80 Mo. App. 206 | Mo. Ct. App. | 1899
The ground on which relator’s application for the writ is based is that the police commissioners discharged him without right, or authority in law, in that the discharge was made without notice to him and without giving him a hearing. The case concedes that defendant was discharged without com
The portion of the charter .specially referred to, is section 22 of article 11, reading as follows: “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 sendees 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, they 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.”
The portion of the act of the legislature specially referred to by the commissioners is section ,6, page 329,Laws 1874, reading as follows: “To enable said board to perform the duties imposed upgn them, they are hereby authorized and required, as speedily as may be, to appoint, enroll and employ a permanent police force for the city of Kansas, which they shall equip and arm as they may judge necessary. The number of policemen to be so appointed and employed, exclusive of officers, shall at the first organization, be not exceeding the number now employed by the corporate authorities of the city
But conceding that the law of 1874 is the controlling factor, then, we are of the opinion that for the purpose of reducing the number of the police force, the commissioners may, in their discretion, discharge the number decided upon without the formality of notice or a hearing. Such is the reading of the law.
There are a number of illustrations of these general statements. Thus, there was a conflict between the general law and the charter of St. Louis as to the method of extending taxes and it was held the charter must give way. State ex rel. v. Railway, 117 Mo. 1. In the same city there were specific provisions as to the licensing of dramshops and the collection of the revenue therefrom. In 1893 the legislature provided for the appointment by the governor of an excise commissioner who under the provisions of the act, took charge of that general subject including the city license and revenue. The act has been upheld and the city ordinances, passed under the charter, superseded. State ex rel. v. Bell, 119 Mo. 70. The same recognition of the rule that special charters like those of Kansas City and St. Louis are subject to the general law of the state is found in numerous other cases. State ex rel. v. Tolle, 71 Mo. 645; State ex rel. v. Miller, 100 Mo. 439; State ex rel. v. Higgins, 125 Mo. 364.
“At the time of the adoption of the scheme and charter, there was, and is now, a law of the state in force providing for a board of police commissioners in the city of St. Louis, consisting of five persons, of whom the mayor of the city is one, and the other four'appointees of the governor, and confirmed by the senate. These commissioners have control of the entire police force of the city, and are invested with large powers affecting the local government of the city. Suppose that the charter of the city when framed and adopted, in conformity with the scheme authorizing it, had contained a provision for a board of police commissioners, consisting of five persons, one of whom should be the mayor and the other four his appointees, and investing them with the same power of control over the police force of the city which the law of the state invested in those appointed by the governor, which*218 would have prevailed, the law of the state or the charter provision.? If the charter provision in that respect is to prevail the law of the state would then be subject to the charter in the face of the constitution, which declares that the charter shall be subject to the law of the state. Ewing v. Hoblitzelle, 85 Mo. 64.
Prom the foregoing ruling of the supreme court it is quite clear that the charter of Kansas Oity could not annul the state law in reference to police commissioners for such city and their powers and duties. We therefore hold that section 6 of the Act of 1874, page 329, measures the power and authority of the police commissioners in reference to the discharge of members of'the police force. By that section, where there is no intention of reducing the force, but an object to dismiss one or more members for some reason pertaining to the member proposed to be discharged, it can only be done for cause shown after a hearing granted to the offending member. In this respect there is no conflict between the law and the charter.
But where, in the discretion and judgment of the board the force is more numerous than it should be, it has the additional power under the law to reduce the number by discharge from the service without notice or hearing. That the charter can not change the state law in this respect is apparent, unless we set up the charter as superior to the state law. To grant such potency to the charter we would be brought to the position, as stated by the supreme court, that the power of appointment could be taken from the governor and invested in some city functionary. And furthermore that a wholly different system of police could be introduced by the city, or indeed none at all; and thus the policy of the state be subverted.
That the charter has, in some respects, gone beyond its legitimate bounds is seen from its general scope and from more than one special provision. Eor instance, section 3 directs the governor to appoint and the senate to confirm the commissioners, and in the same way provides for the filling of
We are cited to some authorities in New York which sustain-the position that the peremptory need not follow the alternative writ in its command. People ex rel. v. Supervisors, 142 N. Y. 271. But in that state by statutory enactment, “the court, in awarding tbe peremptory writ, may mould it according to the just rights of all the parties.” We have no like statute here and the rule with us is altogether different. There it seems a trial may be had to adjust the rights of the parties much as in an ordinary action at law. While here we hold more to the rule relating to mandamus as commonly understood.
The suggestion was made at the argument that respondent by his answer and testimony was the cause of the amount of the claim being reduced to the extent appearing in the record. We do not see how that could affect the legal phase of the point. The fact remains, as disclosed by the record, that relator was not entitled to the relief demanded by the alternative writ.
There is nothing in the cases of Sanford v. Kansas City, 69 Mo. 466, and Riley v. Kansas City, 31 Mo. App. 439, which in the least militates against this position. Whatever reasonable inference is to be drawn from them favors it. In the Sanford case the salary was earned and unpaid. In the
The claim made by relator that in the absence of a bill of exceptions we could not reverse for error on the record proper is not well founded. The authorities cited are not considered in point.
The result of our consideration of the case is to reverse the judgment.
ON MOTION TO TRANSFER TO SUPREME COURT.
Since the decision in this cause relator has asked us to transfer it to the supreme court on the ground that we have no jurisdiction under the .constitution vesting jurisdiction in the supreme court “in cases involving * * * the title to any office under this state,” relator now stating that the case involves the title to the office of policemen.
In this case there has been no pretense of a controversy over the title to the office but merely for reinstatement to an office from which it was charged that relator had been unlawfully removed, and for the salary accrued, the latter being’ the principal object. While it would ordinarily be necessary for relator to exhibit a prima f-acie title in order to show his right to reinstatement, yet there is no adjudication which involves the title, or which would be res adjudícala,. The proceeding is merely possessory. In this case the alternative writ sets out relator’s title and the return of respondent admits it. The only controversy between the parties is the poiuer of removal.