State v. Police Com'Rs

• Decision Date: 24 December 1902
• Parties: STATE ex rel. GOODNOW v. POLICE COM'RS OF KANSAS CITY et al.
• Court: Missouri Supreme Court

71 S.W. 215

184 Mo. 109.

STATE ex rel. GOODNOW v. POLICE COM'RS OF KANSAS CITY et al.

Supreme Court of Missouri.

December 24, 1902.

MUNICIPAL CORPORATIONS—POLICE OFFICERS —REMOVAL—POWERS OF BOARD OF COMMISSIONERS — SPECIAL CHARTER — REPEAL OF PRIOR STATUTE — MANDAMUS FOR REINSTATEMENT —DISPOSITION ON APPEAL.

1. Acts 1874, p. 327, created a board of police commissioners for Kansas City, etc. Section 6 empowered the board to reduce the force as experience might warrant, and to raise such additional force, in emergencies, as the exigencies of the case might demand. It also provided that policemen should be employed for three years, and be subject to removal only for cause, after a hearing by the board. Held, that the board's power to reduce the force covered the dismissal of a patrolman without a hearing before his term expired, and was not confined to the refusal to employ a successor on the expiration of such term.

2. The determination of the necessity for reducing the force was discretionary with the board, and not subject to judicial review, and the fact that it dismissed a patrolman because of the insufficiency of the municipal appropriations would not invalidate its action.

3. Const. art. 9, § 16, empowers cities of over 100,000 to frame their own charters, prescribes the method of their adoption, and provides that such charters shall always be subject to the constitution and laws of the state. Held, that the special charter of Kansas City, adopted in 1889, prescribing regulations for the police department, and, among others (article 11, § 22), that in case complaint be made against policemen they shall be subject to removal only for cause, after hearing, did not repeal or supersede Acts 1874, p. 327, establishing a police force for Kansas City, and granting to the board (section 6) an additional power of reducing the force as experience might warrant; the latter act relating to a governmental duty belonging to the state, and not to a matter of merely local concern.

4. Where, on the review of mandamus by a policeman for reinstatement, the power of the board of commissioners to dismiss appellant is alone in issue, and is determined adversely to him, the proceeding will not be remanded, but will be dismissed, by the supreme court.

Sherwood, Robinson, and Valliant, JJ., dissenting.

In banc. Appeal from circuit court, Jackson county; Edw. P. Gates, Judge.

Mandamus by the state, on the relation of W. H. Goodnow, against the police commissioners of Kansas City. Judgment of the Kansas City court of appeals (80 Mo. App. 206) reversing a judgment in favor of relator, and, in obedience to the supreme court's mandate (54 S. W. 218), certifying the case to the supreme court. Judgment of the court of appeals affirmed, and that below reversed.

The following is the opinion rendered by MARSHALL, J., in division No. 1, and adopted by the court in banc:

This is a proceeding by mandamus, instituted in the circuit court of Jackson county, to compel the defendants to reinstate the relator as a policeman, and to draw a warrant in his favor for salary while he was prevented by defendants from performing his duties as such policeman. The writ was made peremptory by the circuit court. The defendants appealed to the Kansas City court of appeals, where the judgment of the circuit court was reversed, and the court of appeals refused to certify the case to this court. State v. Police Com'rs of Kansas City, 80 Mo. App. 206. There were four other cases of like tenor as this case that were adjudicated in the same way at the same time. Thereupon the relators in all of the five cases obtained from this court a mandamus against the judges of the Kansas City court of appeals, compelling them to certify all of said cases to this court, which was accordingly done; and said cases have been heard by this court, and are now for adjudication here. State v. Smith, 152 Mo. 444, 54 S. W. 218. The record in the case consists of the pleadings, the judgment, the motion for new trial, and the appeal. No evidence is preserved. The petition alleges, substantially, that the board of police commissioners of Kansas City on November 4, 1895, consisted of the mayor and two commissioners; that "said board, then acting for said city, and exercising the authority conferred by law upon it and by article 11 of the charter of Kansas City, adopted at a special election held in said city on the 8th day of April, 1889, and which became a law and went into effect on the 9th day of May, 1889," appointed relator a patrolman of the police force of Kansas City, and duly commissioned him as such, for a term of 2½ years from that date; that relator duly qualified and entered upon his duties and continued in the performance thereof until August 22, 1896, "when the said police commissioners, without authority of law, dismissed and discharged him from his said office"; that he was entitled to receive $70 a month as such patrolman, and was entitled to hold said office for the full term of 2½ years, but said police commissioners, composed of the mayor and two commissioners, "appointees of the governor of the state of Missouri, by authority of law, said board, without authority of law, without notice, without cause, without any charge or complaint whatever, wrongfully and unlawfully dismissed plaintiff, ousted him from and deprived him of his office of a patrolman of the police force, and excluded him from the exercise of the functions of said office, and from having and receiving the emoluments pertaining thereto"; "that under the laws of the state of Missouri, and the charter of Kansas City, Missouri, said board of police commissioners had no right, power, or authority to dismiss and discharge said relator, remove him from his said office, and deprive him of the emoluments thereof, without cause therefor, and without a notice to said relator and a hearing by said board; that said relator was dismissed and discharged without a notice to him, without cause, and without a hearing, by said board, and wrongfully and unlawfully deprived him of his said office, and the benefits and compensation to be realized from the performance of the official functions pertaining thereto, for the residue of his said term"; that relator on September 10, 1897, demanded to be reinstated and paid. The prayer is that the defendants be compelled to reinstate him, and to draw a warrant for his salary while out of office. This action was begun on October 1, 1897.

The portions of the return necessary to be considered in the determination of this case are as follows:

That the defendants constitute the board of police commissioners of Kansas City. That the relator was on May 4, 1894, appointed a patrolman of the police force by the then board of police commissioners, composed of the mayor and two commissioners appointed by the then governor of Missouri, and continued to serve as such patrolman until August 22, 1896, when he was discharged by the then board of police commissioners, pursuant to the following order of said board: "Whereas, the city council has failed and refused to make an appropriation to maintain the police department of this city as it is now constituted; and whereas, the city council has failed and refused to appropriate any money for the payment of the expenses of the department for the months of June and July; and whereas, it is necessary to reduce the expenses of the department so that for the balance of the year the expenses shall be such as to bring the expenses for the whole year within the amount appropriated by the city council, to wit, $150,000; therefore be it resolved by the board of police commissioners that the police force be reduced so as to make the necessary reduction in the cost of maintaining the department, and for that purpose three sergeants and thirteen patrolmen be discharged from the force. And be it further resolved that for the reason above stated, and because the board is satisfied that the following named persons now holding commissions are not proper persons to discharge the duties of police officers, that they be discharged, to wit: W. S. Campbell, Walter Whitsett, William Blockburger, Robert J. Miller, G. W. Longan, S. W. Nichols, John Hobdy, Jerry Hogan, John R. Hayes, E. R. _____, J. T. Wachs, S. E. Saels, W. H. Goodnow, C. L. Knight, S. G. Smith, and F. S. Goodhugh. For the reasons above stated, it is by the board ordered that the above-named persons, and each of them, be, and they, and each of them are hereby, discharged from the police force of Kansas City, Mo." The passage of the above resolution was opposed by Mayor James M. Jones, and the following substitute was submitted by him for the action of the board, and, on vote, was lost: "As a substitute for the resolution offered by Commissioner Fyke, and seconded by Commissioner Johnston, providing for certain dismissals from the police force, it is moved by Commissioner Jones that no such dismissals be made, the force being already inadequate in numbers, but that the pay rolls for June and July be so revised and corrected by the board, and the salaries of the police department be so readjusted, that the same come within the apportionment of $150,000, making $12,255.20 for June and $12,664.73 for July, and for the remaining months of the present fiscal year the following amounts: August, $12,664.73; September, $12,256.20; October, $12,664.73; November, $12,256.20; December, $12,064.73; January, $12,664.73; February, $11,439.12; March $12,664.73; two-thirds of April, $7,762.26,—which amounts, with the $18,041.64 already paid for the last one-third and for May, make the entire total apportionment for the year of $150,000."

"The majority of said board of police commissioners, at the time of the discharge of relator, were confronted with the alternative of either reducing the number of men employed, or reducing the salaries of the policemen by revising and correcting and reducing such...