Westberg v. City of Kansas

Decision Date30 April 1877
Citation64 Mo. 493
PartiesJOHN P. WESTBERG, Respondent, v. THE CITY OF KANSAS, Appellant.
CourtMissouri Supreme Court

Appeal from Jackson County Circuit Court.

J. Brumback, for Appellant, cited: Philadelphia vs. Given, 60 Penn. St. 140; gh Ex. Rem. § 70; Chart. Kas. City, art. 4. §§ 7, 22; Dill. Mun. Corp. [[[[[1 ed.], § 188 and cases cited; Ex parteHennen, 13 Pet. 230; 9 Wis. 258, 259; Primm vs. Carondelet, 23 Mo. 22; State vs. Davis, 44 Mo. 129; State vs. Lingo, 26 Mo. 498, 499; Moore vs. Wingate, 53 Mo. 405; State vs. Common Council, 9 Wis. 263; Ex parteHennen, 13 Pet. 259, 260; Holbrook vs. Trustees, 22 Ill. 539; Bowerbank vs. Morris, Wall. C. C. R. 124; U. S. vs. Bank Arkansas, Hempst. C. C. 460; State vs. Clark, 52 Mo. 513; Auditor vs. Benoist, 20 Mich. 176; Smith vs. The Mayor, 37 N. Y. 518; Kiley vs. Cranor, 51 Mo. 543; Dill. Mun. Corp. §§ 233-237, and cases cited; Wright vs. Jacobs, 61 Mo. 23.

White & Titus, for Respondent, cited: Dill. Mun. Corp. [1 ed.], §§ 151, 174, 751; Stadler vs. Detroit, 13 Mich. 346; Shaw vs. Mayor, etc., of Macon, 19 Ga. 468; Same case, 21 Ga. 280; Mayor, etc., of Macon vs. Shaw, 25 Ga. 590; Carroll vs. Siebenthaler, 37 Cal. 193; Western Savings Fund Society vs. Philadelphia, 31 Penn. St. 175, 185; Nearns vs. Harbert, 25 Mo. 353; Mooney vs. Kennett, 19 Mo. 555; State vs. Oddle, 42 Mo. 214; Clarke vs. Dutcher, 9 Cow. 681; Mowatt vs. Wright, 1 Wend. 360, 364; Supervisors, etc., vs. Briggs, 2 Hill N. Y. 135; Same vs. Same, 2 Denio 39-41; Snelson vs. State, 16 Ind. 29, 31-33; Nelson vs. Milford, 7 Pick. 26, 27; The President, etc., of Bank of United States vs. Dandridge, 12 Wheat. 70, 73; Proprietors of Canal Bridge vs. Gordon, 1 Pick. 304, 307; The United States vs. LeBaron, 19 How. 78, 79; State ex rel. vs. Common Council of Jersey City, 1 Dutch. 530, 544; Dill. Mun. Corp. 218, § 183; State ex rel. Bryson vs. Lingo, 26 Mo. 496; Commonwealth vs. The President, etc., of St. Patrick's Society, 2 Binney, 441, 450; State ex rel. vs. Bryce, 7 Ohio, 414, 416; State ex rel. vs. Chamber of Commerce of Milwaukee, 20 Wis. 63, 71; Commonwealth vs. Sutherland, 3 Serg. & R. 145; State vs. Trustees of Vincennes University, 5 Ind. 89, 90; City of Madison vs. Korbly, 32 Ind. 74; Chart. City of Kans. [1870], p. 337, art. 4, § 7; Ib. p. 336, art. 3, § 36; Rev. Ord. City, c. 23, § 1; Dill. Mun. Corp. [1 ed.], §§ 188, 191; Rex vs. Richardson, 1 Burrows, 537, et seq.; Dill. Mun. Corp. p. 228, note 3; Caulfield vs. State, 1 S. Car. 461; Western Saving Fund, etc., vs. Philadelphia, 31 Pa. 175, 185; Cameron vs. School District No. 2, 42 Vt. 507; Supervisors of Niagara vs. The People, 7 Hill, 511; City of Covington vs. Ludlow, 1 Metc. [Ky.] 295.

HENRY, Judge, delivered the opinion of the court.

On March 19, 1872, Westberg sued the City of Kansas for $900.

The petition states that on or about May 2, 1871, the city, through its proper officers, employed, and duly appointed and confirmed Westberg, the respondent, in the capacity of policeman of the city, and the mayor and clerk of the city gave him a certificate, or commission, showing his employment as policeman for one year; that the city agreed to pay him $75 per month for his services; that he entered upon the discharge of his duty and continued therein “until on or about the fifteenth day of May, A. D. 1871, when he was suspended by defendant from said employment, without provocation or cause, and remained so suspended from his duties aforesaid for several days; that plaintiff, after the said fifteenth day of May, A. D., 1871, offered to continue in and perform all the duties of policeman aforesaid for said defendant, but defendant wrongfully, and without cause, prevented plaintiff from fulfilling his said contract of employment, by dismissing him, and refusing to pay him for his services aforesaid.”

Prayer for judgment for $900.

The city filed an amended answer February 1, 1873, alleging: that the mayor and city clerk of the city issued to Westberg the certificate, or commission, mentioned in the petition, dated May 3, 1871 (giving a copy thereof); that the city did not, through its proper officers, employ, duly appoint or confirm him in the capacity of policeman; that he was not appointed as policeman otherwise than by being appointed by the mayor of defendant, and such appointment being confirmed by the common council of the city, by vote or resolution; that he was not appointed by ordinance, nor pursuant or according to any ordinance;” that under color of the appointment mentioned in the answer, and without any other right, plaintiff acted and served as policeman from May 3, 1871, to May 15, 1871, and for such service the city paid, and he received, $30 in full; that the city did not agree to pay him $75 per month, or anything whatever; that after he was appointed policeman, as disclosed in the answer, and not otherwise, and received his commission, and on May 15, 1871, the mayor of the city, for good cause, suspended, and, by and with the consent of defendant, removed him from his office and employment; that the city did not wrongfully and without cause prevent him from fulfilling his alleged contract of employment, nor wrongfully and without cause dismiss him and refuse to pay him for his services.

On motion of plaintiff the court struck out of this answer the words, “by ordinance.” The city excepted to this.

Plaintiff replied to this answer, denying the allegations of new matter, except the payment of the $30.

The issues thus joined were tried by the court without a jury, May 24, 1875, and judgment rendered against the city for $1,078. The city the same day filed a motion for a new trial, which the court at the same term, on May 27, 1875, overruled. At the same term, and on June 5, 1875, the city tendered its bill of exceptions, which was allowed, when it filed an affidavit and gave bond and appealed.

The bill of exceptions discloses all the testimony on the trial.

Plaintiff read in evidence an ordinance of the city, approved May 2, 1871: To create, regulate and establish the police of the city, and to prescribe their duties and powers. The first section is as follows: Sec. 1. The police of the city of Kansas is hereby created, which shall consist of 24 policemen and 2 sergeants. They shall be appointed by the mayor and marshal, subject to the confirmation of the common council in the same manner as other appointive city officers.” Section 2 defined their duties. Section 3 fixed their pay at $75 per month.

Plaintiff read in evidence his commission mentioned in the pleadings. He also read from the record of proceedings of the common council of the city the following entry: May 2, 1871. The following nominations for policeman confirmed: John C. Besher, John P. Westberg.”

Thomas M. Speers, a witness for respondent, testified that he was city marshal of the city in 1871, and had charge of the police; that in May, 1871, Westberg was suspended, and he did not put him on duty after that; “that another man served in his place afterward, the balance of the year, and commenced at first meeting of the common council after plaintiff ceased to perform duty.”

Respondent also read in evidence an ordinance passed June 25, 1869, providing for the trial and removal from office of city officers in certain cases. This ordinance provided, sec. 1: “That in all cases where any city officer of the City of Kansas, other than the mayor and council of said city, and those officers who are appointed by the mayor and council, shall be guilty of probable omission of duty * * or of malfeasance, * * or of any misdemeanor, * * such officer shall be subject to trial and removal from office by the common council as hereinafter provided.”

Section 2 provided for charges in writing, notice to the party complained of, a trial before the common council, and in case of conviction, judgment of removal from office, &c. but that “no judgment or sentence of conviction, and removal from office, shall be given against any officer at any trial without the concurrence of two-thirds of the council present and acting.” The other two sections refer to, and regulate, details of the proceedings.

The city, at the time, objected to the reading of this ordinance of June 25, 1869, in evidence, because: 1, the law under which the ordinance was passed had been repealed in 1870; 2, the ordinance was invalid, because not supported or upheld by any law in force in 1871; 3, the law did not apply to the suspension or removal from office of policemen; 4, the ordinance was immaterial and irrelevant, and had been repealed by the charter of the city of March 16, 1870.

The court overruled the objections and received the ordinance in evidence, and the city excepted.

John C. Besher, a witness for plaintiff, testified that he knew Westberg in 1871; that he was notified by the marshal that he was suspended; that he reported for duty several times afterward; that “I (witness) never knew of his removal.” This was all the proof for respondent.

The testimony for the city consisted of several documents and the statements of two witnesses: Danied Geary, city clerk in 1871, and A. Mayer, city clerk in 1875. The documentary proofs were:

1. A message from the mayor of the city to the common council of the city, viz:

“MAYOR'S OFFICE, Kansas City, Mo., 15th May, 1871.

To the Honorable Common Council,

Gentlemen: I have this day suspended from duty the following policemen, to-wit: John P. Westberg and John C. Besher. I would recommend their removal from the police force upon the following charges, to-wit: The unnecessary shooting of Michael Jones on the night of the 12th instant. I herewith enclose the statement of Michael Jones as to the manner of said shooting. Under all the circumstances of the case, as I learn them, these policemen were guilty of a flagrant disregard of duty and the protection of the citizens.

I am, respectfully,

WILLIAM WARNER, Mayor.”

2. An indorsement on this message made by Daniel Geary, the city...

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