| Mo. | Jul 6, 1897
Lead Opinion
An information in the nature of
quo warranto has been filed in this court by the attorney-general, directed against Thomas N. Yallins, respondent herein, its purpose being to inquire quo warranto said Vallins entered into, used and exercised the office of “ chief of police ” of the city of Kansas.
The information undertakes to specify the grounds upon which it proceeds; but of course this is wholly unnecessary, since in these ex officio informations the State is under no obligation to show anything on its part; a charge in general language that the respondent has intruded into, usurped and unlawfully exercised the functions of a certain office is all that is required to put him to his answer. Mechem’s Pub. Off., sec. 491; Tomlins’ Law Dic. Tit. Quo. War. 281; State ex inf. Dearing, Pros. Att’y, v. Berkeley, 140 Mo. 184" court="Mo." date_filed="1897-06-22" href="https://app.midpage.ai/document/state-on-inf-dearing-v-berkeley-8012538?utm_source=webapp" opinion_id="8012538">140 Mo. 184, ante.
In this case, to' the information, the respondent has interposed a dilatory plea, to wit, a plea to the jurisdiction of this court, which, omitting caption, is
With reference to that portion of the plea which alleges that “ by virtue of law in such cases made and provided, said board of police commissioners is invested with exclusive jurisdiction in the premises,” it is sufficient for the present to say, as was in substance and effect said in a recent case, that since this court acquires its jurisdiction from the organic law of this' State, it is quite beyond the power of the legislature, even if so intended, to abate by one jot or one tittle the Constitution conferred jurisdiction of this court; and this is true although similar jurisdiction elsewhere be conferred oh inferior courts or boards. State ex inf. Att’y-Gen. v. Equitable L. & Inv. Co., not yet reported.
The chief point, however, of contention in this cause is to be determined upon an examination of certain sections of the charter of Kansas City, which are as follow:
“Sec. 21. No person shall be appointed policeman or officer of police who shall have been convicted of any offense, the punishment of which may be confinement in the State penitentiary, or against whom an indictment for any such offense maybe pending; nor shall any person be appointed who is not proven to be a citizen of the United States, or who can not read and write the English language, or who does not possess ordinary physical strength and courage.
*530 “Sec. 22. The first employment of policemen shall be for a probationary term of six months; and the board of police may, in its discretion, discontinue their services at any time. Having served six months’ probationary service to the satisfaction of the board, such policemen may be appointed for a term of three years, and in case complaint be made against them, thej7 shall be subject to removal only for cause, after a hearing by the board, and said board is hereby invested with exclusive jurisdiction in such matters. Whenever the board is satisfied that any person holding a commission under them is not a proper person to discharge the duties of a police officer, he may be discharged at any time without any complaint having been made against him.
“ See. 23. Policemen whose term of service shall have expired, and who, during the term of their appointment, shall have faithfully performed their duty, shall, if otherwise qualified, be preferred by the board in making new appointments. The board may, in its discretion, make special provisions for policemen and officers •who have grown old in the service, or those crippled while in the discharge of their duty so as to unfit them for active work, either by pension, not to exceed fifty dollars per month, or assigning them to special duty at a proper salary.
“Sec. 24. The board may, as the service requires, appoint officers and patrolmen as follows: A chief of police, at a salary not exceeding four thousand dollars per annum, and he shall not receive any fees or any perquisites; one inspector or chief of detectives, at a salary not exceeding two thousand dollars per annum; a secretary of the board, at a salary not exceeding two thousand dollars per annum; captains not exceeding one for each police district, at a salary not exceeding eighteen hundred dollars per annnum; lieutenants, not*531 to exceed one for each, police district, at a salary not to exceed fifteen hundred dollars per annum; sergeants, not to exceed four for each police district, at a salary not exceeding twelve hundred dollars per annum ; a secretary to the chief, at a salary not exceeding twelve hundred dollars per annum; a police surgeon, ata salary not •exceeding fifteen hundred dollars per annum, who shall perform such additional duties as may be prescribed by ordinance; police detectives not exceeding one for every fifteen patrolmen, at a salary not exceeding fifteen hundred dollars per annum; patrolmen, not to exceed one to each one thousand inhabitants of the city, the estimate to be taken from the best known sources for obtaining such ' information, as may be prescribed by ordinance; provided, however, that for extraordinary emergencies the board may raise such additional force as may be deemed necessary in their judgment. The salary of regular patrolmen shall not exceed ninety dollars per month, and that of probationary patrolmen shall not exceed sixty dollars per month. The salaries of, all officers and patrolmen of the police force shall be fixed from time to time by the board of police commissioners, not to exceed, however, the limits herein specified.
“Sec. 25. The officers, patrolmen and all attaches of the department shall be paid monthly as hereinfore provided.
“Sec. 26. The board may, in its discretion, require a bond with security to be approved by the board, of any officer or member of the police, in any reasonable sum, conditioned for the faithful performance of duty, and the proper care and disposition of money or property placed in his charge.
“Sec. 27. Whenever any vacancy shall take place in any grade of officers except the chief, it shall be*532 filled from the next lower grade, if competent men can be found therein.
‘‘See. 32. No officer or policeman shall be allowed to receive any money as a reward or gift for any service he may render, without the consent of the board, and when such consent is obtained twenty per cent of the gross amount thereof shall be paid into the treasury of the police relief association."
The claim has been made on behalf of respondent, both in plea and brief, that inasmuch as the appointment was merely “probationary” under the provisions of section 22, article 11 of the charter, therefore respondent did not hold an office which proceedings in quo warranto could reach.
Let us examine this claim and the provisions of the charter which bear upon it at the same time. Making such examination, it can not escape observation that section 21 heretofore quoted draws a plainly marked distinction between a ‘‘policeman77 and an “officer of police77 by saying: “No person shall be appointed policeman or officer of police,’’-etc. It is quite true that the word “policeman” may be used as a generic term, and when so used may equally apply to any member of the police force, be his rank and station what it may; but this can only be true when the word “policeman” is used alone as a generic term and as descriptive of the whole police force, officers as well as men, and not when officers and men are carefully segregated from each other in meaning in apt terms of distinctive designation as in the charter now under consideration.
This process of differentiation between officers and men. becomes more and more marked as we make progress through other quoted sections of the, charter. Thus in seeton 22 it is said: “The first employment of policemen shall be for a probationary term of six months; and the board of police may, in its discretion,
Here “policeman” is again differentiated from “police officer.” The former can only be employed at the first for a probationary term of six months, and during that period the board of police may discontinue his services at any time, but having served for the probationary period to the satisfaction of the board, he may be appointed for a term of three years, in which case he can only be removed for cause on complaint made, and after a hearing by the board, which is given exclusive jurisdiction in such matters (which obviously only means and refers to jurisdiction as to the removal of a policeman for misbehavior or dereliction of duty, after he has entered on his three years term.) Not so, however, with a “police officer,” as he may be discharged at any time without complaint being made, cause alleged or hearing had.
So, also, in other sections the like distinction between officers and men is kept prominently in view. Thus in section 23 the board are authorized to “make special provision for policemen and officers who have grown old in the service,” etc., while only to “-policemen” whose term of service has expired, etc., is preference to be made by the board in making new appointments.
But one point remains to be disposed of; it is this: The assertion is made by counsel for respondent in substance, that inasmuch as proceedings in quo war-ranto are governed here by the common law, that in consequence of this, it was not admissible to plead at the same time to the jurisdiction and also to the merits, and the intimation is given that there are other matters yet held in reserve and to be brought forward in resistance to the information. On this it is enough to say that although the present proceeding is in effect as it was at common law, yet at the same time it is but a civil action, as we have often
This being the case, respondent will not be allowed to plead to the information by piecemeal, and having failed to plead all his defenses, if he had any others, he must now forego them. Holding the plea to the jurisdiction insufficient, we grant the motion to strike it out, and award judgment of ouster.
Dissenting Opinion
(dissenting).
We do not agree to the ruling that the charter of Kansas City in effect prohibits the board of police commissioners from appointing a chief of police for a term of six months, whether that appointment be “probationary,” or be called by any other name. Whatever be the term for which the board may properly appoint a police chief, we think it manifest that the appointee must be qualified by law to take and hold the office. Even if the appointment was correctly made on pi’obation, that would not exempt the appointee from an investigation into his eligibility by a writ of quo ivarranto.
It was held in State ex rel. Att’y-Gen. v. Bus (1896) 135 Mo. 325" court="Mo." date_filed="1896-06-30" href="https://app.midpage.ai/document/state-ex-rel-walker-v-bus-8012196?utm_source=webapp" opinion_id="8012196">135 Mo. 325 (36 S. W. Rep. 636) that an appointment as deputy sheriff, merely at the pleasure of the sheriff, was not so transitory in its nature as to remove the deputy from liability to answer a quo warranto. To
The Constitution of Missouri demands that no person shall be elected or appointed to any office in this State, civil or military, who shall not have resided in this State one year next preceding his election or appointment. Const. 1875, art. 8, sec. 12. The Attorney-General represents that defendant holds the office of chief of police of Kansas City in violation of that provision of the organic law.
It is not the duration of defendant’s office but the nature of the functions appertaining to the office that determines whether its incumbent is subject to respond to the call of the State by its writ of quo warranto.
By the charter of Kansas City the police chief is repeatedly named as a city officer. He is given large personal powers of arrest as a conservator of the peace; he is the head of the active police force of the city; he is paid from the public funds. Art. 4, sec. 20; Art. 11, secs. 20, and 24; Art. 17, sec. 13. His duties under the charter involve the exercise of important powers of government whieh the people have delegated to him by law for the preservation of peace and order. He is obviously a public officer. Brown v. Russell (1896) 166 Mass. 14" court="Mass." date_filed="1896-04-25" href="https://app.midpage.ai/document/brown-v-russell-6425600?utm_source=webapp" opinion_id="6425600">166 Mass. 14 (43 N. E. Rep. 1005). And he must possess the qualifications as to residence which the Constitution demands of the incumbent of “any office in this State.’’ State ex rel. v. Valle (1867) 41 Mo. 29" court="Mo." date_filed="1867-03-15" href="https://app.midpage.ai/document/state-ex-rel-wingate-v-vallé-8002245?utm_source=webapp" opinion_id="8002245">41 Mo. 29.
There' can be no doubt that the law of to-day is that no person can hold a public office who does not meet all the requirments of the organic and statutory law governing the office, and that a person who enters into such office, being ineligible thereto, may be ousted
2. The second ground of defendant’s plea to the jurisdiction consists of the claim that the question of his eligibility is one within the exclusive power of the board of police commissioners to decide. That contention is founded on the declaration touching “exclusive jurisdiction” of the board, contained in section 22 of article 11 of the charter. A careful reading of that section satisfies us that the grant of exclusive jurisdiction refers only to the trial of complaints against policemen, after the appointment for a term of years. The language of the charter on that point does not purport to confer exclusive jurisdiction on the board to determine the eligibilty of any officer or patrolman of the police force. If it did purport to do so, we should then have to inquire how far such an enactment could be supported in view of the large grant of jurisdiction in quo warranto to the Supreme Court by the organic law. But what has been already said renders unnecessary any further discussion on this branch of the case.
3. We conclude that defendant’s plea to the jurisdiction is not well taken, and that the motion of the Attorney-General to strike it out as insufficient should be sustained.
4. In the brief of counsel for defendant, he asks to be allowed to answer on the merits, in event his plea to the jurisdiction should be adjudged insufficient. Assuming that the code of practice is applicable to proceedings such as this, it appears to us that the court, in the exercise of its discretion, should give defendant leave to answer over, provided he pleads to the merits instanter, so as to cause no substantial delay in getting to a judgment in the cause. Judge Robikson joins in-this opinion.