269 Mo. 602 | Mo. | 1917
This is an original proceeding in prohibition against respondent .Clarence A. Burney, as one of the judges of the circuit court of Jackson County, to prohibit him from taking further cognizance of certain suits by injunction brought by respondents Hiram W. Hammil and R. L. J ames, the object of which latter proceedings was to enjoin relator (who is one of the Police Commissioners of Kansas City) from sitting in the hearing of certain charges pending against said Hammil and said James before said commissioners.
■ As forecast above, respondents Hammil and James are members of the police force of Kansas City; Hammil being chief of police and James a captain of police there
‘ ‘ Defendant has caused to be prepared and filed with the Board of Police Commissioners aforesaid, complaints against plaintiff, charging him with conduct unbecoming an officer of the police department, and has caused said complaints to be set for hearing before said Board of Police Commissioners at two o’clock on the afternoon of Wednesday, December 6, 1916; and defendant threatens to and will, unless restrained by this court, take part as a member of said Board of Police Commissioners in hearing and deciding said complaint, at such time as they may be called up for hearing before said board.
“Some weeks ago defendant wrongfully, fraudulently, oppressively and wickedly conspired and confederated with one John P. Mullane and others, all of whose names he is now unable to state, to cause the dismissal and removal of plaintiff from his said position and office as chief of police of said police department, and as part and parcel of said conspiracy said complaints were prepared by said Murphy in his own handwriting, but said Murphy fraudulently, wickedly and oppressively used his position as said commissioner to coerce and force a probationary patrolman of said city to sign charges to be preferred against plaintiff, so that the true attitude and connection of defendant therewith might be concealed.”
The case has been briefed and being a matter wherein both parties deem that the public interests require a speedy determination, it was submitted to us without argument ; an order entered herein making our provisional writ absolute, and the matter of filing a written opinion deferred till a more convenient season.
The sole proposition involved is whether relator Murphy, who caused to be filed the charges against respondents Hammil and James, is for that he caused the filing of said charges, disqualified from sitting as one of the Police Commissioners of Kansas City in the trial of said latter respondents upon such charges; relator taking the position that he is not so disqualified and respondents taking the position that he is disqualified. If he is disqualified then our preliminary writ herein should be quashed; if he is not, then such writ must be made absolute.
The Board of Police Commissioners of Kansas City consists of two members (who are appointed by the Grovemor) and of the mayor of that city, who is a member ex officio of such board. It thus appears as a matter of interest, without/perhaps affecting the point at issue, that there are two members of the board charged under the statute with the duty of trying the- charges against respondents Hammil and James, against whom no attack is made.
“They shall at all times of the day and night, within the boundaries of the city, as well on water as on land, preserve the public peace; prevent crimes and arrest offenders; protect the rights of persons and property; guard the public health; preserve order at every public election and at all public meetings and places, and on all nublic occasions; prevent and remove nuisances on all streets, alleys, highways, waters and other places; provide proper police force at every fire for the protection of firemen and property; protect emigrants and travelers at steam boat landings and railroad stations; see that all laws relating to elections, lotteries and lottery policies, and to the observance of Sunday, and relating to pawnbrokers, intemperance, vagrants, disorderly persons, gambling and bawdy houses, and every other kind and manner of disorder and offense against the public health and good order of society are enforced,- and shall enforce all laws and ordinances which may be properly enforceable by such police force. ’ ’
In order to carry out the broad and onerous official burdens laid upon these commissioners, the statutes provide that such board is authorized and required to employ a permanent police force and it is given power to equip and arm the same in such wise as they may deem necessary. [Sec. 9776, R. S. 1909.] Relative to the manner of appointing and removing’ the members of such permanent police force and to guide and restrict the actions of such board in those behalves, it is further provided by statute that “they will in no .case and under no pretest appoint or remove any policeman, or officer of police, or other person under them, for, or on account of the political opinions or affiliations of such policeman, officer or other person, or for any other cause or reason than
Touching the conditions under which the removal of any policeman, or of any officer of police, may be had, and the manner-and method of such removal, the statute among other things provides thus:
“Having served one year probationary service to the satisfaction of the board, such policemen and police officers may be appointed for an additional term of three years, and shall thereafter be subject to removal only for cause and upon complaint being made, or charges being preferred against them, a copy of which complaint or charges, setting forth the grounds thereof, shall be .given to such policeman not less than forty-óight hours prior to the time the complaint or charges are to be heard by the' board, and they shall have a right to appear before the board and be confronted by the witnesses against them, and to be defended by counsel, and the board, after hearing the charges, shall take a vote by yeas and nays, to be entered upon the records whether or not the charges have been sustained, and what punishment, if any, shall be imposed. If the charges are found by the board to be sustained by the evidence, the board may remove such policemen or police officers, or the hoard may, instead of removal, suspend, reprimand or impose a fine upon the policeman or police officer, and in case any fine so imposed is not paid, the same shall be deducted from the salary of such policeman or police officer. If complaint is made or charges preferred against a policeman or police officer, which, in the opinion of the board, does not constitute an offense of which the board should take cognizance, the board shall dismiss such complaint or charges.” [See. 9784,JR. S. 1909.]
It is clear we think, that the statutes governing the matter of charges and complaints against policemen and police officers, contemplate that charges may be filed with the Board of Police Commissioners, not only by private persons and individuals, but also by the Board of Police
The Wells case, supra, was a hearing by the defendant therein, who was at the time the mayor of the city of St. Louis, upon a complaint against Heimburger, relator therein, as Commissioner of Public Buildings of the city of St. Louis. In such hearing upon charges filed, Mayor Wells was proceeding and acting under charter provisions, in all respects, so far as concerns the legal principle involved, similar to the statutes here under discussion. The point involved upon the appeal in the Wells case was identically the same question here confronting us, that is, whether the fact that the complaint was caused to be filed by an administrative officer who by charter was authorized and empowered to hear those charges, disqualified such officer from hearing the same. Passing upon this identical point Fox, P. J., in an opinion unanimously concurred in by Division Two of this court, said:
“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.*611 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 charge himself, it by no means follows that he is prejudiced or biased or has any other interest in the proceeding than to ascertain whether or not the charges are true. The mayor has certain duties imposed upon him and he is entitled to the presumption that he will conscientiously and in good faith discharge those duties. It certainly would be a very violent presumption that the mayor of a great city in the investigation of charges against officials acted from spite or any other improper motive. The only presumption that can be indulged, in the absence of any showing to the contrary, is that he is acting in obedience to the commands of the organic law of the city of which he is the chief executive.”
We do not think there can be any question but that the Wells case, supra, and the cases from this court in the Wells case cited and discussed, rule this one upon principle; nor have we any doubt that the reason of the thing points inexorably to the same view. For we have seen that by statute an onerous and broad duty is placed upon the Board of Police Commissioners of Kansas City, to provide a capable and efficient police force and to use that force in preserving peace and order in their city. We must assume that the individual members of the Board of Police Commissioners will honestly, properly and efficiently perform the duties saddled upon them by statute (State ex rel. v. Wells, supra; State ex rel. v. Walbridge, 119 Mo. 383), and which by solemn oath they have bound themselves properly, efficiently and honestly to perform. We have seen that the sole judicatory by which trials of charges against policemen and police officers may be had, is before this board itself, and that it may hear complaints filed as well by its own members as by other police officers and by private individuals.
It follows that our provisional writ of prohibition issued herein against respondent Burney, should be made absolute. Let this be done.