106 Mo. 488 | Mo. | 1891
There is substantially no dispute about the facts. They are disclosed in the pleadings and the charters and ordinances pleaded, and in the evidence. Such as are not set forth in the pleadings are sufficiently stated in the opinion. The relators constitute the board of public works, and their appointee under the charter of Kansas City, adopted at a special election, April S, 1889, and in force, from and after May 9, 1889. The charter in force, prior to the adoption of the new charter, was the amended charter of 1875.
“ Sec. 973. There shall be appointed by the mayor, by and with the consent of the common council, some suitable person who shall act as street commissioner; who shall hold Ids office for the term of one year, and until his successor is duly appointed and qualified.
“Sec. 974. It shall be the duty of such officer to superintend all repairs of streets and alleys ; to attend ta all cleaning of such streets, alleys and crossings, and all repairs of such, that may be ordered by the council or directed by the city engineer to be done ; to have charge-of the appointment and control of all foremen, teams, laborers and mechanics employed in such work ; to keep and return the time of all persons engaged in such work, and make out and certify the same monthly to the auditing committee, in form of pay rolls ; to hold and have charge of all tools and implements used in such work ; and to do such other acts as may, from time te time, be required by ordinance or law.
“ Sec. 975. Before entering upon the duties of his office, said street cotnmissioner shall give bond to the City of Kansas in the sum of $10,000, to be approved by the city comptroller, for the faithful performance of his duties as such street commissioner.
*499 “Sec. 976. Said street commissioner shall receive ■for his services such compensation as may be fixed by the common council of the city.”
It is conceded that, unless this ordinance providing for the appointment of a street commissioner has been repealed by the adoption of the charter of 1889, that the respondent May is, by virtue of the appointment of the mayor and the confirmation of the common council, the superintendent of streets of Kansas City, and the proceeding must fail.
Section 1, article 17, entitled “Miscellaneous provisions” of the charter of 1889, provides “All ordinances, regulations and resolutions in force at the time this charter takes effect, and not inconsistent with the provisions thereof, shall remain and be in force until altered, modified or repealed by the common council.”
. It is not claimed that there has been an express repeal of sections 973, 974, 975 and 976 of the revised ordinances of 1888, but the relators maintain these sections are repugnent to and inconsistent with the new ■charter and hence repealed by necessary implication.
As the foundation of this contention the relators bring into juxtaposition the following provisions of the two charters of 1875 and 1889, for the purpose evidently of demonstrating that the powers grantéd the common ■council by the charter of 1875 are, by the freeholder’s charter of 1889, vested in the board of public works, to-wit:
*500 “ Charter of 1889, article 4, page 64.
“Sec. 7. The board of public works shall prepare, as soon as may be, a general plan of laying out into streets and alleys all such’ portions of that territory now or hereinafter included within the corporate limits of the city as shall not already be laid out at the time of taking effect of this charter, etc.
“Sec. 10. Said board shall supervise the grading and paving of all streets, avenues, alleys and public grounds; the cleaning, sprinkling, repairing and improving of all streets, avenues, alleys, public places; the construction, altering and repairing of all bridges, culverts^ receiving basins, sewers, drains and water courses within the city; the laying of gas and water pipes through any street or alley, and the issuing of permits for connecting with any gas, water or sewer pipe ; the laying down and repairing of all sidewalks, crosswalks, curbing and guttering; the construction
“Charter of 1875, article 3,” of legislative powers of the common council, page 12, chapter and ordinances of 1888.
‘ ‘Seventh. To have exclusive control and power over the streets, sidewalks, alleys, landings, public grounds and highways of the city; to open, alter, widen, extend, establish, grade, pave, or otherwise improve, clean and keep in repair the same; to prevent and remove all encroachments thereon, or obstructions thereofto put drains and sewers in the same and to regulate the building of vaults-under sidewalks.
“ Eighth. To establish, erect and keep in repair bridges, culverts and sewers and to regulate the use of the same; to establish, alter and change the channel of water courses, and to wall them up and cover them over.
“ Eleventh. To provide for inclosing, improving and regulating all public grounds belonging to the city.”*501 of vaults under any portion of said streets; the construction, repair, alteration and removal of all buildings, etc., and the issuing of permits thereof.”
“Charter of 1889, article 4, page 63, ‘ Board of Public Works.’ ”
“Sec. 4. Said board shall employ at least one engineer who shall be known as the city engineer, and it shall appoint such additional engineers, . inspectors, clerks, assistants and other persons as may be necessary, but the number of such additional appointees and the compensation of all employes and appointees of said board shall be as provided by ordinance.” Charter, 1889, page 63.
“Charter of 1875, article 4.
“Sec. 11. There shall be a city clerk, city engineer, city counselor and city comptroller, who shall be appointed by the mayor by and with the advice and consent of the common council.
“Sec. 12. There shall also be such other officers, servants and agents of the corporation as may be provided by ordinances, who shall perform such duties as may be prescribed by ordinance.” Charter, 1875, page 20.
I. The powers of the common council concerning other officers, agents and servants of the corporation under the new charter of 1889, not specially provided for by the charter, will be found in the seventeenth section of article 3, as follows: “To provide for and regulate the election or appointment of city officers required by this charter or authorized by ordinance, prescribe their duties, and to provide for their suspension or removal in all cases not provided for by this charter, and to establish the salaries of all officers and the compensation of all employes,” etc. Charter, 1889, p. 17.
An examination of the two charters and the ordinances of 1888 discloses that the engineer’s depart-, ment under the charter of 1875 was perhaps the most extensive of the city government. Under them the engineer was : First. To superintend the construction of all public works. Second. To make plans and specifications and estimates thereof, Third. To do the surveying and engineering of the city. Fourth. To examine the condition of all streets, avenues, alleys, sidewalks and other public places; and to have supervisory control of the repair and improvement of the same. . Fifth. To cause to be carried into effect all ordinances of the city concerning streets and public places; to superintend and control the opening, and improving thereof, and to prevent and remove all
Under the old system the city engineer was authorized to employ additional engineers. Rev. Ord. 1888, sec. 363.
There were also recognized by ordinances in the engineer’s department under the old system inspectors, clerks, assistants, as superintendent of construction and other persons such as transit men, draughtsmen and rod men. Rev. Ord. 1888, secs. 366, 367, 368, 369.
So that at the time of the adoption of the new charter there was a department of the city government exercising practically all the functions conferred upon the board of public works by the new charter. It seems too clear for argument that it was the intention and purpose of the charter framers to transfer these duties, that-had so multiplied as to become incongruous in the engineer’s department, to the board of public works, and impose upon it the same responsibility as had previously been imposed upon the city engineer. The charter makers carefully reserved to the city engineer’s department those duties which were appropriate thereto. Now, prior to the change, the city engineer’s department had virtually the same powers as
It was clear that the city engineer had no power of appointment or removal of the street commissioner. Now, when the duties °were by charter and ordinance imposed upon a board to succeed, him, with the same general powers, is it to be presumed that the charter framers intended, to enlarge the powers of that department beyond its well-defined scope? We think not. On the contrary, we think from an examination of the kindred sections, that, as the framers of the charter came to consider this department of the city, it became evident that the engineer’s office was burdened with duties which did not logically or naturally appertain to it. Hence, the necessity for creating a board to whom could be confined these incongruous duties, reserving, however, all that properly belonged to the engineer to that office. The street department was well defined at that time. It would, in our opinion, violate all natural presumption to presume that the charter makers intended to abolish an office or a department so vital to the welfare of the city by mere implication. The fact that they imposed upon this new department the same duties already exercised by the city engineer, namely, that of, supervision, is a Satisfactory indication that they intended not to abolish the street commissioner’s office but to subject it to the same supervision by this new board.
Recurring again to the provision of section 4, article 6, of the charter of 1889, it is to be kept in mind, that the only power of appointment there given is to employ one engineer and appoint such additional engineers, inspectors, clerics, assistants and other persons as may he necessary, etc. Now does this section authorize the appointment of a salaried officer with duties entirely distinct from the ordinary force of inspectors, clerks and assistants, or is this power, by every fair intendment and rule of construction, limited to the persons
II. But it is argued on the part of the relators that the incumbent of this position, “superintendent of streets,” is not an officer, but a mere employe of the board of public works. It seems to us that by all the principal tests he is an officer. If, as we hold, the ordinance of 1888 is not repealed, we think it was clearly within the powers of the common council under both charters to pass that ordinance defining the character and duties of this position.- This being so, they have by the ordinance itself denominated the position an office. Section 973, Revised Ordinances, 1888, reads, “ who shall hold his office for the term of one year, and until his successor is duly appointed and qualified.” Charter, 1875, art. 4, sec. 14. Again in section 974, it is provided, “it shall be the duty of such officer” to superintend, etc.
Not only is he denominated an officer, but public duties, such as usually appertain to public officers as such, are by statute devolved upon him as the incumbent of the position. These duties belong to the position irrespective of who may fill the position. In this
Chief Justice Marshall in United States v. Maurice, 2 Brock. 103, used this language: “But if a duty be a continuing one, which is defined by rules prescribed by the .government, and not by contract, which an individual is appointed by government to perform, who enters' on the duties appertaining to his station without any contract defining them, if those duties continue, though the person be changed, it seems very difficult to distinguish sucffi a charge or employment from an office, or the who performs the duties, from an officer. \And again on page 349: “And we apprehend that .it may be stated as universally true, that where an employment or duty is a continuing one, one which is defined by rules prescribed by law and not by contract, such a charge or employment is an office.”
In 40 Mich. Rep. Judge Cooley says : “An office is a special trust or charge created by competent authority. If not merely honorary, certain duties will be connected with it, the performance of which will be the consideration for its being conferred upon a particular individual, who for the time will be the officer. The officer is distinguished from the employe in the greater importance, dignity and independence of his position ; in being required to take an official oath and, perhaps, to give an official bond ; in the liability to be called to account as a public offender for misfeasance or non-feasance in office, and usually, though not necessarily, in the tenure of his position.” Throop v. Langdon, 40 Mich. (673) 682. “ A public office is a public trust.” Judge Cooley, Principles Const. Law, 303.
When we consider the importance of the position, the salary attached to it, the certain tenure, the large
We may as well remark here now that construing the two charters and ordinances thereunder together it is clear tha't the superintendent of streets is one and the same officer known as the street commissioner prior to the adoption of the charter of 1889. The mere change of the name of the officer did not affect the office itself. Sullivan v. Mayor, 53 N. Y. 652. We hold that ordinance 268 did not repeal sections 973, 974, 975 and 976, but was intended to supplement those sections and adjust the office to the new charter.
This cause has been presented and argued with signal ability on both sides. It is due counsel for relators that we notice some of their positions not' already considered. /
They insist with much earnestness, that the omission of section 14,.of article 4, of the charter of 1875, defining the duties of the city engineer and authorizing the city council to appoint a street commissioner, evinces a clear legislative intent that the office of street commissioner should be abolished. This argument is plausible at first blush, but is not tenable upon closer investigation. “Exclusive control and power over the streets and alleys,” is vested in the city council by the charter of 1889. By section 15, article' — , of the new charter, power to create offices is expressly granted to the mayor and council. “There shall also be such other officers, servants and agents of the corporation as may be provided by ordinance, who shall perform such duties as may be prescribed by ordinance.” Under a grant as extensive as this, it seems to us there can be no question that ample authority was given the common council to
Nor is there that irreconcilable conflict between section 10, of article 6, and sub-section 5, of section 1, article 8, of the new charter, contended for by relators. The mayor and the council are given exclusive control and power to sprinkle, clean and keep in repair the streets, alleys and public grounds. The board of public works is given power to supervise the sprinkling and repairing of streets, alleys and public places. These sections, being “in pari materia,” should, if possible, be construed so as to give meaning and effect to both. We hold it not inconsistent for the mayor and common council to create the office of superintendent of streets or street commissioner, provide for his salary, prescribe the duty on his part of superintending and cleaning and repairing the streets, alleys, etc., under the supervision of the board of public works.
It seems clear that tkie, personnel of this board ; the requirement that they need only meet once a week at the office of the board (Charter, 1889, sec. 3, art. 6), is inconsistent with that 1 horough personal superintendence which the ordinance clearly expects of the street commissioner or superintendent of streets. By their wise supervision they might well prevent reckless expenditures in ill-advised directions ; lay out and formulate improvements and cause the same to be done under the immediate superintendence of the superintendent of streets. It is one thing to supervise his work, and another and quite a different thing to have the power to appoint or remove him; one, the board has, — the other, it has not.
The question of practice, whether a mandamus proceeding was the proper remedy in this case, has been discussed thoroughly and well. It may be conceded that moMdamus is not the proper remedy to determine, either directly or indirectly, the title to public office,
There are many minor propositions discussed, and have all been considered. But we are all agreed that, whether section 978 and following were repealed by ordinance number 268, it is clear that the position of superintendent of streets therein provided for is an office within the meaning of the law, and that the mayor and not the board of public works has the power of appointment thereto.
Our conclusion is that the peremptory writ be denied, and that respondent go hence without a day, and have and recover of relators, J. S. Cannon, H. C. Murphy, Charles A. Rollert, J. P. Stoller and W. L. Sheppard, the costs of this proceeding, and that he have execution therefor.