State v. McPheeters

• Citation: 178 S.W. 761
• Decision Date: 06 July 1915
• Docket Number: No. 16965.,16965.
• Parties: STATE ex rel. McCORMACK v. McPHEETERS et al., Board of Police Com'rs.
• Court: United States State Supreme Court of Missouri

178 S.W. 761

STATE ex rel. McCORMACK v. McPHEETERS et al., Board of Police Com'rs.

No. 16965.

Supreme Court of Missouri, Division No. 2.

July 6, 1915.

Error to St. Louis Circuit Court; W. B. Homer, Judge.

Application of the State, on the relation of Thomas J. McCormack, for a writ of certiorari directed to Samuel B. MePheeters and others, composing the Board of Police Commissioners of the City of St. Louis, Mo. Judgment for defendants, and relator brings error. Affirmed.

This proceeding was begun by an application of the state ex rel. Thomas J. McCormack, for a writ of certiorari to be directed to Matthew G. Reynolds, John A. Laird, Otto L. Teichman, Hobart Brinsmade, and Frederick H. Kreisman, composing the board of police commissioners of St. Louis. Later A. B. Woerhide succeeded Reynolds, and was substituted in his place as defendant. The circuit court issued an order to defendants to show cause why the writ should not issue. There was a demurrer to the petition on the ground that it did not state facts sufficient to entitle the relator to the relief prayed for. That demurrer was sustained, and, relator declining to plead further, judgment went against him. He has appealed. Siace the appeal was taken, the personnel of the board of police commissioners has changed, and, by written stipulation, Samuel B. Mcleeters, Charles P. Williams, Thomas F. Moffitt, and Jeremiah J. Sheehan were substituted herein in place of their predecessors in office as such commissioners. The amended petition for the writ of certiorari alleged the existence of said board of police commissioners, the appointment of relator as a lieutenant of police on September 12, 1907, and his subsequent qualification as such; that on July 5, 1910, said board caused to be served upon relator written charges and specifications as follows:

"Charge 1. Violating section 1, art. 20, of the St. Louis Police Manual (conduct unbecoming an officer):

"Specification 2. In this: That the said Lieu, tenant Thomas J. McCormack, being a member of the executive committee of the St. Louis Police Relief Association, organized for the purpose of accumulating a fund for the payment of sick, veteran, and death benefits to members of the Metropolitan police force of the city of St. Louis, during the year 1908, which said executive committee, by and with the consent and approval of the board of police commissioners of the city of St. Louis, authorized and held an entertainment at the Forest Park Highlands, in the city of St. Louis, for the specific purpose of raising funds for said association, and, further, the said Thomas McCormack, having been specially permitted by his superior officers to attend said entertainment as a part of his duties as a member of said police force, did, on or about June 22, 1908, and while said entertainment was in progress, and while performing his duties as aforesaid, receive and accept from one John M. Healy, secretary of said association, the sum of $10, well knowing that said sum of money had been taken from the receipts from said entertainment and from funds to which said association was or would be entitled, and well knowing that the disbursement of said sum of money had never been properly authorized by the executive committee of said association.

"Charge 2. Violating section 3, art. 18, of St. Louis Police Manual (receiving and accepting money without the permission of the board of police commissioners).

"Specification 1. In this: That the said Lieutenant Thomas J. McCormack did, on or about June 22, 1908, receive and accept the sum of $10 from one John M. Healy, secretary of the St. Louis Police Relief Association, without having made application to the honorable board of police commissioners requesting permission so to do.

Said petition then sets out in hæc verba the provisions of the police manual mentioned in said charges, and adopted by said board of police commissioners. Those provisions are such as to prohibit the acts charge against the defendant. Said petition stated that said board of police commissioners, on July 11, 1910, tried relator on said charges, found him guilty, and made its order removing him from said office as lieutenant of police and discharging him from said police force, and that such trial and said order of removal and discharge were without any authority of law, and that said board was wholly without jurisdiction to hold cognizance of said charges and specifications; that petition also alleged that, even if said board had jurisdiction to try said charges and specifications, the evidence was not sufficient to support the finding of guilty by said board.

George B. Webster, of St. Louis, for plain tiff in error. William E. Baird and Everett Paul Griffin, both of St. Louis, for defendants in error.

ROY, C. (after stating the facts as above).

I. Relator contends that when the circuit court issued its order and notice to the board of police commissioners to show cause why the writ of certiorari should not issue, it thereby assumed jurisdiction of the cause, and that it was then bound to dispose of the cause, first having the record brought up on the writ of certiorari....