153 Mo. 194 | Mo. | 1899
The appellants are the Board of Police Commissioners of the city of St. Louis. This appeal is taken from a judgment of the circuit court of said city, granting a peremptory writ of mandamus commanding the said Board of Police Commissioners to rescind its order of October 22, 1895, dropping relator from the rolls of the police force of said city, to reinstate Mm as a policeman for the unexpired term of four years beginning July 1, 1893, and to issue to relator a warrant upon the city treasurer for $1,352.79, compensation found to be due him from October 22, 1895, to the day of judgment.
The case was submitted and decided in the circuit court on the following agreed statement of facts:
“It is hereby stipulated and agreed by and between the relator and respondents herein as follows: That the records of the Board of Police Commission era show the following proceedings with respect to the employment and service of the relator as a member of the police force of the city of St. Louis, to wit: That on the eleventh day of September, 1888, the relator, John N. Chapman, who was nominated on the force as an emergency special by Mr. Vice-President Blair, September J, 1889, having passed a satisfactory physical examination and complied with rule 96 of the Manual, was called before the board and interrogated. Said Chapman was informed that his appointment was temporary, and subject to terminate at any time at the will of the board, and that his salary as an emergency special would be fixed at the rate of sixty dollars per month. Said Chapman agreed to accept the appointment •upon these conditions. He was on motion appointed an emergency special, sworn in and ordered to be assigned to -duty.
*198 “That thereafter, on the 19th day of March, 1889, Apon the recommendation of Captain Samuel J. Boyd, emergency special John N. Chapman, 3d district, was promoted to the rank of patrolman to take effect April 1, 1889/ That thereafter, on January 5, 1892, An motion and at his own request, patrolman John N. Chapman, 6th district, was reduced to the rank of turnkey, to take effect January 5th, 1892.’ That thereafter, on June 15, 1893, An motion of Mr. Small, turnkey John N. Chapman, 6th district, was promoted to the rank of patrolman, to take effect July 1, 1893,’ where he continued to serve until October 22, 1895. That on October 22, 1895, It was moved that the minutes of the last meeting be corrected as follows: That George H. Chappell, of the 6th districtj be reinstated as patrolman, and that John N. Chapman, whose term of service has expired, be not reappointed and that he be dropped from the rolls to correct a clerical error.’
“It is further agreed that since the 1st day of July, 1893, the regular pay of patrolman has been $83.33 1-3 per month, and -that this is the compensation relator was receiving on and prior to October 22, 1895, which was paid him by the treasurer of the city of St. Louis on warrant, duly signed by the president and secretary of the Board of Police Commissioners, which offices are now held respectively by Cyrus P. ’Walbridge president, and Wm. O. Heebie secretary.”
The law governing the case is found in article 29 of the city charter, 2 Revised Statutes, 1889, pp. 2192, ei seq. By section 6 of the Act, authorizing the board of Police commissioners “to appoint, enroll and employ a permanent police for the city of St. Louis,” after providing the number of “policemen . . . exclusive of officer's” that shall be employed at the first organization, and that no person shall be appointed or employed as “policeman or officer of police” who shall have been convicted of an infamous crime, etc., it is further provided that “the policemen shall be employed to serve four years, and be subject to removal only for cause, after a hearing
Section 8 provides “each captain shall receive one hundred dollars'per month; each lieutenant, eighty-five dollars per month; .... each ordinary policeman and detective seventy-five dollars per month, and each turnkey fifty dollars per month, payable monthly.” Section 11 provides that vacancies in any grade of officers except that of chief, shall be filled from the next lowest grade, if competent men can be found therein, authorizes the board to make all necessary rules and regulations not inconsistent with this act for the ■appointment, employment, uniforming, discipline, trial and government of the police force, and the relief and compensation of members of the police force injured in the discharge of their duty, and “the families of the officers or men killed while in discharge of duty” not to exceed twelve months’ pay, and that the board shall have power to require “of any officer or policeman bond with sureties,” etc.
Section 12 provides that, “no officer of police or policeman shall be allowed to receive any money, or gratuity, or compensation for any service he may render, without the consent of said board; and all such moneys as any policeman or police officer may be so permitted to receive shall be paid over to the board,” etc.
(2.) It is next contended that the court erred in ordering a warrant to be drawn on the city treasurer in favor of the relator for the sum of $1,352.79, the amount of his monthly salary from the twenty-second of October, 1895, to March 1, 1897, the date of the judgment, for the reason that he rendered no actual service therefor and it does not appear that he offered to do so. In support of this contention Westberg v. City of Kansas, 64 Mo. 493, and Howard v. St. Louis, 88 Mo. 565, are cited. The question decided in the first case was that an officer, in that case a patrolman, legally suspended from office, could not recover anything on account of salary after his suspension, and the second case is to the same effect. In that case it was held that under section 9 of the Scheme and Charter of St. Louis, the mayor had the power to suspend or remove the plaintiff, who was the resident physician of the insane asylum. That he was legally suspended by an agreement entered into between the mayor and the county court, and that he could not recover his salary after the date of the agreement- The court saying, “His case is not materially different from that of Westberg v. City of Kansas, 64 Mo. 493. Westberg was legally suspended and claimed his salary for the time he was suspended, but this court held he was not entitled to it.” If the plaintiff in the ease in hand had been legally discharged or suspended on the twenty-second of October, 1895, these cases would have been in point, but as he was on that day illegally discharged, as we have seen, they manifestly afford no support to this contention. Nor do we find any support for it in the cases of Mullery v. McCann, 95 Mo. 579, or State ex rel. v. Clark, 52 Mo. 508, also cited by counsel for appellant; in the first of which it is simply held
Finding no error, the judgment of the circuit court ought to be affirmed. But as the respondent’s term of office has expired since this appeal was taken, and he can not be reinstated as ordered by the circuit court, and the personnel of the Board of Police Commissioners has also been changed since the appeal was taken and a simple affirmance will not afford the relator the adequate remedy to which he is entitled, in lieu of such affirmance the judgment of the circuit court will be reversed and judgment will be entered here, under section 2304, Revised Statutes 1889, awarding a peremptory writ of mandamus directed to said board as now constituted, commanding them to issue to relator a warrant upon the city treasurer for the sum of $1,688.89, being the amount of his salary from October 22, 1895, to July 1, 1897, and that relator recover his costs herein.