The State ex rel. Stomp v. Kansas City

• Decision Date: 15 March 1926
• Citation: 281 S.W. 426,313 Mo. 352
• Parties: THE STATE ex rel. HERMAN G. STOMP v. KANSAS CITY; WILLIAM BUCHHOLZ et al., Members of Board of Fire & Water Commissioners; ALEX. HENDERSON, Chief of Fire Department; CLARENCE I. SPELLMAN et al., Members of Board of Civil Service; GEORGE E. KIMBALL, City Comptroller; BEN JAUDON, City Treasurer; W. W. KNIGHT, City Auditor, and ALBERT I. BEACH, Mayor
• Court: Missouri Supreme Court

281 S.W. 426

313 Mo. 352

THE STATE ex rel. HERMAN G. STOMP v. KANSAS CITY; WILLIAM BUCHHOLZ et al., Members of Board of Fire & Water Commissioners; ALEX. HENDERSON, Chief of Fire Department; CLARENCE I. SPELLMAN et al., Members of Board of Civil Service; GEORGE E. KIMBALL, City Comptroller; BEN JAUDON, City Treasurer; W. W. KNIGHT, City Auditor, and ALBERT I. BEACH, Mayor

Supreme Court of Missouri

March 15, 1926

Peremptory writ denied.

John I. Williamson, Darius A. Brown, John G. Park, R. E. Ball and Milton Schwind for relator.

(1) Relator is entitled to a peremptory writ restoring him to the physical possession of his position and to the payment of the compensation thereof. His discharge was illegal. (a) Relator received no written statement of reasons for removal until after his discharge had been decided upon and the order made. Charter of 1908, art. 15, sec. 10; State ex rel. Hamilton v. Kansas City, 303 Mo. 50; State ex rel. Prior v Kansas City, 261 S.W. 112; State ex rel. Langford v Kansas City, 261 S.W. 115. (b) Relator was entitled to written specification of charges, notice of hearing, hearing and opportunity to controvert charges. Cases supra and State ex rel. Reid v. Walbridge, 119 Mo. 383; Gracey v. St. Louis, 213 Mo. 395; State ex rel. Denison v. St. Louis, 90 Mo. 19. Such hearing must be conducted in conformity to the principles of the common law. State ex rel. Reid v. Walbridge, 119 Mo. 383; 2 Dillon Mun. Corp. (5 Ed.) sec. 480; State ex rel. v. Milwaukee, 147 N.W. 50; Rutter v. Burke, 89 Vt. 14, 29; State v. Mayor, 43 La. Am. 92. The testimony must be delivered under the sanction of an oath. State ex rel. v. Walbridge, 119 Mo. 395; People ex rel. v. Pol. Commrs., 115 N.Y. 40; Rutter v. Burke, 89 Vt. 14. The accused "must have notice, charges preferred against him; a full opportunity to examine and cross-examine witnesses and to be heard on the facts and on the law." State ex rel. v. Walbridge, 119 Mo. 396; Dullam v. Wilson, 53 Mich. 393. It is for the courts to determine the sufficiency of the record and of the alleged causes for removal. State ex rel. Reid v. Walbridge, 119 Mo. 394; State v. Lupton, 64 Mo. 415; State v. Walker, 68 Mo.App. 110; 28 Cyc. 440, 442, 443. (c) Mandamus is the proper remedy and relator is entitled to be thereby restored to his position and to recover the emoluments thereof. State ex rel. Hamilton v. Kansas City, 303 Mo. 74; State ex rel. Chapman v. Walbridge, 153 Mo. 204. (2) The foregoing record of dismissal is insufficient because: (a) It made the department physician and drillmaster triers of the facts; (b) there was never an accusation made, filed or served; (c) there was no hearing before the officer charged by the charter with the duty of acquitting or convicting; (d) there was never accorded to the accused an opportunity to meet an accusation, to summon witnesses, to have them testify nor to be heard upon the law or the facts; (e) the non-delegable power of acquittal and conviction was attempted to be delegated to subordinates; (f) no issue was framed upon which a final judgment of conviction or acquittal could rest.

Solon T. Gilmore, F. W. McAllister, Cyrus Crane, J. S. Cannon and E. F. Halstead for defendants.

(1) Relator was discharged in substantial compliance with the letter and the spirit of the Charter of 1908. Sec. 10, Art. 15, Sec. 16, Art. 11, Charter of 1908; Dalton v. Darlington, 123 A.D. 855, 108 N.Y.S. 626; People ex rel. Donnelly v. Harvey, 127 A.D. 211, 111 N.Y.S. 167; People ex rel. Scheel v. Guilfoyle, 65 A.D. 498, 72 N.Y.S. 891; People ex rel. Kennedy v. Brady, 166 N.Y. 44; Dunphy v. Kingsbury, 159 N.Y.S. 389, 173 A.D. 49. (a) Relator was given a fair hearing in accordance with the rules and customs of the fire department. (b) Relator, having been removed in compliance with the charter provisions, the only question for the court to decide is the good faith of the discharging officer or whether the removal was arbitrary. People ex rel. Kennedy v. Brady, 166 N.Y. 44; 2 McKinney's Consolidated Laws, New York, p. 97; People v. Palmer, 3 A.D. 389, 38 N.Y.S. 651; People ex rel. Davis v. Sayer, 200 N.Y.S. 134, 205 A.D. 562. (c) The writ should be denied for the reason that on account of the facts detailed, it would be the duty of the defendant fire chief to immediately remove relator were he reinstated. State ex rel. Stickle v. Martin, 195 Mo.App. 366; 23 Am. & Eng. Ency. Law (2 Ed.) p. 453; 2 Spelling on Injunctions and Other Extraordinary Remedies, sec. 1380; State ex rel. v. Temperance Assn., 42 Mo.App. 485; Rex v. Axbridge, 2 Cowp. 523; Boose v. Knights Security, 204 Mo.App. 18.

Atwood, J. All concur, except Otto, J., not sitting, and Graves, J., who concurs in part and dissents in part, per separate opinion, and Walker, J., who dissents and concurs in separate opinion of Graves, J.

OPINION

ATWOOD

This is an original proceeding in mandamus to compel reinstatement of relator in the position of motor-driver in the Fire Department of the City of Kansas City, Missouri from which position he was removed on or about December 5, 1924, by the Board of Fire and Water Commissioners and Chief of Fire Department of said city; and to compel payment to relator of the salary attached to said position since the date of relator's removal. In support of his petition relator suggests that the jurisdiction of this court is invoked because:

"(a) Constitutional questions are involved;

"(b) The validity of the 'New Charter' of Kansas City is in issue;

"(c) Numerous lawsuits turning upon the same questions here raised are now pending; and

"(d) The public welfare of Kansas City is vitally affected by these issues, and their speedy and authoritative decision will avoid intolerable confusion in the affairs of that city."

In his brief relator says that the principal questions involved are:

"(1) Is the so-called 'New Charter' of Kansas City claimed to have been adopted February 22, 1925, a valid charter?

"(2) Is a member of the competitive class of the city's civil service entitled to receive written detailed statement of charges and to notice and hearing before discharge?"

This case was argued and submitted along with the case of State ex rel. Attorney-General v. Kansas City et al., reported in 310 Mo. 542 (276 S.W. 389), and by agreement and request of counsel all matters of attack, upon the new charter of Kansas City in both cases, including constitutional questions therein raised, were considered and disposed of in this reported decision, and we there held this new charter valid. However, if relator's removal was illegal on any ground he can in mandamus seek reinstatement and also payment of the salary of which he has been thus deprived. [State ex rel. v. Walbridge, 153 Mo. 194, l. c. 204.] Having heard this case on the above agreed submission we will entertain jurisdiction.

Relator was an employee of the Fire Department under the civil service law contained in Article XV of the Charter of Kansas City then in effect, and which became effective September 3, 1908. The authority relied upon by defendants to remove relator is found in Section 10 of said Article XV, as follows:

"Such heads of departments shall respectively have power to remove or discharge any person holding any office, position, or employment in their respective departments whenever, in their opinion, the good of the public service requires the exercise of such power. It shall be the duty of a discharging officer, upon request of a discharged person, at any time after discharge, to give such person a correct statement in writing of the reasons for his discharge. No person in the city's service shall be removed, reduced in grade or salary, or transferred because of political or religious beliefs or opinions of such persons; nor shall any person in the competitive class of the city service be removed, reduced in grade or salary or transferred without first having received a written statement setting forth in detail the reasons therefor, and at the option of the person who shall have been removed, reduced, or transferred, a copy of such statement shall be filed in the office of the Civil Service Commissioners, together with reply, if any made thereto, by the person removed, and the whole shall be filed and preserved in the office of said commissioners and be open to public inspection."

The head of the Fire Department had the power to remove or discharge relator whenever in his opinion the good of the public service required the exercise of such power. [State ex rel. Hamilton v. Kansas City, 303 Mo. 50.] It is admitted that relator was not removed because of his political or religious beliefs or opinions. At the time of his removal relator was motor-driver in the Fire Department and in the competitive class of the city service. Consequently, the method of his removal must not contravene the last clause of Section 10 above quoted. [State ex rel. Hamilton v. Kansas City, supra.] Whether or not it does is the sole question left in the case. This inquiry should be met with a full understanding of the facts.

From the agreed facts upon which this case was submitted it appears that City Ordinance No. 38227, approved July 16, 1920, adopted the general schedule of all the agents and employees of the Fire Department fixed by the Board of Fire & Water Commissioners on July 12, 1920, and included one hundred motor-drivers, each at an annual salary of $ 1680, and 165 first grade firemen (all capacities) as required and when employed, each at an annual salary of $ 1560, the latter number being subsequently increased to 175 and salary raised to $ 1620 per annum. Section 3 of this ordinance also provided that all vacancies, except the position of substitute or second grade fireman, occurring in any position...