts and to handle the funds of the plant during the time when Brown and Barnett were precluded from...