The State Ex Informatione Crow v. Vallins

• Decision Date: 06 July 1897
• Citation: 41 S.W. 887,140 Mo. 523
• Parties: The State ex informatione Crow, Attorney-General, v. Vallins
• Court: Missouri Supreme Court

41 S.W. 887

140 Mo. 523

The State ex informatione Crow, Attorney-General, v. Vallins

Supreme Court of Missouri

July 6, 1897

Judgment of ouster awarded.

Frank Hagerman for respondent.

(1) By the provisions of the Constitution and these sections of the charter, it will be observed that the Governor is the conservator of peace, but that in Kansas City the entire police power is vested absolutely in the commissioners, as the local representatives of the Governor, and the power to appoint policemen is, in the express language of the charter "to enable said board to perform the duties imposed upon them." (2) A close reading of the section in question must carry the conviction that the purpose of the framers thereof was to vest in the board powers of a judicial nature and to give them exclusive jurisdiction in the premises. Lenox v. Harrison, 88 Mo. 491; Com v Leech, 44 Pa. St. 332; State ex rel. v Moehlenkamp, 133 Mo. 135; Railroad v. Young, 96 Mo. 39; State v. Cockrell, 2 Rich. Law (S. C.), 6; Sellick v. Common Council, 40 Conn. 359; People v. Fitzgerald, 41 Mich. 2; Alter v. Simpson, 46 Mich. 138; People v. Hill, 34 How. Pr. 336; Com. v. Baxter, 35 Pa. St. 263. (3) The probationary term being but an employment quo warranto will not lie. (4) There can be no question as to the fact, it being conceded by the motion that the relation of respondent to Kansas City was that of employee. The language of the plea to the jurisdiction is that the board employed respondent for a probationary period with the right, in its discretion, to discontinue his services at any time. State ex rel. v. Johnson, 123 Mo. 43; State ex rel. v. Bus, 36 S.W. 636; State v. Wilmington, 3 Har. 294; People ex rel. v. Cain, 47 N.W. 484; Trainar v. Board of Auditors, 50 N.W. 809; State ex rel. v. Champlin, 2 Bailey, 220; Commonwealth v. Dearborn, 15 Mass. 125.

Edward C. Crow, Attorney-General, and Daniel Brown for relator.

(1) The facts admitted are sufficient to show a complete user by respondent of the office of chief of police, thereby making him de facto chief of police. (2) Respondent may be de facto chief of police, although ineligible and in wrongful possession of the office. Harbaugh v. Winson, 38 Mo. 327; 5 Am. and Eng. Ency. of Law, 96; 19 Ib. 394; Throop on Public Officers, sec. 636. (3) The only proper remedy for the removal of an officer on account of ineligibility is a proceeding by quo warranto. R. S. 1889; sec. 7390; 2 Spelling, Extr. Relief, secs. 1765, 1766; 19 Am. and Eng. Ency. of Law, 666; Mechem's Public Offices, sec. 478. (4) Even though the charter provides a way to try such case and gives the board of commissioners jurisdiction as contended by respondent, yet it could not be "exclusively" exercised by the board in the face of the constitutional provisions conferring the right also on the Supreme Court. Even though permitted, it is necessarily restricted. (5) The proceedings, whether before the board of commissioners, Supreme Court, or any other tribunal having jurisdiction, is one in the nature of a quo warranto. (6) The respondent is an officer of the city as well as of the State, and can not by any possible fine distinction or elasticity of construction be termed a servant (other than public servant) agent or employee. The charter defines his character as an officer. The fact that he is still occupying his probationary term of six months certainly does not render him an agent, servant or employee, but he is the chief of police, de facto so, but for all the purposes of this case, a city officer, and therefore subject to the jurisdiction of the court. (7) The charter adopted by the city of Kansas City in April, 1889, was obtained by virtue of the authority of the Constitution. Its full authority is derived therefrom, and had the people of that city so desired they could not have ordained full authority to themselves to try quo warranto proceedings, or other remedial writs, such matters being especially mentioned as subject to the consideration and jurisdiction of the Supreme Court. It was not the intention of the people of Kansas City, when they adopted the charter of 1889, to give the board of police commissioners judicial authority and empower them to consider and determine proceedings instituted for the purpose of testing the eligibility of a police officer.

Frank Hagerman for respondent in reply.

(1) The word "policeman" includes any one of the body of police, whether he be officer of police or patrolman. Sutherland, Stat. Const. 306; Anderson's Law Dic. 737; R. S. 1889, sec. 1570; Warren v. Asphalt Co., 115 Mo. 572. (2) The Constitution vests jurisdiction in quo warranto in the Supreme Court, but it is the jurisdiction only as it existed at common law. State ex rel. v. Wilson, 30 Kan. 661.

Sherwood, J. Burgess, Macfarlane and Brace, JJ., concur. Gantt, J., also concurs but regards respondent as an officer; Barclay, C. J., and Robinson, J., express their views in a separate opinion. Barclay, C. J., dissenting. Judge Robinson joins in this opinion.

OPINION

In Banc.

Quo Warranto.

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's Pub. Off., sec. 491; Tomlins' Law Dic. Tit. Quo. War. 281; State ex inf. Dearing, Pros. Att'y, v. Berkeley, 140 Mo. 184, 41 S.W. 732, ante.

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 8th, 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 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 is still engaged therein; he has not had at any time any other connection with Kansas City, Missouri, as an official or employee. 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 can not 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 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."

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 Bla. W. R. 1094; Hunter v. Neck, 3 M. & G. 181; Gil. C. P. 187; 1 Tidd. 637; Stephen, Plead. *461), and must conclude "by praying judgment if the court will take further cognizance of the suit." 1 Tidd. 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 tittle the Constitution conferred jurisdiction of this court; and this is true although similar jurisdiction elsewhere be conferred on inferior courts or boards. State ex inf. Att'y-Gen. v. Equitable L. & Inv. Co., not yet reported.

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 follow:

"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 can not 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...