State v. Shannon

• Decision Date: 04 February 1896
• Citation: 133 Mo. 139,33 S.W. 1137
• Parties: STATE ex rel. CAMERON v. SHANNON, Comptroller.
• Court: Missouri Supreme Court

33 S.W. 1137

133 Mo. 139

STATE ex rel. CAMERON v. SHANNON, Comptroller.

Supreme Court of Missouri. Division No. 2.

February 4, 1896.

MUNICIPAL OFFICERS — WHO ARE — APPROVAL OF BONDS — MANDAMUS.

1. The superintendent of waterworks who is to hold his "office for one year" and give bond

for the faithful performance of his duties is an officer of the city, though he is paid as city employés generally, and may be removed at the will of the board of public works; and he may therefore bring mandamus to compel the approval of his bond.

2. Kansas City Charter, art. 13, authorizes the board of public works to appoint a superintendent of waterworks, with the approval of the mayor and upper house, and the superintendent is thereby required, before taking office, to give a bond, to be approved by the city comptroller. Held that, after issuance by the board of a certificate of appointment of the superintendent, the comptroller cannot, in mandamus proceedings to compel the approval of the bond, justify his refusal on the ground that the consent of the mayor was not given.

3. In mandamus proceedings to compel the approval by the comptroller of an official bond, the comptroller cannot invoke a rule of his office, adopted without authority, requiring the approval by the city counselor of the form of official bonds.

Original proceeding by mandamus on the relation of W. L. Cameron against John H. Shannon, comptroller of Kansas City. Peremptory writ awarded.

Karnes, Holmes & Krauthoff, Frank H. Dexter, and C. O. Tichenor, for relator. H. C. McDougal, C. S. Palmer, and F. F. Rozzelle, for respondent.

BURGESS, J.

This is an original proceeding by mandamus to compel the comptroller of Kansas City to approve the bond of relator, who claims to have been duly appointed to the office of superintendent of waterworks of said city, in pursuance of its charter and ordinances, and by and with the consent of its mayor. The petition avers that the relator, "William L. Cameron, is now a resident of Kansas City, Jackson county, Missouri, where he has lived for several years last past, and that John F. Shannon, respondent herein, is the duly appointed and qualified comptroller of said city, and that said Kansas City is a municipal corporation, duly created and organized, under and by virtue of the provisions of section 16, art. 9, of the constitution of Missouri, and by virtue of the charter adopted by the qualified voters of said city, at a special election held April 8, 1889." By the provisions of section 1, art. 1, and section 1, art. 3, and by the terms of article 13 of said charter, the said city is authorized to operate and maintain a system of waterworks in said city, and by the provisions of said article 13 the board of public works has the control and management of said waterworks, and said board has power to appoint, with the consent of the mayor and the majority of the members of the upper house of the common council, such chief, superintendent, and subordinates as may be necessary for the management and efficient operation of said works, and as may be provided by ordinance. Said city is now, and has been for a long time, in possession of, owning, and operating a system of waterworks.

There was duly enacted by the said common council of said city, and duly approved by the mayor, on the 27th day of April, A. D. 1894, Ordinance No. 5,801, entitled "An ordinance relating to the management and control of waterworks." Sections 8 and 9 of said ordinance read as follows:

"Sec. 8. There is hereby established a department of the board of public works, to be called the `Department of Waterworks.' The head of this department shall be the superintendent of waterworks, who shall be appointed by the board of public works, with the consent of the mayor and a majority of the members of the upper house of the common council. The superintendent first appointed under this ordinance shall hold his office for one year, and thereafter the superintendent shall be appointed for a term of two years. He may be removed at any time by a vote of three-fourths of the members of said board, and in case of a vacancy for any cause, his successor shall be appointed as above provided. Said superintendent shall, before entering on the duties of his position, give bond to the city for the faithful performance of his duties as such superintendent in the sum of ten thousand dollars, with at least two good and sufficient sureties, to be approved by the city comptroller. He shall receive as full pay for his service the sum of three thousand dollars per annum, payable monthly, in the same manner as other city employés.

"Sec. 9. The superintendent of waterworks shall have under his special charge the pumping machinery, conduits, reservoir, water pipes and the operation of the same, the placing and repairing and maintenance of meters, valves, fire plugs, and all other property and appurtenances of the water supply and distribution. He shall superintend the enlargement and extension of waterworks, superintend and direct the laying of pipes, making shut-offs and tapping of mains, and shall perform all duties in relation thereto that may be required of said board, and he shall be under the supervision and direction of said board."

On the 4th day of November, 1895, the said board of public works, duly assembled, passed and declared the following resolution, as appears by the minutes and record kept and preserved by the secretary of said board:

"The board met in special session at nine o'clock a. m.; members present, president Tiernan, Gage, Owen, and Slavens. The board went into executive session. On arising from executive session, it was announced by the president that the board had unanimously adopted the following resolution: Be it resolved by the board of public works of Kansas City, Missouri, that W. L. Cameron be and he is hereby appointed superintendent of the waterworks for the term of one year, subject to the approval of the mayor and the upper house of the common council, pursuant to Ordinance 5,801. Peter H. Tiernan, President. L. C. Slavens, Member. John C. Gage, Member. R. S. Owen, Member."

On the same day, a copy of said foregoing resolution passed and declared by the board of public works, November 4th, appointing William L. Cameron superintendent of the waterworks, and duly attested by the secretary of said board, was by him delivered to Webster Davis, mayor of said Kansas City, for his approval. Thereupon, and on said day, the said Webster Davis, mayor of said city, duly approved the appointment of said W. L. Cameron, made by the board of public works, by marking his approval on the certified copy of said resolution, so delivered to him, which said approval appears thereon, by the following indorsement: "Approved, Nov. 4th. Webster Davis, Mayor." Thereupon, the said Webster Davis, mayor of said city, delivered the said appointment of W. L. Cameron, with his approval indorsed thereon, or caused the same to be delivered, to Peter H. Tiernan, the duly-elected president of the upper house of the common council, and ex officio president of the said board of public works. Thereafter, said appointment was consented to by a majority of the members of the upper house of the common council of said city, in the following manner, to wit:

"On November 22nd, 1895, at a special meeting of the upper house of the said common council, upon motion of Peter H. Tiernan, president and member thereof, the said appointment of W. L. Cameron was confirmed, by six members of the said upper house voting in favor thereof, said six members being Peter H. Tiernan, L. E. Wyne, W. W. Morgan, Frank Philips, Frank J. Shinnick, and George Eyssell; said upper house of said common council consisting of ten members, and said six members being a majority thereof, due record of said proceedings having been made by the said clerk of said city; and on November 23, 1895, the said six members of the upper house of the common council, constituting a majority of the members thereof, as aforesaid, executed and delivered to Peter H. Tiernan, ex officio president of said board of public works, the following writing, consenting to and confirming said appointment of said W. L. Cameron: `The undersigned, constituting a majority of the members of the upper house of the common council of Kansas City, Missouri, do hereby consent to and approve of the appointment of W. L. Cameron as superintendent of water works by the board of public works of said city, we having already signified our consent to and approval of said appointment at the special meeting of the common council held on the 22nd day of November, 1895, in the executive session of said upper house then held. Witness our hands, this 23rd day of November, 1895. [Signed.] Peter H. Tiernan. L. E. Wyne. W. W. Morgan. Frank Philips. Frank J. Shinnick. Geo. Eyssell.'"

The proceedings had at and during the said meeting of the upper house of the common council, and of the members there present, on the evening of November 22d, were adopted and approved by the members of the said upper house of the common council at the meeting duly held on the evening of November 26, 1895. Upon the record and minutes of said meeting appears the following entry, made by the city clerk: "The council met in special session, pursuant to the call of the mayor, the proclamation having been published according to law; all members present, except Huttig and Johnson; and the minutes of the last meeting were approved." On the 4th day of December, 1895, the said board of public works of said city, at a meeting duly assembled, passed and declared the following resolution, as appears by the record and minutes of said meeting, made and kept by the secretary of said board, to wit: "Be it resolved, that the proper certificate of his appointment as superintendent of waterworks be issued to W. L. Cameron, and that he be notified to qualify and take possession of the office."...