The State ex rel. Cameron v. Shannon

Decision Date03 March 1896
Citation33 S.W. 1137,133 Mo. 139
PartiesThe State ex rel. Cameron v. Shannon
CourtMissouri Supreme Court

Peremptory writ awarded.

Karnes Holmes & Krauthoff and Frank H. Dexter for relator.

(1) A peremptory writ of mandamus should issue upon the facts presented, disregarding the contest sought to be raised by respondent concerning relator's right and title to the office of superintendent of waterworks. It is well settled by the general doctrine relating to the writ of mandamus, and by a consistent line of decisions of this court, that in this proceeding a contest for an office will not be determined. State ex rel. v. Taaffa, 25 Mo.App. 570; State ex rel. v. Auditor, 36 Mo. 72; State ex rel. v May, 106 Mo. 488. (2) It was held in State ex rel v. Vail, 48 Mo. 215, that where a commission had been issued that it invested the incumbent with the title and was prima facie evidence of his right to the office. (3) While the right to an office can not be determined in a proceeding of mandamus to compel the payment of salary to a person claiming such office, or to compel the performance of official duty alleged to be obligatory by reason of the official character of such officer, the courts may compel recognition of the claimant who has the better prima facie right until by contesting the election, or by proceeding in quo warranto, the rights of the party are finally determined. State ex rel. v. Johns, 81 Mo. 17; McQuillin on Pleading and Practice, sec. 1673, page 365, note 101. (4) On application for mandamus to obtain possession of a public office, the court will not go behind the certificate of election and try the actual title to the office. State v. Johnson, 16 So. Rep. (Florida) 786. (5) The official duty of respondent, in so far as acting upon the bond in question is concerned, is simply to satisfy himself as to whether or not the sureties thereon are good and sufficient, and if they are found to be so, to approve the bond. His duty and authority are solely and alone to this one function limited. An officer charged with a duty by law of approving the bond of officers is not permitted to pass on the qualifications of applicants for the office. People v. Perry, 13 Barb. 206; Mobile v. Cleveland, 76 Ala. 321; State ex rel. v. Churchill, 41 Mo. 41; State ex rel. v. Lafayette County Court, 41 Mo. 221; State ex rel. v. County Court, 41 Mo. 247; State ex rel. v. County Court, 41 Mo. 545. (6) The appointment of relator made by the board of public works was duly and regularly made by the mayor and was not affected by the attempted revocation subsequently sought to be made by the mayor. Marbury v. Madison, 1 Cranch, 137; State ex rel. v. Barbour, 53 Conn. 81; Ex parte Reno, 66 Mo. 266; People v. Fitzsimmons, 68 N.Y. 514; Thomas v. Burns, 57 Am. Dec. 154. (7) The charter and ordinances require the appointment of superintendent of waterworks by "a majority of the members of the upper house" and not a majority of the upper house.

C. O. Tichenor, also, for relator.

H. C. McDougal, C. S. Palmer, and F. F. Rozzelle for respondent.

(1) First. Under the express terms of the ordinance under which he was appointed, relator is not an officer but a mere employee. Second. He can perform only such duties as may be required by the board of public works; is "under the supervision and direction" of said board; is to be paid "as other city employees," and may at any time be removed at the mere pleasure of that board. Secs. 8 and 9, Ordinance. (2) These provisions of ordinance fix his status as an employee subject to removal at pleasure, and in such cases the writ of mandamus will not lie. R. v. Covertry, 2 Salk. 430; Sandys, Ex parte, 4 B. & Ad. 863; Evans v. Heart of Oak B. Soc., 12 Jur. (N. S.) 163; Q. v. Raines, 3 Salk. 233. (3) The mayor revoked and withdrew his consent to the appointment within the hour that it was given. No rights had accrued to anyone, nor had any other officer or body or person acted upon his approval, nor was the appointment then complete. At that period the mayor had the right to revoke and withdraw his consent. In all cases holding the contrary it will be found upon examination that some other officer or body or person had acted upon the act of the officer making or approving the appointment, or that the act in question was the last step in and completed the appointment. Marbury v. Madison, 1 Cranch, 137; Conger v. Gilmer, 32 Cal. 76; 19 Am. and Eng. Encyclopedia of Law, 426. Even after confirmation by senate, president or governor may withhold commission. Throop on Pub. Off., sec. 87, et seq. (4) The appointment of a superintendent of the waterworks was not among the cause or causes for which the council was convened at the special session in question. The charter expressly provides that at such special meetings the business to be transacted by the council "shall be confined to such cause or causes" as shall be stated in the mayor's message. Hence, it was not within the power of the council to either consider or act upon this appointment. Sec. 12, art. 4, charter, and other sections; City of St. Louis v. Withaus, 90 Mo. 646; 15 Am. and Eng. Encyclopedia of Law, 1028, 1029, and cases cited. (5) The relator does not have a clear right either to the remedy which he seeks nor yet to the office or position claimed. Hence, mandamus should be refused. State ex rel. v. Albin, 44 Mo. 346; State ex rel. v. Newman, 91 Mo. 445; State ex rel. v. Williams, 99 Mo. 291; Spencer County Court v. Harcourt, 4 B. Mon. 499. (6) Where there is any discretionary power given an officer, mandamus will not lie to compel him to act in a particular way. Cases last cited, and Dalton v. State, 44 Ohio St. 652; State v. Shaw, 43 Ohio St. 324; People v. Knickerbocker, 114 Ill. 539; Dechert v. Com., 113 Pa. 229; Swan v. Gray, 44 Miss. 397; Mechem, Pub. Offices, sec. 657; Arapahoe County v. Crotty, 9 Colo. 318; High, Extr. Rem., sec. 49, and cases cited.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Mandamus.

Burgess J.

This is an original proceeding by mandamus to compel the comptroller of Kansas City to approve the bond of relator, who claims to have been duly appointed to the office of superintendent of waterworks of said city in pursuance of its charter and ordinances, and by and with the consent of its mayor.

The petition avers, that the relator, William L. Cameron, "is now a resident of Kansas City, Jackson county, Missouri, where he has lived for several years last past, and that John F. Shannon, respondent herein, is the duly appointed and qualified comptroller of said city, and that said Kansas City is a municipal corporation, duly created and organized under and by virtue of the provisions of section 16, article 9, of the constitution of Missouri, and by virtue of the charter adopted by the qualified voters of said city, at a special election held April 8, 1889."

By the provisions of section 1, article 1, and section 1, article 3, and by the terms of article 13 of said charter, the said city is authorized to operate and maintain a system of waterworks in said city, and by the provisions of said article 13, the board of public works has the control and management of said waterworks, and said board has power to appoint, with the consent of the mayor and the majority of the members of the upper house of the common council, such chief superintendent, and subordinates as may be necessary for the management and efficient operation of said works, and as may be provided by ordinance.

Said city is now, and has been for a long time, in possession of, owning, and operating a system of waterworks.

There was duly enacted by the said common council of said city, and duly approved by the mayor, on the twenty-seventh day of April, A. D. 1894, ordinance number 5801, entitled, "An ordinance relating to the management and control of waterworks." Sections 8 and 9 of said ordinances read as follows:

"Section 8. There is hereby established a department of the board of public works to be called the department of waterworks. The head of this department shall be the superintendent of waterworks, who shall be appointed by the board of public works, with the consent of the mayor and a majority of the members of the upper house of the common council. The superintendent, first appointed under this ordinance, shall hold his office for one year, and thereafter the superintendent shall be appointed for a term of two years. He may be removed at any time by a vote of three fourths of the members of said board, and in case of a vacancy for any cause, his successor shall be appointed as above provided. Said superintendent shall, before entering on the duties of his position, give bond to the city for the faithful performance of his duties as such superintendent in the sum of ten thousand dollars, with at least two good and sufficient sureties, to be approved by the city comptroller. He shall receive as full pay for his service the sum of three thousand dollars per annum, payable monthly, in the same manner as other city employees.

"Section 9. The superintendent of waterworks shall have under his special charge the pumping machinery, conduits, reservoir, water pipes, and the operation of the same. The placing and repairing and maintenance of meters, valves, fire plugs, and all other property and appurtenances of the water supply and distribution. He shall superintend the enlargement and extension of waterworks, superintend and direct the laying of pipes, making shut-offs, and tapping of mains, and shall perform all duties in relation thereto that may be required of said board, and he shall be under the supervision and direction of said board."

On the fourth day of November, 1895, the said board of public works duly assembled, passed...

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3 cases
  • Kavanaugh v. Gordon
    • United States
    • Missouri Supreme Court
    • 2 Julio 1912
    ... ... JOHN P. GORDON, State Auditor Supreme Court of Missouri July 2, 1912 ...           ... Pars. 15 and 26, Sec. 53, Art. 4, Constitution 1875; ... State ex rel. v. St. Louis, 216 Mo. 94; State ex ... inf. v. Washburn, 167 Mo. 393; ... rel. v. Johnson, 123 Mo. 43; State ex rel. v ... Shannon, 133 Mo. 139; State ex rel. v. Valle, ... 41 Mo. 30; United States v ... ...
  • The State ex rel. North & South Railway Co. v. Meier
    • United States
    • Missouri Supreme Court
    • 29 Marzo 1898
    ... ... Berg, 76 Mo. 136; State v. St ... Louis School Board, 131 Mo. 505; State v. Joplin ... Water Works, 52 Mo.App. 312; State v. Shannon, ... 133 Mo. 139; State v. Flad, 23 Mo.App. 185; ... State v. School Board, 134 Mo. 296; Littlefield ... v. Newell, 85 Me. 246; State v. Monroe, ... ...
  • The State ex rel. Rosenthal v. Smiley
    • United States
    • Missouri Supreme Court
    • 3 Julio 1924
    ... ... v. May, 106 Mo. 488; ... State ex rel. v. Knott, 207 Mo. 167; State ex ... rel. v. Morehead, 256 Mo. 683; State ex rel. v ... Shannon, 133 Mo. 139; State ex rel. v ... Sheppard, 192 Mo. 497. (2) Being a public officer, ... relator could be removed from office only for cause, ... ...

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