State v. Wilson

• Decision Date: 05 December 1910
• Citation: 151 Mo. App. 719,132 S.W. 623
• Parties: STATE ex rel. KENDALL v. WILSON et al.
• Court: Missouri Court of Appeals

132 S.W. 623

151 Mo. App. 719

STATE ex rel. KENDALL v. WILSON et al.

Springfield Court of Appeals. Missouri.

December 5, 1910.

1. MANDAMUS (§ 164)—PROCEEDINGS — DEFENSES.

Where a city treasurer, who had been suspended from office by the board of aldermen pending the hearing by them of charges against him, obtained an alternative mandamus requiring the board to reinstate him or show cause, their proceedings on the charges were not stayed thereby, and they could allege on the return to the writ, as a reason for not reinstating the treasurer, that he had been tried on the merits of the charges against him and removed from office; the rule being that respondents in mandamus may allege matters occurring after the issue of the alternative writ as a reason why the peremptory writ should not issue.

2. MUNICIPAL CORPORATIONS (§ 155)—TREASURER —REMOVAL—VALIDITY.

Under Rev. St. 1909, § 9310, providing that any appointive officer of a city of the fourth class may be removed by a two-thirds vote of all the members elected to the board of aldermen, independently of the mayor's approval or recommendation, the treasurer of such a city may be removed by such two-thirds vote without cause.

3. MUNICIPAL CORPORATIONS (§ 155)—OFFICERS —REMOVAL—PROVISIONS OF CHARTER— EFFECT OF ORDINANCE.

The right given to the board of aldermen of a city by Rev. St. 1909, § 9310, providing for the removal from office of any appointive officer by a two-thirds vote of all the members elected to the board, independently of the mayor's approval or recommendation, cannot be taken away by an ordinance.

Mandamus on relation of W. S. Kendall against George Wilson and others. Peremptory writ denied.

J. M. McPherson and W. B. Skinner, for relator. Parker Potter, for respondents.

GRAY, J.

On the 17th day of October of the present year, an alternative writ of mandamus was issued in vacation by one of the judges of this court, returnable to the court in session. Return has been made by the respondents, and the relator has filed a motion for a peremptory writ, notwithstanding the return, and the cause has been heard by the court.

Mt. Vernon, Mo. is a city of the fourth class, and was such at all times hereinafter mentioned. The relator, on the first Tuesday in May, 1910, was duly appointed city treasurer of the city for a term of two years from said date. He qualified, gave bond to the city, as required by law and the ordinance of the city, and assumed the duties of his office as treasurer. The respondents, except Gus. A. Schmidtke, constitute six of the eight members of the board of aldermen of the city. On the 3d day of August, 1910, the board passed an ordinance entitled "An ordinance concerning the selection of a city depository." The ordinance provides that all funds of the city shall be kept by the city depository. The ordinance was presented to the mayor, who refused to sign the same, and returned it to the board with his objections in writing. The mayor refused to sign the ordinance because he believed the board was without authority to pass the same. It was the contention of the mayor that the board of aldermen had a right to select a city depository for the sinking fund of the city, but not for its general funds. The board selected a banking corporation as city depository, after the ordinance had been passed by the respondents over the objection...