State v. Wilson

• Decision Date: 05 December 1910
• Parties: STATE ex rel. CASE v. WILSON et al.
• Court: Missouri Court of Appeals

132 S.W. 625

151 Mo. App. 723

STATE ex rel. CASE v. WILSON et al.

Springfield Court of Appeals. Missouri.

December 5, 1910.

1. MANDAMUS (§ 77)—GROUNDS — RESTORATION TO OFFICE.

Mandamus is an appropriate remedy to compel the restoration of an officer who has been wrongfully deprived of his position.

2. MUNICIPAL CORPORATIONS (§ 168)—MAYOR —POWERS.

In a city of the fourth class, the mayor is its general officer having general supervision over all its officers and affairs as expressly provided by Rev. St. 1909, § 9306.

3. MUNICIPAL CORPORATIONS (§ 57)—POWERS.

Municipal corporations possess only such powers as are granted in express words or those necessarily incident to or implied in the powers expressly granted.

4. MUNICIPAL CORPORATIONS (§ 58)—CHARTER—CONSTRUCTION.

If there is reasonable doubt concerning the existence of power in the charter of a city, it will be resolved against the city.

5. DEPOSITARIES (§ 8)—CITY OF THE FOURTH CLASS — RIGHT TO HAVE DEPOSITORIES — STATUTE—CONSTRUCTION.

Since statutes in pari materia are to be construed together to discover the legislative intent, though they are found in different chapters of the Revised Statutes under different headings, Rev. St. 1909, § 9363, providing that cities of the fourth class may select city depositories for sinking funds; section 9217, providing that cities of the third class may select depositories for the general funds of the city; section 8931, providing that the comptroller of a city of the second class may, with consent of the council, award the city deposits to the bidder agreeing to pay the highest rate of interest; and section 8585, providing that cities of the first class may select a depository for the general funds—should all be treated as embodied in one section, thereby allowing depositories of cities of the fourth class for its sinking funds only.

6. DEPOSITARIES (§ 8) — DEPOSITORIES FOR FUNDS—STATUTES—CONSTRUCTION.

Rev. St. 1909, § 9363, providing that a city of the fourth class may have a depository for its sinking funds, may be construed as an amendment to the prior statute (Rev. St. 1909, § 9395), providing that in cities of the fourth class the treasurer should keep the city funds; so that when read together the treasurer shall keep all funds except the sinking funds which may be taken from him by the selection of a depository.

7. COURTS (§ 231)—SUPREME COURT—JURISDICTION—STATUTE—VALIDITY.

Where the Court of Appeals held that an ordinance providing for depository of all the funds of a city of the fourth class was illegal as not having been provided for by Rev. St. 1909, §§ 9363, 9217, 8931, 8585, a motion to transfer the case to the Supreme Court on the ground that section 9363, providing that cities of the fourth class may select depositories for their sinking funds, was unconstitutional, would not be granted, as its unconstitutionality could not affect the decision, since, though the section were invalid, yet it may be considered in arriving at the intention of the Legislature, and its interpretation of the existing law, which was that a city of the fourth class could not select a depository for its general funds.

8. STATUTES (§ 220)—CONSTRUCTION—LEGISLATIVE INTERPRETATION—EFFECT.

In construing a statute, the legislative interpretation of it, though not conclusive, is entitled to weight.

9. STATUTES (§ 212)—PASSAGE.

In the passage of laws the Legislature is presumed to know the existing law and to have acted in the light of such knowledge.

10. COURTS (§ 231)—JURISDICTION—SUPREME COURT — TRANSFER OF CAUSES — CONSTITUTIONAL QUESTIONS.

The Court of Appeals will not transfer a case to the Supreme Court on the ground that a constitutional question is involved, unless the question affects the merits of the case.

11. MUNICIPAL CORPORATIONS (§ 156)—ILLEGAL ORDINANCE—MAYOR—REFUSAL TO SIGN.

The mayor of a city of the fourth class properly refused to sign an ordinance providing for a depository for the general funds of the city, where such depository had not been provided for by statute, so that the mayor's removal from office therefor was illegal, under the city charter (Rev. St. 1909, § 9306), providing that he cannot be removed by the council without cause.

Original proceeding by mandamus by the State of Missouri, on relation of J. W. Case, against George Wilson and others. Mandamus granted.

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

GRAY, J.

On the first Tuesday in April, 1910, the relator was duly elected mayor of the city of Mt. Vernon, a city of the fourth class in Lawrence county. He duly qualified and acted as said mayor until the 7th day of October, when the respondents caused charges to be filed against him, and made an order suspending him from his office, and caused a copy of the charges to be served upon him, and fixed Friday, the 21st day of October, as the time for trying him upon said charges. On the 21st day of October, the board of aldermen convened as a board of impeachment, and, after a hearing, made an order removing the relator from his office. On the 3d day of August, 1910, the board of aldermen passed an ordinance providing for a city depository for all the funds of the city. When the ordinance was presented to the mayor for his approval, he refused to approve the same and notified the council in writing his reasons therefor. The relator based his veto upon the grounds that the city of Mt. Vernon had no authority to select a depository for the general funds of the city; that the only right to select a depository was for the sinking funds of the city; and in his veto message he recommended the passage of an ordinance selecting a depository for the sinking funds. Notwithstanding the mayor's veto, the respondents constituting six of the eight members of the board of aldermen of the city, attempted to pass the ordinance over the mayor's veto, and selected a banking corporation as such city depository, and directed the mayor to approve the bond of such depository. The mayor refused, and also refused to direct the city treasurer to turn the funds of the city over to the newly selected depository. On account of the refusal of the mayor to sign the ordinance, approve the bond, and direct the treasurer to turn the funds of the city over to the alleged depository, he was removed from office. The relator applied to this court for writ of mandamus, and an alternative...