236 Mo. 18 | Mo. | 1911
On the petition of relators a preliminary rule was entered April 25, 1911, addressed ,to the respondent, one of the judges of the circuit court of Jackson county, requiring him to show cause why a writ of prohibition should not be issued to forbid him taking jurisdiction in a canse pending in his division of the circuit court of Jackson county, wherein P. C. Folk and others are plaintiffs and the city of Kansas City and others are defendants. That is a suit in equity; the plaintiffs are clerks in the waterworks department of the city government. Three of the defendants constitute the Board of Civil Service Commissioners of that city, one is the Assessor and Collector of water rates, four compose the Board of Fire and Water Commissioners, and one is the Comptroller. The petition in that suit states substantially as follows:
When the plaintiffs entered into the service of the city as clerks in the waterworks department there was an ordinance of the city having special reference to employees in that department of the city’s service, which is section 1176, Eevised Ordinances of 1898, which provides: “That hereafter- no person shall be appointed, employed or discharged in any branch of the water works service, for or on account of political considerations. That the Board of Public Works and the Assessor and Collector of water rates, each in respect to the employees in their respective branches of the waterworks service, shall have the right to suspend and discharge employees under their control and direction for cause only; and this right shall be exercised only in the following manner, that is to say: Any employee who has heretofore or shall hereafter serve for such
On the filing of the petition an order issued restraining the defendants “until the further order of the court from in any manner interfering with the plaintiffs, or either of them, in their positions as clerks in the office of the assessor and collector of water rates of Kansas City, Missouri, and from appointing or attempting to appoint any person or persons to the positions of the plaintiffs, or either of them, and-from doing any act affecting the positions of the plaintiffs or either of them, or their compensation for their services as such or their right to said positions in said office of the assessor and collector of water rates.” The order further directed.
On April 8th, there was an amended petition filed, which was substantially the same as the original petition, with the addition of three new names as plaintiffs; ■on the filing of the amended petition a restraining order like the one above mentioned was made.
The parties appeared by their attorneys in court on March 30th, and arguments for and against the granting of the injunction were heard. Counsel for defendants objected to the jurisdiction of the court, ■first, because a court of equity has no jurisdiction to ■determine a contest for a public office; second, the ordinance, 1176, on which plaintiffs base their case, had been repealed. Affidavits on both sides were filed and the application for an injunction was taken under •advisement. While the matter was so pending, one of the plaintiffs, J. J. McIntyre, filed a petition in the ■cause stating that the defendant Gus Pearson, the Comptroller, had, since the issuance of the temporary restraining order, refused to deliver to him a warrant for his salary for one half the month of March, and prayed an order on him to show cause why he should not be punished for contempt as for disobedience of the restraining order.
It is alleged in the petition of the relators herein that •on the filing of that petition a citation issued as prayed •and that on the return thereof the court made the following order:
“Now this day, this cause coming on for hearing upon the order upon Gus Pearson to show cause why he •should not be punished for contempt (of- court) it is •shown to the court that a warrant of Kansas City for the compensation of J. J. McIntyre, one of the plaintiffs herein, was issued by Kansas City and held by the ■defendant, Gus Pearson, comptroller of said city, and uot delivered to the said J. J. McIntyre, and said Gus*25 Pearson showing to the court that he was advised by his counsel that said warrant should not [have] been issued to said J. J. McIntyre for the period from March 15th to April 1st, as it appears on its face, [but] only from March 15th to March 23d, the day when the Board of Civil Service Commissioners published an eligible list for the position occupied by said J. J. McIntyre; and
“Whereas, it is the order of this court that said warrant should be turned over to said J. J. McIntyre,, and that he should be paid his wages from March 15,. 1911, to April 1, 1911.
“It is therefore ordered that on the delivery, of said warrant to said J. J. McIntyre the said Gus Pearson shall be purged of contempt in this action, and that the cost of said contempt proceedings shall be taxed against said Gus Pearson, and that on the payment of such costs the said Pearson be purged of contempt.”
Thereafter on April 15, 1911, the court made the following order:
“Now on this day come the plaintiffs by their attorneys and the defendants by their attorneys and the court having read plaintiff’s petition and the affidavits filed therewith and the arguments of counsel, and it appearing to the satisfaction of the court that upon the matters presented to the court the plaintiff and each of them are entitled to a temporary injunction as. prayed for in their petition. It is therefore ordered by the court that a temporary injunction be and is hereby granted enjoining the defendants and each of them, their agents, servants and employees, until the further order of this court, from in any manner interfering with the plaintiffs or either of them in their positions as clerks in the waterworks department in Kansas City, Missouri, and from attempting to appoint any person or persons to the positions of the plaintiffs or either of them, and from doing any act affecting the positions of the plaintiffs or either of*26 them, or their compensation for their services as such -or their rights to said positions in said waterworks -department. ’ ’
The order required plaintiffs to give bond which was done.
The respondent filed his return herein on May 8, 1911, and on the same day relators filed their motion for judgment on the return. We must, therefore, for the purpose of that motion, take the statements in the return to be true. The return sets out all the orders made in the cause pending in the circuit court, and as stated in the return they do not differ from those stated in relators ’ petition, except in one clause in the order of April 15th, in the contempt proceeding. As ■stated in the relators’ petition the order in that proceeding contained these words: “Whereas, it is the order of this court that said warrant should be turned over to said J. J. McIntyre and that he should be paid his wages from March 15, 1911, to April 1, 1911.”
But the words “and that he should be paid his wages from March 15th to April 1, 1911,” are not in the order.
In the return it is said:
“That after the issuance of the restraining orders hereinbefore set out it was agreed by and between C. B. Leavel, of counsel for plaintiffs, and A. F. Smith, ■of counsel for defendants, in the presence of this respondent, that said Smith would have said defendant Pearson deliver the warrants which were already drawn in favor of these plaintiffs, and which were- in said Pearson’s hands only for the purpose of turning the same over to said plaintiffs; that said Pearson did turn over all of the warrants belonging to the plaintiff except the warrant of J. J. McIntyre, which warrant said Pearson refused to turn over to said McIntyre, giving as his reason for so refusing that he had been instructed to refuse to. do so by said Smith; that on*27 account of the refusal of said Pearson as aforesaid, the court made the following order:
“ ‘Upon the petition of J. J. McIntyre for contempt, verified by affidavit, it is ordered that citation issue to Gus Pearson, one of the defendants herein, to appear before the Hon. O. A. Lucas, Judge of Division No. 2 of this court, on the 15th day of' April, 1911, at 9:30 o’clock a. m., and show cause, if any he has, why he should not be punished for a contempt in disobeying the order of this court, in failing to deliver to said J. J. McIntyre a warrant for his salary as a clerk in the office of the Assessor and Collector of Water Rates of Kansas City, Missouri, for the last half of the month of March, 1911.’
“That on said 15th day of April, 1911, said Pearson also appeared before said court, and upon the statement of his said counsel that the failure to turn over said warrant was due to the advice of A. F. Smith, and upon the agreement of parties and promise ■of said Pearson to turn over said warrant to said McIntyre, this court purged said Pearson of contempt, on payment of costs of citation; and thereafter, to-wit, on the 18th day of April, 1911, the said Smith requested the court to make the record entry as set out in the petition filed herein, but that the court on its own motion struck out the words ‘and that he should be paid his wages from March 15, 1911, to April 1, 1911, said order of the Board of Civil Service Commissioners, notwithstanding,’ so that the record entry reads and is as follows:
“ ‘Now on this day this cause coming on for hearing upon the order upon Gus Pearson to show cause why he should not be punished for contempt, it is shown to the court that a warrant of Kansas City for the compensation of J. J. McIntyre, one of the plaintiffs herein, was issued by Kansas City and held by the defendant Gus Pearson, comptroller of said city, and not delivered to the said J. J. McIntyre, and said*28 Cus Pearson showing to the court that he was advised by his counsel that said warrant should not have been issued to said J. J. McIntyre for the period from March the 15th to April 1st, as it appears on its face, only from March 15th to March 23d, the day when the Board of Civil Service Commissioners published an eligible list for the position occupied by said J. J. McIntyre, and whereas it is the order of this court that said warrant should be turned over to said J. J. McIntyre.
“ ‘It is therefore ordered that on the delivery of said warrant to said J. J. McIntyre the said Gus Pearson shall be purged of contempt in this action and that the cost of said contempt proceedings shall be taxed against said Gus Pearson, and that on the payment of such costs the said Pearson be purged of contempt, to which order and ruling of the court the defendant Gua Pearson and his eodefendants objected and excepted and still except.’
“This respondent states to this Honorable Court that the warrant in question was, as the court was informed and believes, a warrant that had already been duly executed by the proper authorities, was made payable to said McIntyre, and was in the hands of said Pearson for the sole purpose of turning the same over to said McIntyre and taking his receipt therefor.
“That this court has never at any time made any orders for the payment of any money, or to compel or attempt to compel relator Kansas City to pay any money to the plaintiff in said cause.
“This respondent submits that the circuit court as aforesaid has jurisdiction of the subject-matter of said controversy ánd of the persons of the relators, and did not exceed its jurisdiction therein for or because of any of the reasons or causes mentioned in relators’ petition.
*29 “Respondent further states that since being served with the order made by this Honorable Court respondent has refrained from all action in the premises and holds himself in readiness to comply with any orders of this court.”
In justice to the learned counsel who drew the petition for the relators in this proceeding, we deem it proper to say that we are satisfied that the misstatement in the petition was a mere mistake on his part. In his statement filed herein he states that he himself wrote the order in question and submitted it to the court; as written by him, it contained the words: “and that he should be paid his wages from March 15, 1911, to April 1, 1911, said order of the Board of Civil Service Commissioners, notwithstanding,” and he did not know that those words had been stricken out by the court. And apparently he had not discovered that fact when he filed his brief in this case, because on page 70, Point III, he says: “The order of the trial court was that defendants must not only keep the plaintiffs in service, but they must pay them their salaries under penalty of. commitment for contempt in case they refuse to do so. The result of this order would be imprisonment for debt, which is illegal.” And under that point in his brief authorities are cited to show that imprisonment for debt is forbidden by the Constitution.
The main points urged in relators’ petition for a writ of prohibition are enumerated as six, but they may be condensed into three, viz.: 1st, that a court of equity has no jurisdiction to try title to a public office or to a position 'in the public service; 2d, it has no jurisdiction to order defendants to pay wages to the plaintiffs under penalty of imprisonment in case they do not do so; 3d, it has no jurisdiction to deprive relators of their power of suspension or discipline or removal, over the plaintiffs in said action, in any manner or for any cause.
II. The proposition that a court of equity has. not jurisdiction at a preliminary hearing to order defendants to pay money to- the plaintiffs under the pains and penalties consequent on contempt of the court’s order, is correct as an abstract proposition of law, but it has no application to the facts of this case. The circuit court made no such order and has not threatened to do so. The warrants which the court ordered turned over to the plaintiffs had already been issued by proper authority and placed in the hands of the comptroller to he delivered to them; he delivered all except one, and that one he withheld on the advice of the attorney for the relators, who, after complaint was made to the court, advised that it also be delivered, and it was done.
That was one of the main grounds urged in the petition of relators for the writ of prohibition and, as above shown, it rested on a misapprehension of the fact.
III. The proposition that a court of equity has no jurisdiction to deprive the relators of their power to remove the plaintiffs from their positions in any manner and for any cause, is based on the assumption that the defendants have that authority. Of course if they have such authority a court of equity cannot deprive them of it; but if they have it not, yet assume it and attempt to exercise it to the injury of the plaintiffs, a court of equity, may forbid them doing so. This court cannot assume that the relators have, or
We are favored with a very interesting brief on the part of the relators on the questions of law involved in the cause pending in the circuit court, but it would be an unwarranted invasion of that court’s province if we should undertake to decide those questions.
Our conclusion is that' the preliminary rule to show cause should be dissolved and the writ of prohibition denied.