State v. Wells

• Decision Date: 31 March 1908
• Citation: 109 S.W. 758,210 Mo. 601
• Parties: STATE ex rel. HEIMBURGER v. WELLS, Mayor of the City of St. Louis.
• Court: Missouri Supreme Court

109 S.W. 758

210 Mo. 601

STATE ex rel. HEIMBURGER v. WELLS, Mayor of the City of St. Louis.

Supreme Court of Missouri, Division No. 2.

March 31, 1908.

1. CONSTITUTIONAL LAW — DISTRIBUTION OF GOVERNMENTAL POWERS—EXECUTIVE POWERS—ENCROACHMENT ON JUDICIARY—"JUDICIAL OFFICER."

Const. art. 3 (Ann. St. 1906, p. 172), distributes the powers in government into three departments—the legislative, executive, and judicial—and article 6, § 1 (Ann. St. 1906, p. 212), vests the judicial power in the courts of the state. St. Louis City Charter, art. 4, §§ 5, 15, 16, 47 (Ann. St. 1906, pp. 4823, 4825, 4835), and the ordinances adopted pursuant thereto, empower the mayor to enforce the laws and ordinances of the city, and to remove officials occupying positions in other departments of the city government on due notice and hearing before him. Held, that the mayor was not a judicial officer within the Constitution while exercising the power of removing city officers under the charter, his functions being merely quasi judicial, and the charter provisions empowering him to remove officers were not unconstitutional on that ground.

2. MUNICIPAL CORPORATIONS — EMPLOYÉS — REMOVAL — PROCEEDINGS — AUTHORITY TO HEAR CHARGES—TRIAL BY MAYOR.

The charter provisions having imposed on the mayor the duty of seeing that the laws were enforced, the fact that the mayor's secretary preferred charges against a city official which were heard before the mayor, or even if the mayor himself preferred the charges, would not disqualify him from hearing such charges, since it is presumed that he will conscientiously perform the duties imposed by law.

3. STATUTES—REPEAL—IMPLICATION — SUFFICIENCY OF REPEALING ACT.

A repeal of a statute by implication must be by necessary implication, and it is not sufficient to establish such repeal that the subsequent law covers some, or even all, of the cases provided for by the prior statute, since it may be merely affirmative or cumulative, but the repealing law must be positively repugnant to the existing law, and even then the old law is repealed by implication only to the extent of the repugnancy.

4. MUNICIPAL CORPORATIONS — REMOVAL OF OFFICIALS—CHARTER PROVISIONS—REPEAL.

St. Louis City Charter, art. 4, §§ 5, 15, 16, 47 (Ann. St. 1906, pp. 4823, 4825, 4835), and the ordinances adopted pursuant thereto conferring upon the mayor the power to remove officials of a city government upon proper notice and hearing, was not repealed either expressly or impliedly by Act April 23, 1877, p. 346 (Rev. St. 1899, §§ 8853-8856 [Ann. St. 1906, pp. 4113, 4114]), providing for the removal of public officers, both state and municipal.

5. CERTIORARI — PROCEEDINGS — RECORD — CONTENTS—EVIDENCE.

A writ of certiorari brings up the record proper, and, there being no statutory provision making evidence taken in proceedings before the mayor upon trial of city officers a part of the record, the evidence in such proceedings will not be considered on certiorari.

Appeal from St. Louis Circuit Court.

Certiorari by the state, on the relation of George U. Heimburger, against Rolla Wells, mayor of the city of St. Louis, to review a judgment of the circuit court affirming an order of respondent dismissing relator for official incompetency. Judgment affirmed.

This cause is before this court upon appeal by the relator from the action of the circuit court of the city of St. Louis in overruling his motion to quash certain proceedings instituted before the respondent as mayor of the city of St. Louis to remove the relator, and a judgment in favor of respondent rendered on February 6, 1905. This is a proceeding on a writ of certiorari issued by the circuit court of the city of St. Louis, at the relation of George U. Heimburger, for a review of a proceeding had before the mayor of said city in the trial of relator for official incompetency and negligence as commissioner of public buildings. The charges were prepared and signed by James G. McConkey, who was the secretary to the mayor. The general charge was "official incompetency and gross official negligence."

Specification No. 1 was "respecting the poorhouse contract"—that is, it was charged concerning that subject that the relator (a) in approving and presenting to the board of public improvements plans which were palpably faulty in that the steel work required was far in excess of the proper amount, to wit, about 63,000 pounds, thereby subjecting the city to unnecessary expenses of from $1,500 to $2,000 for excessive steel, and about $600 additional for fireproofing and plastering resulting therefrom, and all this after his attention was directly called thereto before completion of the plans and in ample time to have remedied the same; (b) in recommending a change, and inducing the contractors to expect a change, in the contract after the formal letting so as to substitute plans requiring 63,000 pounds of steel less than the contract called for, upon allowance to the city of an insufficient rebate, when said commissioner knew that any such change of a formally executed contract with or without rebate was unlawful and unauthorized; (c) such proceedings resulted in unnecessarily delaying the completion of the steel work on said building.

Specification No. 2, "respecting workhouse contract": The charge concerning this subject against relator was: (a) In directing a material alteration, for which there was no authority, of the contract after the letting thereof and commencement of work, said charge consisting in the substitution of concrete columns and beams in place of iron, as called for by the contract; said concrete work being both inferior in quality and less in price by from $500 to $600 than the iron work required by the contract. (b) In causing to be inserted in the contract an unusual and unlawful provision, to wit: "Concrete floors. * * * Contractors may propose for any system that is acceptable to the commissioners, but must furnish complete plans and specifications for the same and must conform in results to that herein specified. If the steel framing as laid out does not conform to the system adopted, it must be changed to suit such system * * *"—which had never been inserted in any other of the city contracts, and under which it became possible to claim (though erroneously) that authority existed in the commissioner to make the alteration. (c) In unnecessarily delaying and permitting the delay of the work so that it could not be completed in the time required by the contract.

Specification No. 3, "respecting city hospital contract": The charge against relator concerning this subject was: (a) In directing an unauthorized alteration in the contract in that part providing for brass work and ordering the substitution, without authority, of enameled cast iron, a material of less value, to wit, about $800, and not adapted for the purposes intended. (b) In unnecessarily delaying and permitting the delay of the work on said building specified as marble work, where the metal above referred to in specification (a) was to be used, so that the same could not be completed in the time required.

Specification No. 4, "respecting the repairs in courthouse": The charge against relator concerning this subject was (a) in willfully permitting a departure from contract in that part relating to "millwork" by allowing in place of veneered work called for solid woodwork of much less value, to wit, $300, and, further, after having unlawfully permitted said change, in neglecting to take steps to exact a rebate and in declining to recommend the acceptance of a rebate on account of said inferior and cheaper work after his attention had been expressly directed thereto.

Specification No. 5, "respecting retention of unfit employé": The charge against relator concerning this subject was (a) in willfully keeping in the employ of the commissioner of public buildings one Harry Hoel, after said commissioner knew that said Hoel was guilty of officially reprehensible and dishonest acts, and that his further retention was injurious to the city's interest, to wit: Said Hoel on or about the 21st day of August, 1903, did present to John T. Henry (owner) or A. M. Baker (contractor), who was constructing a building for which the law required a permit, a notice under the seal of the building commissioner's office for the purpose of being shown to the police department, to the effect that no permit was required to erect the building then being erected, when said act of Hoel was entirely outside the scope of his employment at that time, and was known by him to be unwarranted and was unlawful; said Hoel without warrant or authority having affixed the official seal of the building commissioner's office to said notice.

Specification No. 6, "respecting failure to enforce insane asylum contract relating to painting and cleaning": The charge against the relator concerning this subject was (a) in failing to enforce the provisions of contract requiring "all copper work of dome, gutters, downspouts, etc., to be cleaned with acid and oiled with linseed oil," and in allowing the same to be painted, instead of cleaned and oiled, as required by said contract, and in excusing without authority the contractor from cleaning the dome upon payment of an insufficient and inadequate rebate or allowance to the city, to wit, the sum of $10, although the difference to be allowed (if any exemption were permissible) should have been much larger. A copy of these charges and specifications was duly served upon relator, as shown by the abstract. The relator appeared both in person and by counsel at the hearing before the mayor. A large amount of testimony was heard both for and against him. Witnesses were summoned in his behalf and testified for him, and the mayor, acting in official capacity, found the defendant guilty of charges and specification No. 1, clauses "a," "b," and "c," specification No. 2, clauses "a," "b," and "c," specification ...