State v. Vallins

• Decision Date: 06 July 1897
• Citation: 41 S.W. 887,140 Mo. 523
• Parties: STATE ex rel. CROW, Atty. Gen., v. VALLINS.
• Court: Missouri Supreme Court

41 S.W. 887

140 Mo. 523

STATE ex rel. CROW, Atty. Gen., v. VALLINS.

Supreme Court of Missouri.

July 6, 1897.

QUO WARRANTO — PLEADING — ABATEMENT — CONSTITUTIONAL LAW — CHIEF OF POLICE — PROBATIONARY APPOINTMENT.

1. In quo warranto to determine title to office, a charge in general language that respondent has intruded into, usurped, and unlawfully exercised the functions of a certain office is all that is required to put him to his answer.

2. A plea to the jurisdiction in quo warranto under the common law is bad, unless pleaded in personam.

3. As the supreme court acquires its jurisdiction from the organic law of the state, it is beyond the power of the legislature to deprive it of any jurisdiction given by the constitution.

4. Under the charter of the city of Kansas City, the provision that policemen may be appointed for a probationary term does not apply to the office of chief of police, and an appointment for such term is void.

5. There can be but one answer filed in a proceeding in quo warranto, and that must contain all the defenses the party has, whether in abatement or in bar.

Barclay, C. J., and Robinson, J., dissenting.

In banc. Information by the state, on the relation of Edward C. Crow, attorney general, in the nature of quo warranto to Thomas N. Vallins. Judgment of ouster.

E. C. Crow, Atty. Gen., and Daniel Brown, for relator. Frank Hagerman, for respondent.

SHERWOOD, J.

An information in the nature of quo warranto has been filed in this court by the attorney general, directed against Thomas N. Vallins, respondent herein, its purpose being to inquire quo warranto said Vallins entered into, used, and exercised the office of "chief of police" of the city of Kansas. The information undertakes to specify the grounds upon which it proceeds, but, of course, this is wholly unnecessary, since in these ex officio informations the state is under no obligation to show anything on its part. A charge in general language that the respondent has intruded into, usurped, and unlawfully exercised the functions of a certain office is all that is required to put him to his answer. Mechem, Pub. Off. § 491; Toml. Law Dict. tit. "Quo Warranto," 281; State v. Berkeley (not yet officially reported) 41 S. W. 732. In this case, to the information the respondent has interposed a dilatory plea, to wit, a plea to the jurisdiction of this court, which, omitting caption, is the following: "Now comes Thomas N. Vallins, and appearing specially and solely for the purpose of this plea, and for no other purpose, respectfully shows that this court had no jurisdiction of his person, nor of the controversy attempted to be created by this action, for that since the 1st day of April, 1897, the board of police commissioners of Kansas City, Missouri, has consisted of William C. Scarritt, Robert L. Gregory, and Jas. M. Jones, duly qualified and acting members. Prior to April 8, 1897, respondent had no official place or employment with Kansas City, Missouri. Upon April 8, 1897, said board of police commissioners did employ respondent as policeman of said city, with the rank of chief of police, for the probationary term of six (6) months, mentioned in section 22 of article 10 of the charter of Kansas City, with the right reserved on the part of said board, in its discretion, to discontinue his services at any time, which employment has ever since continued and he is still engaged therein. He has not had at any time any other connection with Kansas City, Missouri, as an official or employé. The purpose of the information herein is to attempt to have litigated here a question of fact as to whether respondent has resided in the state of Missouri for a period of one year, and, if the fact should be so found, to have this court determine that the employment aforesaid cannot be exercised by one who has not resided in the state for one year. This court has not jurisdiction to inquire into any such matters by an original proceeding in quo warranto, for that an agency and employment of the character mentioned is not a subject of inquiry in such proceedings, and, by virtue of law in such cases made and provided, said board of police commissioners is invested with exclusive jurisdiction in the premises. Wherefore, respondent asks to be dismissed, with his costs. Frank Hagerman, Attorney for Respondent." This plea, if to be governed, as counsel claim, by the rules of the common law, is bad, because such a plea is to be pleaded in person (Grant v. Sondes, 2 H. Bl. 1094; Hunter v. Neck, 3 Man. & G., loc. cit. 184; Gilb. Com. Pl. 187; 1 Tidd, Prac. p. 637; Steph. Pl. *461), and must conclude "by praying judgment if the court will take further cognizance of the suit" (1 Tidd, Prac. p. 638). With reference to that portion of the plea which alleges that, "by virtue of law in such cases made and provided, said board of police commissioners is invested with exclusive jurisdiction in the premises," it is sufficient for the present to say, as was in substance and effect said in a recent case, that, since this court acquires its jurisdiction from the organic law of this state, it is quite beyond the power of the legislature, even if so intended, to abate by one jot or one title the constitutionally conferred jurisdiction of this court; and this is true although similar jurisdiction elsewhere be conferred on inferior courts or boards. State v. Equitable Life & Inv. Co. (not yet officially reported) 41 S. W. 916.

The chief point, however, of contention in this cause, is to be determined upon an examination of certain sections of the charter of Kansas City, which are as follows:

"Sec. 21. No person shall be appointed policeman or officer of police who shall have been convicted of any offense, the punishment of which may be confinement in the state penitentiary, or against whom an indictment for any such offense may be pending; nor shall any person be appointed who is not proven to be a citizen of the United States, or who cannot read and write the English language, or who does not possess ordinary physical strength and courage.

"Sec. 22. The first employment of policemen shall be for a probationary term of six months; and the board of police may, in its discretion, discontinue their services at any time. Having served six months probationary service to the satisfaction of the board, such policeman may be appointed for a term of three years, and in case complaint be made against them, they shall be subject to removal only for cause, after a hearing by the board, and said board is hereby invested with exclusive jurisdiction in such matters. Whenever the board is satisfied that any person holding a commission under them is not a proper person to discharge the duties of a police officer, he may be discharged at any time without any complaint having been made against him.

"Sec. 23. Policemen whose term of service shall have expired, and who, during the term of their appointment, shall have faithfully performed their duty, shall, if otherwise qualified, be preferred by the board in making new appointments. The board may, in its discretion, make special provisions for policemen and officers who have grown old in the service, or those crippled while in the discharge of their duty so as to unfit them for active work, either by pension, not to exceed fifty dollars per month, or assigning them to special duty at a proper salary.

"Sec. 24. The board may, as the service requires, appoint officers and patrolmen as follows: A chief of police, at a salary not exceeding four thousand dollars per annum, and he shall not receive any fees or any perquisites; one inspector or chief of detectives, at a salary not exceeding two thousand dollars per annum; a secretary of the board, at a salary not exceeding two thousand dollars per annum; captains, not exceeding one for each police district, at a salary not exceeding eighteen hundred dollars per annum; lieutenants, not to exceed one for each police district, at a salary not to exceed fifteen hundred dollars per annum; sergeants, not to exceed four for each police district, at a salary not exceeding twelve hundred dollars per annum; a secretary to the chief, at a salary not exceeding twelve hundred dollars per annum; a police surgeon, at a salary not exceeding fifteen hundred dollars per annum, who shall perform such additional duties as may be prescribed by ordinance; police detectives, not exceeding one for every fifteen patrolmen, at a salary not exceeding fifteen hundred dollars per annum; patrolmen, not to exceed one to each one thousand inhabitants of the city, the estimate to be taken from the best known sources for obtaining such information, as may be prescribed by ordinance: provided, however, that for extraordinary emergencies the board may raise such additional force as may be deemed necessary in their judgment. The salary of regular patrolmen shall not exceed ninety dollars per month, and that of probationary patrolmen shall not exceed sixty dollars per month. The salaries of all officers and patrolmen of the police force shall be fixed from time to time by the board of police commissioners, not to exceed, however, the limits herein specified.

"Sec. 25. The officers, patrolmen and all attachés of the department shall be paid monthly as hereinbefore provided.

"Sec. 26. The board may, in its discretion, require a bond with security to be approved by the board, of any officer or member of the police, in any reasonable sum, conditioned for the faithful performance of duty and the proper care and disposition of money or property placed in his charge.

"Sec. 27. Whenever any vacancy shall take place in any grade of officers, except the chief, it shall be filled from the next lower grade, if competent men can be found therein."

"Sec. 32. No officer or policeman shall be allowed to receive any money as a reward or gift for any service he may render, without the consent of the board, and when such consent is...