210 Mo. 601 | Mo. | 1908
This cause is before this court upon appeal by the relator from the action of the circuit, court of the city of St. Louis in overruling his motion to quash certain proceedings instituted before the respondent as ma3mr of the city of St. Louis, to remove the relator, and a judgment in favor of respondent rendered on February 6, 1905.
This is a proceeding on a writ of certiorari issued by the circuit court of the city of St. Louis at the relation of George H. Heimburger, for a review of a pro-
Specification No. 1 was “respecting the poorhouse •contract, ’ ’ that is, it was charged concerning that subject that the relator (a) in approving and presenting to the board of public improvements plans which were palpably faulty in that the steel work required was far in excess of the proper amount, to-wit, about 63,000 pounds, thereby subjecting the city, to unnecessary expenses of from $1,500 to $2,000 for excessive steel, and about $600 additional for fire-proofing and plastering resulting therefrom; and all this after his attention was directly called thereto before completion of the plans and in ample time to have remedied the same, (b) In recommending a change, and inducing the contractors to expect a change, in the contract after the formal letting so as to substitute plans requiring 63,000 pounds of steel less than the contract called for, upon ■allowance to the city of an insufficient rebate; when said commissioner knew that any such change of a formally executed contract with or without rebate was 'unlawful and unauthorized, (c) Such proceedings resulted in unnecessarily delaying the completion of the steel work on said building.
Specification No! 2, “respecting workhouse contract,” The charge concerning this subject against relator was, (a) in directing a material alteration, for which there was no authority, of the contract after the letting thereof and commencement of work, said charge consisting in the substitution of concrete columns and Teams in place of iron, as called for by the contract; said concrete work being both inferior in quality and less in price by from $500 to $600 than the iron work
Specification No. 3, “respecting city hospital contract.” The charge against relator concerning this subject, was (a) in directing an unauthorized alteration in the contract in that part providing for brass work and ordering the substitution, without authority, of enameled cast iron, a material of less value, to-wit, about $800, and not adapted for the purposes intended, (b) In unnecessarily delaying and permitting the delay of the work on said building specified as marble work, where the metal above referred to in specification (a) was to be used, so that the same could not be completed in the time required.
Specification No. 4, “respecting the repairs in court-house.” The charge against relator concerning this subject, was (a) in wilfully permitting a departure from contract in that part relating to “mill work” by allowing in place of veneered work called for solid wood-work of much less value, to-wit, $300, and further, after having unlawfully permitted said change, in neglecting to take steps to exact a rebate and in declining to recommend the acceptance of a rebate on
Specification No. 5, “respecting retention of unfit employee.” The charge against relator concerning this subject, was (a) in wilfully keeping in the employ of the commissioner of public buildings one Harry Hoel, after said commissioner knew that said Hoel was guilty of officially reprehensible and dishonest acts, and that his further retention was injurious to the city’s interest, to-wit: Said Hoel, on or about the 21st day of August! 1903, did present to John T. Henry (owner) or A. M. Baker (contractor) who was constructing a building for which the law required a permit, a notice under the seal of the building commissioner’s office, for the purpose of being shown to the police department, to the effect that no- permit was required to erect the building there being erected, when said act of Hoel was entirely outside the scope of his employment at that time, and was known by him to be unwarranted and was unlawful; said Hoel without warrant or authority having affixed the official seal of the building commissioner’s office to said notice.
Specification No. 6, “respecting failure to enforce insane asylum contract relating to painting and cleaning.” The charge against the relator concerning this subject,- was (a) in failing to enforce the provisions of contract requiring “all copper work of dome, gutters, down-spouts, etc., to be cleaned with acid and oiled with linseed oil, ’ ’ and in allowing the same to be painted instead of cleaned and oiled, as required by said contract, and in excusing, without authority, the contractor from cleaning the dome upon payment of an insufficient and inadequate rebate or allowance to the city, to-wit, the sum of $10, although the difference to be allowed (if any exemption were permissible) should have been much larger.
A copy of these charges and specifications was
The record in this cause discloses that the errors complained of upon "which the appellant predicates his grounds for the reversal of this judgment, are as follows :
First. That the mayor has no judicial power and the clauses in the St. Louis charter that attempt to confer such power upon him are in violation of the State Constitution. In other words, it is insisted by learned counsel for appellant that the mayor, in the trial of the relator upon the charges preferred indicated in the statement of this cause, and his final order based upon such hearing, was exercising judicial power, which under the Constitution of this State he had no right to exercise, and in its last analysis the contention is that the mayor is without authority to hear and.dispose of the charges in the manner that, he did in this proceeding.
Second. It is contended that the mayor acted in this proceeding as prosecutor and judge on the trial of the relator in violation of the law of the land, and his judgment was and is a nullity.
Third. That 'the provisions of the charter of St. Louis under which the mayor removed relator from office are not in harmony with the Constitution and laws of the State, and furthermore such provisions of the charter were repealed by the Act of April 23, 1877.
I.
Directing our attention to the first proposition, relator calls our attention to the provisions of article 3 of the Constitution of this State distributing the power of government into three departments, that is, legislative, executive and judicial, and section one of article six of the Constitution vesting judicial power
The function exercised by the respondent mayor in the case at bar cannot be more clearly stated than it is by learned counsel for respondent in their brief, where it is stated that “it is very evident that when the mayor was presiding at the trial of relator he was not a judge presiding over any tribunal connected with the judicial department of the State. He was simply acting as mayor, the chief executive officer of the city, in a matter in which, under the charter and ordinances of the city, he was required to act, not as a judge, but as an executive officer. So that the Constitution and the laws of the State relating to the judicial department have no application. The functions he was exercising were merely quasi-judicial, and such is the law of this Státe.”
This proposition was substantially involved in State ex rel. v. Walbridge, 119 Mo. 383. In that case, the relator, who occupied the same position that the relator occupies in the case at bar, that of commissioner
Counsel for appellant in support of the insistence upon this proposition direct our attention to the cases of Albright v. Fisher, 164 Mo. 56; State ex rel. v. Stone, 120 Mo. 428; Magner v. St. Louis, 179 Mo. l. c. 502, and State ex rel. v. Walbridge, 69 Mo. App. l. c. 657-669. It is sufficient to say of those cases that we have carefully analyzed them and in our opinion they in no way conflict with the conclusions reached upon this proposition as heretofore indicated. While it is true that many of the cases in discussing the question as to the removal of an officer for cause, state that the cause justifying a removal is a judicial question to be determined from the facts, but by no means does it follow from this that the mayor in the exercise of the power conferred by the charter and ordinances of the city to hear complaints against persons occupying positions in other departments of the city government, and if the facts are sufficient, to order the removal of such officer, is violating the provisions of the Constitution to which our attention has been directed, simply because in the exercise of such powers he may be required to perform functions which are judicial in their nature, or quasi-judicial. The case of State ex rel. v. Walbridge, 69 Mo. App. 657, upon which relator chiefly relies in support of the point now under discussion, was one in which upon charges heard before May- ,or Walbridge against the superintendent of the house of refuge, the official after such hearing was ordered removed, and by a similar proceeding to the one in the case at bar, the cause reached the St. Louis Court of Appeals. That court, after fully reviewing the case, overruled the motion to quash the judgment of the mayor and entered judgment in his favor.
In Fuller v. Attorney-General, 98 Mich. 96, it was insisted not only that a member of the board of con
In the Walbridge case, 119 Mo. 383, this court directed attention to section 7 of article 14 of the Constitution, which provides that the General Assembly shall, in addition to other penalties, provide for the removal of the city and county officers, etc. It was then pointed out in that case that the charter provisions and ordinances in pursuance of it providing for a summary method of removing officers derelict in their duties, were simply in pursuance of the commands of that provision of the Constitution, and should be upheld upon that ground.
We deem it unnecessary to pursue this subject further. The right and power of the mayor to remove officers upon charges, after due notice of such charges and a hearing, has been fully recognized in State ex rel. v. Walbridge, 62 Mo. App. 162; State ex rel. v. Walbridge, 69 Mo. App. 657, and State ex rel. v. Walbridge, 119 Mo. 383.
It is earnestly insisted by learned counsel for appellant that the mayor in this case acted as prosecutor and judge on the trial of the relator in plain violation of the law of the land, and that his judgment was and is a nullity.
The charter provisions of the city of St. Louis, article 4, section 5; article 4, section 15; article 4, section 16, and article 4, section 47, and the ordinances adopted in pursuance of such charter provisions, manifestly, if they are to be held valid, confer the right and power upon the mayor to remove officers occupying positions in other departments of the city government. The substance of these. charter provisions is to the effect that the mayor is the chief executive officer of the city, and it is expressly made his duty' to see that the laws of the city and the ordinances of the city are respected and enforced. In our opinion, as is contended by counsel for respondent, this would certainly include all laws and ordinances relative to the proper performance of the duties of the commissioner of public buildings, who is one of the appointees of the mayor.
It is earnestly insisted that the mayor was disqualified from hearing complaints against the relator which had been preferred by the secretary to the mayor. With all due respect to the learned and esteemed counsel for appellant we are unable to give our assent to this insistence. As already stated, the charter provisions imposed the duty upon the mayor to see that the laws of the city and ordinances of the city are respected -and enforced. In other words, it is made his duty to see that the officers appointed by him are not derelict in the discharge of their duties, and the mere fact that his secretary prefers the charges against one of the officers in one of the departments, or even if the mayor should make out the charges himself, it
Mr. Works in his treatise on Jurisdiction, page 396, in discussing the proposition as to disqualification, thus states the rule, that in order to disqualify a judge, “some direct personal interest, that is, personal to the judge, and not such a general or public interest as affects all persons in the district or community contingently only and equally with him. ’ ’ The same author on page 396, says: “The bias or prejudice of the judge, or a desire on his part that one or the other parties shall succeed, is not sufficient to disqualify him.” “Mere interest in the question involved, there being no interest in the subject-matter of the action, does not disqualify him.” [P. 398 et seg.] “The rule of disqualification does not apply to officers not judicial, although their acts may call for the exercise of judgment and discretion.” [Pp. 409-410.]
In State ex rel. Norton v. Lupton, 64 Mo. 415, the mayor of the city himself signed the charges against the officer involved; however, no- point was raised as to his disqualification, the case being determined upon the question as to the definiteness of the charges.
In State ex rel. v. Slover, 113 Mo. 202, Judge Slover preferred charges against his own court stenographer, and thereafter removed him, and his ac
In Mayor of Lexington v. Long, 31 Mo. 369, the mayor of the city of Lexington presided in a street opening proceeding in which he was personally interested, and the point was made that he was disqualified. It was ruled by this court in that ease that no disqualification attached, and in announcing the final conclusion it was said by the court that the limitations upon the principle that no one should be a judge in his own case were determined by the statute providing when the statute should apply and that the statutes had not provided for the case in hand.
In the very recent case of State ex rel. Parker-Washington Co. v. St. Louis, 207 Mo. 354, the question of the disqualification of a member of the Board of Health to sit in the hearing of the questions as to whether certain works constituted a nuisance, was sharply presented to this court. It was insisted in that case that the Health Commissioner was disqualified from sitting as a member of the board on the ground that before the board had met to consider the case, that is to say, in the written notice issued by the Health Commissioner to the relator calling upon relator to answer the charge, he had stated in his opinion the works as operated constituted a nuisance and were detrimental to the public health and for that reason it was insisted that he was disqualified from sitting in such hearing. It was also contended in that case that in proceedings of this kind the party to be affected is entitled to the same degree of impartiality in the members of the board as the law prescribes for a juror who is to try a cause in a court of justice. In responding to this contention, this court said: “We do not agree to that proposition. Proceedings of this kind from necessity must be conducted with less strictness than the trial of a law suit in a court of justice. Such
In our opinion the mayor was not disqualified from considering the charges preferred against the-relator in the case at bar. In reaching this conclusion we are not unmindful of the cases to which our attention has been directed by counsel for appellant. A
III.
This brings us to the final contention urged by appellant, that is, that the provisions of the charter of St. Louis under which the mayor removed relator from office, are not in harmony with the Constitution and laws of the State, furthermore were repealed by the Act of April 23, 1877.
As to the first subdivision of this proposition, that the charter provisions conferring the right and power upon the mayor to remove officers are not in harmony with the Constitution and laws of this State, it is sufficient to say that that question was fully treated herein in disposing of the first proposition in this cause. What was there said in the discussion of the charter provisions and the Constitution of this State is equally applicable to the first subdivision of this proposition.
Recurring to the second subdivision of the third proposition, that is, that the charter provisions conferring power upon the mayor to remove officers upon charges and after due notice, were repealed by the Act of 1877, we find' that the sections .upon which relator relies were carried into the revision of 1899 as sections 8853 to 8856, inclusive. These sections pro
Manifestly the provisions of the Act of 1877 did not expressly repeal the charter provisions of the city of St. Louis conferring power of removal of officials upon the mayor, and applying the well-settled rules as to repeal by implication, it cannot be held that such charter provisions were repealed by the general law under the Act of 1877. “A repeal by implication must be by necessary implication. It is not sufficient to establish that the subsequent law or laws cover some, or even all, of the cases provided for by it; for they may be merely affirmative, or cumulative, or auxiliary. But there must be a positive repugnancy between the provisions of the new law and those of the old; and even then the old law is repealed by implication only pro tanto, to the extent of the repugnancy.” [Anderson’s Law Dict., p. 879.]
It may be also added that this court in the Walbridge ease, 119 Mo. 383, in no uncertain terms gave expression to its unqualified approval of the provisions of the charter of the city of St. Louis which conferred the right and power upon the mayor upon charges, after due notice and a fair and impartial hearing, if the facts warranted it, to order the removal of officers. In expressing such approval, this court said: “Surely nothing could more conduce to the good government and welfare of the city than that it should annex ‘ other penalties’ (than those enacted by the general laws of the State) for the punishment of its own officers, than
That the Act of 1877 to which our attention is directed, did not repeal expressly or by implication the charter provisions of the city of St. Louis conferring power upon the mayor to remove officials has long been settled by this court, and in our opinion correctly settled by the cases herein suggested; hence the ruling upon this proposition must be adverse to the appellant.
In the discussion of the legal propositions disclosed by the record in this cause we have ignored the evidence embraced in the record as taken before the mayor. It is well settled in this State, both by the Courts of Appeals and the Supreme Court, that the writ of certiorari brings up for review only the record proper and not the evidence. There is no provision of the statute by which it is provided that the evidence taken before the mayor in cases of this character may be preserved and made a part of the record, and being no part of the record it could not be reached by a writ of that character in the" case at bar, nor has it any place in this proceeding. This conclusion is in perfect harmony with the express rulings of the Courts of Appeal in State ex rel. v. Walbridge, 62 Mo. App. 162; State ex rel. v. Walbridge, 69 Mo. App. 657, and with State ex rel. v. Baker, 170 Mo. 383.
Entertaining the views to which we have herein given expression, it results in the conclusion that the judgment of the trial court should be affirmed, and it is so ordered.