The State ex rel. Murphy v. Burney

• Decision Date: 29 January 1917
• Parties: THE STATE ex rel. DAVID A. MURPHY, Member of Board of Police Commissioners, v. CLARENCE A. BURNEY, Judge of Circuit Court, HIRAM W. HAMMIL et al
• Court: Missouri Supreme Court

191 S.W. 981

269 Mo. 602

THE STATE ex rel. DAVID A. MURPHY, Member of Board of Police Commissioners, v. CLARENCE A. BURNEY, Judge of Circuit Court, HIRAM W. HAMMIL et al

Supreme Court of Missouri

January 29, 1917

Writ granted.

Isaac N. Watson and John T. Harding for relator.

(1) A court of equity has no jurisdiction to enjoin relator from sitting at the hearing. Secs. 9771, 9776, 9784, 9785, 9769 R. S. 1909. The statute created, not a judicial board, but an administrative board, prescribed its duties, prescribed the manner of organizing a police force, and an exclusive manner of removal. The only way to remove respondents Hammil and James is the one prescribed by the statute, and this way has been followed. Counsel's contention that a police commissioner who files a charge against an officer is disqualified to sit at the hearing has no sure footing at law, and would be impracticable and render the police department inefficient. The chief duty of a commissioner is to maintain peace and to suppress vice. The statute, section 9785, unquestionably provides for commissioners to file complaints. Shannon v. Magee, 66 N.Y.S. 849; State v. Police Commissioners, 16 Mo.App. 48; State ex rel. v. Bright, 224 Mo. 514. (2) A court of chancery has no jurisdiction to enjoin relator from hearing the charges. Hammil and James have their remedy at law. Vitt v. Owens, 42 Mo. 512; State ex rel. v Aloe, 152 Mo. 480. (3) Relator is not required to plead to the jurisdiction of the circuit court before the petitions for this writ. State ex rel. v. Bright, 224 Mo. 526; State ex rel. v. Sale, 188 Mo. 496; State ex rel. v Aloe, 152 Mo. 480.

Robinson & Goodrich and F. R. Stivers for respondents.

(1) It is well settled that prohibition lies only where the inferior court has no jurisdiction. Prohibition does not lie to correct errors. It matters not that the petition pending in the inferior court does not state a cause of action. The only question is one of jurisdiction. State ex rel. v McQuillin, 260 Mo. 164; State ex rel. v. McQuillin, 262 Mo. 256; State ex rel. v. Gates, 190 Mo. 540. (2) The theory advanced by the injunction suits was that, under the law, relator being the real prosecutor and having already prejudiced the guilt of officers Hammil and James, was disqualified from acting as one of the triers of the charges filed against plaintiffs in those suits. In other words that in hearing said charges the members of the Board of Police Commissioners acted in a quasi-judicial capacity, and, generally, one cannot act in such capacity in his own case. Whether this be correct or not, Judge Burney's court had jurisdiction to pass upon it, and to decide that it was or was not correct. If decided erroneously, the error could have been corrected on appeal. The rule is well settled that a court of equity has power to prevent by injunctive relief all such officers as relator from violating their official duties. State ex rel. v. Lucas, 236 Mo. 31; Stahlhut v. Bauer, 51 Neb. 68; Armitage v. Fisher, 26 N.Y.S. 364. (3) The merits of the injunction suits not being involved herein are not open to discussion, but we submit a few remarks on that subject. We do not claim that relator was a judge. We do not deny that there is a difference between administrative boards and judicial tribunals. But we claim that where a member of a police board or other such board sits in the hearing of charges against one of its officers, he acts in a judicial capacity, and if he is not the sole member of the board, but there are other members able to act, and he is the real prosecutor, he cannot act and has prejudged the case. The principle which forbids a man to act as judge in his own case would apply. If there is only a single member of such a board, he can act both as judge and prosecutor, out of the necessity of the situation, unless the statute forbid. In the absence of such a prohibition, the necessity of the case would imply power to act in both capacities. This is the distinction. People ex rel. v. Board of Trustees, 39 N.Y.S. 607; People ex rel. v. Waldo, 212 N.Y. 156; People ex rel. v. Roosevelt, 23 A.D. 533; Reid v. Medical Society, 156 N.Y.S. 780. (4) The positions of respondents, Hammil and James, are property rights and they are entitled to have such positions protected by injunction when other persons conspire to interfere with their enjoyment. Clarkson v. Laiblam, 178 Mo.App. 708; In re Heffron, 179 Mo.App. 639. (5) The better rule requires it to be made to definitely appear that the trial court has assumed jurisdiction before a writ of prohibition can issue. It is in the discretion of the supervising court to refuse to grant prohibition unless the lower court has overruled the plea to its jurisdiction. State ex rel. v. Riley, 127 Mo.App. 479.

FARIS, J. Bond, Blair and Williams, JJ., do not sit.

OPINION

In Banc.

Prohibition.

FARIS J.

This is an original proceeding in prohibition against respondent Clarence A. Burney, as one of the judges of the circuit court of Jackson County, to prohibit him from taking further cognizance of certain suits by injunction brought by respondents Hiram W. Hammil and R. L. James, the object of which latter proceedings was to enjoin relator (who is one of the Police Commissioners of Kansas City) from sitting in the hearing of certain charges pending against said Hammil and said James before said commissioners.

As forecast above, respondents Hammil and James are members of the police force of Kansas City; Hammil being chief of police and James a captain of police therein. Prior to the commencement before respondent Burney of the injunction proceedings, certain charges were caused to be filed by relator David A. Murphy in his capacity as a member of the Board of Police Commissioners of Kansas City, against respondents Hammil and James, which charges involved the official conduct of said last-named respondents as chief of police and captain, respectively. While separate actions were brought by Hammil and James seeking to enjoin relator as aforesaid, it is not necessary to cumber the record with the allegations in both of these injunction proceedings. That brought by respondent Hammil, we take it, is a fair type of both, and it contains, after the formal allegations of the official character of plaintiff therein as chief of police and defendant as commissioner of police, respectively, the below allegations, to-wit:

"Defendant has caused to be prepared and filed with the Board of Police Commissioners aforesaid, complaints against plaintiff, charging him with conduct unbecoming an officer of the police department, and has caused said complaints to be set for hearing before said Board of Police Commissioners at two o'clock on the afternoon of Wednesday, December 6, 1916; and defendant threatens to and will, unless restrained by this court, take part as a member of said Board of Police Commissioners in hearing and deciding said complaint, at such time as they may be called up for hearing before said board.

"Some weeks ago defendant wrongfully, fraudulently, oppressively and wickedly conspired and confederated with one John P. Mullane and others, all of whose names he is now unable to state, to cause the dismissal and removal of plaintiff from his said position and office as chief of police of said police department, and as part and parcel of said conspiracy said complaints were prepared by said Murphy in his own handwriting, but said Murphy fraudulently, wickedly and oppressively used his position as said commissioner to coerce and force a probationary patrolman of said city to sign charges to be preferred against plaintiff, so that the true attitude and connection of defendant therewith might be concealed."

The actions for injunctions filed respectively by respondents Hammil and James coming on to be heard before Judge Burney on December 6, 1916, he issued therein a temporary restraining order and fixed December 9, 1916, for hearing the application for the issuance of a temporary injunction. Pending the hearing upon such injunction relator presented his petition to this court and we issued therein a provisional writ of prohibition, directed to Judge Burney, prohibiting him, till our further order, from hearing or proceeding further in said injunction suits. Thereafter Judge Burney filed herein his return; following which, relator filed a motion for judgment on the pleadings.

The case has been briefed and being a matter wherein both parties deem that the public interests require a speedy determination, it was submitted to us without argument; an order entered herein making our provisional writ absolute, and the matter of filing a written opinion deferred till a more convenient season.

The sole proposition involved is whether relator Murphy, who caused to be filed the charges against respondents Hammil and James, is for that he caused the filing of said charges, disqualified from sitting as one of the Police Commissioners of Kansas City in the trial of said latter respondents upon such charges; relator taking the position that he is not so disqualified and respondents taking the position that he is disqualified. If he is disqualified then our preliminary writ herein should be quashed; if he is not, then such writ must be made absolute.

The Board of Police Commissioners of Kansas City consists of two members (who are appointed by the Governor) and of the mayor of that city, who is a member ex officio of such board. It thus appears as a matter of interest, without perhaps affecting the point at issue, that there are two members of the board charged under the statute with the duty of trying the charges against respond...