State v. Trimble

• Decision Date: 13 July 1927
• Docket Number: No. 27391.,27391.
• Citation: 298 S.W. 833
• Parties: STATE ex rel. KANSAS CITY v. TRIMBLE et al., Judges.
• Court: Missouri Supreme Court

298 S.W. 833

STATE ex rel. KANSAS CITY v. TRIMBLE et al., Judges.

No. 27391.

Supreme Court of Missouri, in Banc.

July 13, 1927.

Motion for Rehearing Denied September 27, 1927.

Certiorari by the State on the relation of Kansas City, a municipal corporation, against Francis H. Trimble and others. Judge of the Kansas City Court of Appeals to quash opinion for conflict with another decision. Opinion and record of respondents quashed.

John T. Barker, City Counselor, and E. F. Halstead, Marcy K. Brown, Jr., and William H. Allen, Asst. City Counselors, all of Kansas City, for relator.

John I. Williamson and Darius A. Brown, both of Kansas City, for respondents.

ATWOOD, J.

The case of State ex rel. P. W. Lindsay, Respondent, v. Kansas City, Mo., a Municipal Corporation, et al., appellants, is here in response to our writ of certiorari issued in the above-entitled cause. It is a proceeding in mandamus commenced in the circuit court of Jackson county, Mo., whereby Lindsay, a general clerk in the competitive class of the civil service, seeks restoration to his position in the city treasurer's office of Kansas City, Mo., from which he claims to have been illegally discharged on August 31, 1922, reinstatement upon the pay roll of said office, and the performance of the requisite steps for payment of the compensation claimed for the period he was excluded by reason of such illegal discharge. On July 25, 1924, the circuit court rendered judgment in favor of relator and "ordered the issuance of a peremptory writ restoring relator to the position of general clerk upon the pay roll of defendant city, and found the amount of relator's compensation due thereunder to be $3,071.25," which judgment was affirmed by respondents herein on April 5, 1926.

Relator contends that the opinion of respondents in said cause "necessarily held that there was a right of restoration under the charter of 1908," and is therefore in conflict with that part of the opinion in Gregory v. Kansas City, 244 Mo. loc. cit. 547, 149 S. W. 470, which holds that the charter of 1908 contains no provision "for a reinstatement of discharged employees." We do not think respondents' opinion necessarily held that there was a right of restoration under the charter of 1908. It might well be that the holding is grounded in a common-law right. Even though the charter provides no remedy for a private wrong, it does not follow that the person wronged cannot be restored to that of which he was unlawfully deprived. In such case the common-law method of redress is impliedly given (Endlich on the Interpretation of Statutes, §§ 463, 464), and that method is mandamus (State ex rel. Guion v. Miles, 210 Mo. 127, 172, 109 S. W. 595; State v. Walbridge, 153 Mo. 194, 54 S. W. 447; Spellman on Injunctions [2d Ed.] § 1576; 26 Cyc. 260). This opinion is not in conflict with the above-cited portion of "the Gregory opinion.

It also follows from what we have just said that the remedies provided in the charter of 1908 were not exclusive, and the opinion of the Court of Appeals in so holding does not conflict with the opinion in the Gregory Case.

Relator next insists that the opinion of the Court of Appeals necessarily held that the provisions of section 125 of the Charter of Kansas City, Mo., adopted February 24, 1925, were not effective, and that such holding conflicts with prior controlling decisions of the Supreme Court. The portion of the opinion at which this objection is leveled is as follows (italics ours):

"it is also urged that, if relator is not entitled to all the relief directed in the alternative writ—i. e. reinstatement in the position of general clerk and restoration to the pay roll—he is entitled to no relief in this action; that the peremptory writ must follow the alternative writ. We hold that relator is entitled to both."

Section 125 of the present charter of Kansas City, adopted February 24, 1925, is as follows:

"No person claiming to have been unlawfully removed or discharged from any office or position in the competitive class of the civil service prior to the first day of January, 1925, as the same existed under the provisions of the charter of Kansas City, adopted August 4th, 1908, shall, in any event, be entitled to restoration to said office or position after February 24th, 1925, nor as such officer or employee, be entitled to any salary or compensation accruing after February 24th, 1925.

"The fact that any person may have ceased the actual performance of the services or the discharge of the duties of any position by reason of any unlawful or invalid order of or attempt at removal or discharge shall constitute no exception to the provisions of this section. The provisions of this section shall take effect upon the adoption of this charter."

Bearing in mind that the opinion of the Court of Appeals was rendered on April 5, 1926, more than a year after the effective date of above charter section 125, it is apparent that the opinion treats this section as not effective. Section 488 of the charter declares that the charter shall be "a public act and all courts shall take judicial notice thereof." Whether called to their attention or not, respondents were bound to take judicial notice of the existence and effective date of the above charter provisions, section 125. It is nowhere mentioned in the opinion, and we can think of but two theories on which respondents might have treated it as not effective, namely, that it was invalid or that it did not apply because of sections 7061, 7063, 7065, and 8861, R. S. 1919. If respondents assumed to treat it as unconstitutional, they exceeded their own constitutional powers, and in this respect their decision would contravene numerous controlling decisions of the Supreme Court. The meaning of section 125 is so clear that he who runs may read, and, as to its constitutionality, validity, and effect, we said, in State ex rel. Otto, Atty. Gen., v. Kansas City et al., 310 Mo. 542, loc. cit. 573, 574, 276 S. W. 400:

"In objection numbered 15 relator vigorously contends that section 125 of the new charter, which provides against restoration to office of or payment of salary or compensation to any person, after February 24, 1925, claiming to have been unlawfully removed or discharged from any office or position in the competitive class of the civil service prior to the 1st day of January, 1925, also violates the above constitutional provisions. The fallacy of relator's claim is uncovered by the fact that the status of the persons contemplated by section 125 was necessarily fixed under the civil service law of the old charter, which was simply the direct legislation of the people of Kansas City. The adoption of the new charter is direct legislation by the people of Kansas City of the same kind and of equal dignity but subsequent and therefore...