State v. Walbridge

• Citation: 119 Mo. 383,24 S.W. 457
• Parties: STATE ex rel. REID v. WALBRIDGE, Mayor.
• Decision Date: 07 December 1893
• Court: United States State Supreme Court of Missouri

24 S.W. 457

119 Mo. 383

STATE ex rel. REID v. WALBRIDGE, Mayor.

Supreme Court of Missouri, Division No. 2.

December 7, 1893.

CITIES — REMOVAL OF OFFICERS BY MAYOR — VALIDITY OF ORDINANCE.

1. Const. 1875, art. 14, § 7, declares that the general assembly shall, "in addition to other penalties," provide for the removal of county, city, and town officers, on conviction of willful, corrupt, or fraudulent violation or neglect of public duty. 2 Rev. St. 1889, § 7127, (Laws 1877, p. 346,) provides for such removals on complaint by a prosecuting officer in the circuit court, and trial by jury if demanded. The St. Louis charter, art. 4, § 5, provides that any appointed officer may be removed by the mayor or council for cause, and Rev. Ord. §§ 917, 919, 1105, empower the mayor to remove such officer for cause. Held, that the constitution did not limit the assembly's power to provide for removals to the grounds recited; the words, "in addition to other penalties," assuming the existence of other offenses and punishments, and that Act 1877, therefore, did not conflict with or repeal the above provisions of the charter and ordinances, but merely, in certain cases, gave an alternative procedure.

2. An ordinance prescribing removal from office by the mayor as penalty for misconduct in office of an appointed officer is within the general welfare clause of the St. Louis charter, empowering the city to pass such ordinances, not inconsistent with the state laws, as may be expedient in maintaining the peace, good government, and welfare of the city, and to enforce the same by fines and penalties.

3. Where the charter and ordinances empower the mayor to remove an appointed officer for cause, no procedure being specified, there is an implied requirement of proper notice to the officer, charges preferred, and full opportunity for him to be heard, and the mayor is clothed with all judicial powers needed to carry out his authority.

Prohibition, on relation of George B. Reid, to Cyrus P. Walbridge, mayor of the city of St. Louis, to restrain proceedings to try relator on charges of misconduct in office. Writ denied.

The other facts fully appear in the following language by SHERWOOD, J.:

By this original proceeding in this court, a rule was issued and served on the mayor of St. Louis, requiring him to show cause why he should not be prohibited from proceeding to try relator on certain charges which had been preferred against him by Robert E. McMath, president of the board of public improvements, which charges showed upon their face certain derelictions of official duty on the part of relator as commissioner of public buildings. After setting forth the notice to the relator from the mayor, the charges preferred, and the items and particulars offered in their support, the petition praying for the writ concludes: "The relator states that no provisions of law have been enacted or are in force, governing proceedings at a trial of the character aforesaid before the mayor, or providing means by which the relator can compel the attendance of witnesses on his behalf at said hearing, or denouncing the pains and penalties of perjury against witnesses who at said proceedings shall testify falsely to any material fact in the matter, or providing for a trial by jury; that under the General Statutes of this state, by sections 7127, 7128, 7129, and 7130, the circuit court of the city of St. Louis has exclusive jurisdiction of the trial and determination of the matters which the said mayor is proceeding, as aforesaid, to try and determine in the premises, and at said trial in the circuit court the accused is entitled to a trial by jury; that the proceedings of the mayor, as aforesaid, are an infringement on the rights of the relator, and are an attempt to exercise authority that the mayor does not possess, and are an encroachment upon the authority and jurisdiction of the courts of this state. Wherefore, the relator prays that a writ of prohibition to the said Cyrus P. Walbridge, mayor, as aforesaid, be directed, prohibiting him from proceeding or holding the trial aforesaid," — and is duly certified. The respondent, for his return, demurred generally on the ground that the petition did not state facts sufficient, etc., and because the facts stated in the petition did not bring this cause within the classification of causes enumerated in section 7 of article 14 of the constitution, nor within section 7127, 2 Rev. St. 1889, etc. These sections were enacted in 1877. Laws of that year, (page 346.) Section 7 aforesaid of the constitution declares: "The general assembly shall, in addition to other penalties, provide for the removal from office of county, city, town and township officers on conviction of willful, corrupt or fraudulent violation or neglect of official duty." Section 7127 of the statute, in obedience to the constitutional mandate just quoted, and also of section 18 of article 2 of that instrument, provides that "any person elected or appointed to any office or employment of trust and profit, under the laws of this state, or any ordinance of any municipality in this state, except such officers as may be removed by impeachment, who shall fail to personally devote his time to the performance of the duties of such office or employment of trust or profit, and any county, city, town or township officer who shall be guilty of any willful, corrupt or fraudulent violation or neglect of any official duty, shall forfeit his office, and be removed therefrom as hereinafter provided." The other sections relied on by relator provide for the enforcement of the section just quoted, by a complaint filed by a prosecuting officer, etc., in the circuit court, and a trial after so many days with and by a jury, if demanded, and for a judgment of removal, if the defendant be found guilty of violating the provisions of section 7127, etc. Section 5 of article 4 of the city charter provides that: "Any elected city officer may be suspended by the mayor and removed by the council for cause; and any appointed officer may be removed by the mayor or council for cause. In either case the mayor shall temporarily fill the vacancy, except as hereinafter provided." The office of relator is appointive, and its term is four years, (Rev. Ord. p. 687, § 681,) not expiring until 1895. The revised ordinance, in briefer terms than the charter, provides for the removal by the mayor of an appointed officer, "for cause." Sections 917, 919, 1105. But, though provision is made for charges being preferred and a trial had where the mayor suspends an elected officer, (sections 918, 1094 et seq.,) yet no such provision has been discovered in regard to appointive officers.

Leverett Bell and William B. Thompson, for relator. W. C. Marshall, for respondent.

SHERWOOD, J.

The foregoing premises are laid down as the basis for the following remarks:

In Manker v. Faulhaber, 94 Mo. 430, 6 S. W. 372, action was brought against the mayor and others for damage for maliciously removing the plaintiff from the office of city collector in November, 1878. The defendants justified under the amended charter of that city, approved March 1875, which contained this provision: "The mayor * * * shall have power with the consent of the board of aldermen, to remove from office any person holding office created by charter or ordinance for cause, and on application of three-fourths of the board of aldermen he shall be compelled to remove any officer created by ordinance." The trial court refused to permit that section of the charter to be read in evidence, and instructed the jury that under the constitution and laws of Missouri as they existed in November, 1878, the mayor and board of aldermen of the city of Sedalia had no legal right or authority to remove the plaintiff from the office of city collector. This action of the trial court was held erroneous; that the charter of Sedalia was unaffected by the act of 1877; that the charter, not conferring on the mayor and aldermen the power to remove a municipal officer, was special and particular, while the act of 1877 was general and affirmative, without repealing words; that the two acts were not irreconcilably inconsistent, and therefore there was no repeal by implication. That ruling cannot be otherwise regarded than as decisive of this case, since the charter of St. Louis of 1876 is no more inconsistent with the General Laws of 1877 than was the charter of Sedalia on the point already quoted. Manker v. Faulhaber has been approvingly cited as to repeals by implication in State v. Noland, 111 Mo. loc. cit. 484, 19 S. W. 715, and directly followed in State v. Slover, 113 Mo. 202, 20 S. W. 788, where it was distinctly ruled that section 8233, 2 Rev. St. 1889, providing that an official stenographer might be removed, without the intervention of a jury, for "incompetency or any misconduct in office," by the judge of the circuit court, on charges entered of record, and notice given, could stand as consistent with section 7127, aforesaid, and that the provisions of section 8233 might well be regarded as simply furnishing a cumulative remedy to that ordained in the former section in relation to removals for failure to give personal attention to official duties. "A repeal by implication must be by necessary implication. It is not sufficient to establish that the subsequent law or laws cover some or even all of the cases provided for by it, for they may be merely affirmative or cumulative or auxiliary, but there must be a positive repugnancy between the provisions of the new law and those of the old; and even then the old law is repealed by implication only pro tanto, to the extent of the repugnancy." And. Law Dict. 879.

Other considerations tend towards the same result as that announced in the cases cited. It will be observed that section 7 of article 14 aforesaid, says: "The general assembly shall, in addition to other penalties, provide for the removal," etc. The...