Howard v. City of St. Louis

88 Mo. 656 | Mo. | 1886

Henry, C. J.

Prior to the adoption of the scheme ■and,charter by which the city was separated from the county of St. Louis, Howard was appointed by the county court of the county resident physician of the insane asylum. After the vote on the scheme for separation there was a controversy in regard to its adoption, and pending litigation to determine that question the ■county court of the county, ordered plaintiff to obey its ■orders in relation to the management of the asylum, and about the same time he was ordered by the mayor of the ■city to obey the city authorities in its management. If the scheme and charter was adopted the asylum fell within the limits, jurisdiction and control of the city.

The plaintiff, it seems, was loyal to the city, and # .signified his willingness to obey its authority, and was 'directed by the mayor to “hold the fort,” the county' ■court having prepared to take forcible possession of the asylum, and place Hr. C. W. Stevens in charge as resident physician. Preparations were made on the other side to resist such attempt, and pending these preparations for war, the county court and the mayor of the city had a conference and it was agreed by the belligerents that plaintiff might remain in the building, but that Stevens should take charge as resident physician until a judicial determination of the controversy. If the decision should be that the scheme and charter had been adopted plaintiff was to be re-instated as resident physician ; otherwise Stevens should continue in the office. The litigation resulted in favor of the scheme and charter. The county paid Stevens his salary for the-time he had served, but the city refused to pay plaintiff a salary for the same period of time, and plaintiff sued to recover it, and had a judgment in the crrcrdt court, which was affirmed pro forma by the court of appeals, and the base is here on the city’s appeal.

Plaintiff was legally in office under the city, after receiving the mayor’s order to continue as resident physician, until the armistice and agreement by which he was superceded. He was virtually suspended, and his case Is not materially different in principle from that of Westberg v. The City of Kansas, 64 Mo. 493. West-berg was legally suspended and claimed his salary for the time he was suspended, but this court held he was not-entitled to it. Plaintiff, after the agreement, between the mayor and the county court, remained in the building under the terms of that agreement, but not as-resident physician. He was under no obligation to remain there, but merely had permission to do so. He was, in effect, by that agreement, suspended during the litigation then pending in relation to the adoption of the scheme and charter. That he protested against the agreement makes no difference. The mayor had the power to suspend or remove Mm under section 9, of the-scheme. The city was not bound to resort to war and bloodshed to keep the plaintiff ip office as resident physician. To avoid the serious consequences which might reasonably have been apprehended from a collision between the authorities of the city and county was a sufficient ground for making- the agreement and suspending the plaintiff. As a matter of course plaintiff is entitled to his salary to the date of that agreement.

The judgment is reversed and the cause remanded.

All concur.