62 Mo. App. 162 | Mo. Ct. App. | 1895
The relator was appointed health commissioner of the city of St. Louis for a term ending in April, 1895. On the fifth day of May, 1893, he was cited for trial before the mayor of the city upon charges of incompetency, neglect of duty, maladministration, with specifications of each, of which due notice was given to him. The trial began on the eighth day of May, and ended on the nineteenth day of May in an order of removal of relator from the office of health commissioner, which was signed by the mayor and
At common law the writ of certiorari brought up for review only the record, and not the evidence. State v. Common Council, 55 N. W. Rep. 118; Washington Steamship Co. v. Haas, 151 Pa. St. loc. cit. 116. The courts adhering to this view will not look into the evidence at all, but merely inspect the record to see whether the inferior tribunal had jurisdiction and proceeded according to law. “Other courts hold that the evidence may be brought up, not for the purpose of weighing it to ascertain the preponderance, but merely to ascertain whether there is any evidence at all to sustain the decision of the inferior tribunal.” State v. Common Council, supra. This state has ranged itself with those which- restrict the writ of certiorari, when employed to exert superintendence, to the functions accorded to it at common law. State ex rel. v. Smith, 101 Mo. 174; Hannibal & St, Joseph Railroad Co. v. State Board of Equalisation, 64 Mo. 308. In the latter case it was said: “We have no statute in this state 'regulating the practice of proceedings by certiorari, and are to look to the common law for a guide in such cases. ‘It is a writ in the nature of a writ of error addressed to an inferior court or tribunal whose procedure is not according to the course of the common law, 117 Mass. 564.’ A common law writ of certiorari only brings up the record and can only reach defects
In line with these authorities this court has held that the writ only serves to bring up for review the-proceedings of record in the inferior tribunal, State ex rel. v. Mayor and Board of Aldermen of Neosho, 57 Mo. App. 192. While the return of the defendant in this case certified all the proceedings, including the oral evidence taken on the trial, the latter was no part of the record before him and could not be reached by a writ of certiorari. The law does not require the preservation of the evidence heard by the mayor in the exercise of his power of removal for cause, nor prescribe-any method whereby such evidence can be made apart of the record, as by bill of exceptions. The common law use of the writ of certiorari, which is its limit in this-state, is directed at such proceedings as the inferior judicatories are required to show as the grounds of their jurisdiction — in other words, the writ as thus used is aimed -at a record which may be quashed. If the' inferior tribunals are not entitled to keep any record, the writ of certiorari does not lie.
The city charter empowers the mayor to remove-an appointive officer, such as defendant, for cause, which in legal intendment means upon sufficient charges, notice thereof and a hearing. State ex rel. v. Brown, 57 Mo. App. 199; State ex rel. v. City of St. Louis, 90 Mo. 19; Charter of St. Louis, art. 4, sec. 5. The record of the proceedings of the mayor in exercising the power of amotion vested in him by the charter-should show, in case of an appointive officer, that, charges sufficient- in law were preferred against him
The foregoing charge, as thus specified, embraced all the particularity required by law. Due notice thereof was given to relator, as appears from defendant’s return and from the admissions in relator’s petition for the writ of certiorari. That a trial was had, and much evidence taken upon the foregoing charge, is shown also by the return to the writ, as well as by the admissions in relator’s petition, wherein the truth of this charge is substantially admitted and a plea of avoidance made that the requirements of the ordinance, whose breach was thus complained of, had been disregarded, for a number of years, by preceding health commissioners and mayors, and that the duties thus imposed by ordinance had been substantially performed by a physician employed to visit the sick at that place. The return in this case also shows the following judgment or order of removal:
“office of mayor.
“St. Louis, May 19, 1893.
*lWm. N. Brennan, M. I)., Health Commissioner, City.
“Sir: — Pursuant to the power vested in me as mayor of the city of St. Louis, under charter and ordinances thereof, I do hereby remove you from the office of health commissioner of said city for the causes*166 specified in the charges and specifications heretofore served upon you, and on which you have had a hearing. C. P. Walbridge,
“Mayor of the City of St. Louis.”
The affirmative showing of the foregoing facts in the return of defendant disclosed a valid exercise of jurisdiction on his part under the provisions of the charter, suipra, governing his right to remove appointive officers, and constituted all of the record of his proceedings which the law contemplated should be kept, and was all which he could have been compelled to certify under the writ in this case. The fact that he also included in his certification a mass of testimony taken on the trial, did not make the latter any part of the record before him. Its inclusion in his certificate was, therefore, ex gratia.
As our supervision of the proceedings in this case under the authorities, -supra, can not extend beyond the legal record brought up by the return, and as that shows that the judgment of removal of relator was made, after notice, upon charges legally sufficient, and upon a hearing of the evidence, we have no power to set aside the same in this proceeding, and the judgment of the circuit court in so doing was error, for which it will be reversed.