State ex rel. Reid v. Walbridge

Jan 8, 1894
Versions:24 S.W. 457
119 Mo. 383
1894 Mo. LEXIS 2
Sherwood, J.

The foregoing premises are laid down ag the basis for the following remarks:

In Manker v. Faulhaber, 94 Mo. 430, action was brought against the mayor and others for damage for maliciously removing the plaintiff from the office of city collector, in November, 1878. The defendants justified under the amended charter of that city, approved March, 1875, which contained this provision: “The mayor * * * shall have power, with the consent of the board of aldermen, to remove from office any person holding office created by charter or ordinance, for cause, and on application of three-fourths of the board of aldermen he shall be compelled to remove any officer created by ordinance.” The trial court refused to permit that section of the charter to be read in evidence, and instructed the jury that, under the constitution and laws of Missouri, as they existed in November, 1878, the mayor and board of aldermen of the city of Sedalia had no legal right or authority to remove the plaintiff from the office of city collector. This action of the trial court was held erroneous; that the charter of Sedalia was unaffected by the act of 1877; that the charter not conferring on the mayor *389and aldermen the power to remove a municipal officer, was special and particular, while the act of 1877 was general and affirmative, without repealing words; that the two acts were not irreconcilably inconsistent, and, therefore, there was no repeal by implication.

That ruling can not be otherwise regarded than as decisive of this case; since the charter of St. Louis of 1876 is no more inconsistent with the general law of 1877 than was the charter of Sedalia on the point already quoted. Manker v. Faulhaber, has been approvingly cited as to repeals by implication in State v. Noland, 111 Mo. loc. cit. 484, and directly followed in State ex rel. v. Slover, 113 Mo. 202, where it was distinctly ruled that section 8233, Revised Statutes, 1889, providing that an official stenographer might 'be removed without the intervention of a jury, for “incompetency or any misconduct in office,” by the judge of the circuit court, on charges entered of record, and notice given, could stand as consistent with section 7127, aforesaid, and that the provisions of section 8233 might well be regarded as simply furnishing a cumulative remedy to that ordained in the former section, in relation to removals for failure to give personal attention to official duties.

“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., 879.

Other considerations tend toward the same result as that announced in the cases cited. It will be ob*390served that section7,of article 14 aforesaid, says: “The general assembly shall, in addition to other penalties, provide for the removal,” etc. The term penalty has been defined as the punishment which the law inflicts for its violation. It is commonly but not exclusively a pecuniary punishment; it embraces as well the idea of forfeiture as of a fine. 18 Am. and Eng. Encyclopedia of Law, 269, and cases cited.

The terms penalty and punishment are frequently used as the synonyms of each other. Thus Webster defines punishment as pain, suffering or loss inflicted on a person because of a crime or offense, a penalty inflicted by a court of justice, and the latter term he defines as punishment for a crime or offense. For the last word he gives as synonyms, misdemeanor, transgression, delinquency; and for misdemeanor he gives misconduct, misbehavior. He also gives penalty, fine, mulct, as thAequivalents of forfeiture, that is, the loss of some right, estate, office or effects by an offense, etc. “Punishments not corporal are fines, forfeitures, suspension or deprivation of some political or civil right; deprivation of office, and being rendered incapable to hold office.” 2 Bouvier L. Dict. The deprivation of any civil right for past conduct is punishment for such conduct. Cummings v. Missouri, 4 Wall. 277.

Taking, then, the word penalty in the broad sense, already set forth in the foregoing definitions, as tantamount to punishment, fine, forfeiture, deprivation of some office or right, for some offense, misdemeanor, misconduct or delinquency, it is not difficult to see that the framers of the constitution did not intend to limit the power of the general assembly to pass laws for removal from office, county, city or township officers to the grounds specified in section 7. The exercise of that powei; was commanded “in addition' to other penalties,” penalties theretofore existing or which might *391subsequently be enacted.

Long’ before the constitution of 1875 was adopted, penalties had been imposed by the general assembly for official misconduct. As far back as 1825, we had a statute, still on the statute books, providing for punishing any officer who should be convicted of “any willful misconduct or misdemeanor in office, or neglect to perform any duty enjoined on him by law.” State v. Gardner, 2 Mo. 23; Stat. 1835, p. 200, sec. 20; R. S. 1845, p. 391, sec. 21; R. S. 1855, p. 614, sec. 21; Glen. Stat. 1865, p. 808, sec. 21; 1 R. S. 1879, sec. 1488; R. S. 1889, sec. 3737. Other statutes are still extant which long antedate our present constitution, making provision for the punishment by indictment and for removal, from office of officers found guilty of willful and malicious oppression, partiality or abuse of authority or extortion or fraud committed in an official capacity. R. S. 1835, pp. 200, 201; R. S. 1845, pp. 390, 391; R. S. 1855, pp. 613, 614, 615; Gen. Stat. 1865, p. 808; R. S. 1879, secs. 1483, 1484, 1485, 1486, 1488; R. S. 1889, secs. 3732, 3733, 3734, 3735.

The legislature evidently took the same view as tjh'at already announced as- to the meaning of “other penalties,” when they enacted section 1642, Revised Statutes, 1879, which first provided for the punishment by fine or imprisonment or both, of any state, county, city, town or township officer for drunkenness in office,, and for the removal of such officer, unless one liable to impeachment. R. S. 1889, sec. 3928.

The conclusion from the premises seems inevitable that the whole machinery of the law as then provided, or' thereafter might be provided, for the punishment or removal from office of unworthy officials, was regarded by the framers of the constitution as furnishing additional penalties to those they commanded the general assembly, by section 7, to fur*392nish for the removal of the class .of officers enumerated in that section. If the words in question do not bear the meaning here imputed to them, then they must be regarded as without meaning, force or effect, which under a familiar rule, is an impossible supposition. If these views be correct, then the term “other penalties” as used in section 7 aforesaid, may well be applied also to provisions in the city charter and in ordinances passed in pursuance thereof, punishing neglect, misconduct or misdemeanors in the performance or nonperformance of official duty by removal from office. There is nothing, certainly, in the section in hand which restricts “other penalties” to those created by the general assembly, and no reason is perceived why they should thus be restricted. This court is thoroughly committed to the doctrine that a city may pass ordinances punishing as crimes acts also made punishable by indictment under the laws of this state. In Ex parte Hollwedell, 74 Mo. 401, it was said: “The right of a municipal corporation in this state to maintain in its own name a proceeding to recover a fine for nonobservance of an ordinance, has never been questioned, even though there be a general law of the state also imposing a fine for a like offense.” Citing St. Louis v. Cafferatta, 24 Mo. 94; Independence v. Moore, 32 Mo. 392; St. Louis v. Bentz, 11 Mo. 61; State v. Wister, 62 Mo. 592; State v. Harper, 58 Mo. 530.

In the more recent case of St. Louis v. Schoenbusch, 95 Mo. 618, under the general welfare clause of the charter, page 326, section 26, paragraph 14, providing that the city should have power “to pass all such ordinances, not inconsistent with the provisions of this charter, or the laws of the state, as may be expedient, in maintaining the peace, good government, health and welfare of the city, its trade, commerce and manufactures, and to enforce the same by fines and penal*393ties,” it was- ruled, after citing some of the- above authorities, that an ordinance providing for the punishment of any person who should cruelly beat any dumb animal, etc., should be deemed guilty of a misdemeanor, and upon conviction should be fined, etc., was valid, notwithstanding there was no special grant of power to ;be found in the charter for passing such an ordinance; and notwithstanding the offense was punishable either under the general laws of this state or under the ordinance, this court holding that the general 'welfare clause heretofore quoted, furnished a * sufficient basis to uphold the ordinance in question; that it was not inconsistent with the laws and constitution of this state, under the authorities cited, and that its enforcement was fairly within the power to maintain the peace, good government and welfare of the city. By. parity of reasoning the same principle may well be applied in the case at bar. 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 incompetent or unworthy officers should be removed in a more summary way than that afforded by the method of procedure provided in section 7127 and its associate sections..

The legislators of a city when assembled for the performance of their legitimate functions and when acting within the confines of their delegated authority, constitute as Judge Scott happily expressed it in Taylor v. Carondelet, 22 Mo. 105, “a miniature general assembly” and the law-making .power “gave their ordinances * * * the force of laws passed by the legislature of the state.”

Lord AbiNGEB, said: “The by-law has the same effect within its limits, and with respect to the persons *394upon whom it lawfully operates, as an act of parliament has upon the subjects at large.” Hopkins v. Mayor, 4 M. & W. 621. It is hardly necessary to say that this is the general view. 1 Dillon’s Mun. Corp. [4 Ed.], sec. 308, and cases cited; Fath v. Railroad, 105 Mo. loc. cit. 548, and cases cited.

Besides, as stated by the eminent authoT just cited: “The power to amove a corporate officer from his office, for reasonable and just cause, is one of the common-law incidents of all corporations. This doctrine, though declared before, has been considered as settled ever since Lord Mansfield’s judgment in the well known case of The King v. Richardson. It is there denied that there can be no power of amotion, unless given by charter or prescription; and the contrary doctrine is asserted — that from the reason of the thing, from the nature of corporations, and for the sake of order and government, the power is incidental.” Ibid., sec. 240.

In this instance, not only was the power of amotion of an offending officer for reasonable and just cause one of the common law incidents and resultants of the incorporation of the city, but it was specifically conferred by the charter, and delegated to the mayor and enforced by ordinance. It is true that neither charter nor ordinance make any provision for the means whereby the amotion of ' an appointed officer is to be effected; but where a grant of power is given, all .the means necessary to effectuate the power pass as incidents of the grant. Sutherland on Stat. Construe., sec. 341; 2 Beach on Pub. Corp., sec. 1314; Ex parte Marmaduke, 91 Mo. loc. cit. 262, and cases cited; Grover v. Huckins, 26 Mich. 476.

In the case presented, the power to amove the officer is “for cause,” and no notice is mentioned as requisite to be given to the officer to be proceeded against; But the law in accordance with the principles *395of justice, — principles which are fundamental and eternal, will require that notice be given before any person be passed upon, either in' person, estate or any other matter or thing to which he is entitled. And though the statutes 'do not in terms require notice, the law will imply that notice was intended. Laughlin v. Fairbanks, 8 Mo. 370; Wickham v. Page, 49 Mo. 526; Brown v. Weatherby, 71 Mo. 152. And what the law will imply, is as much part and parcel of a legislative enactment, as though set forth in terms. State ex rel. v. Board, 108 Mo. 235; Sutherland on Stat. Construc., sec. 334, and cases cited.

Notice in this case, however, had been given and charges preferred, and this court following the authorities elsewhere, has decided that even where the removal is “for cause” that still notice must be given. State ex rel. Dennison v. City, 90 Mo. 19; see, also, Mechem’s Pub. Offices and Officers, see. 454. But of course, in circumstances like the present, if an officer be removed, it belongs to the courts to determine the sufficiency of the cause alleged. Mechem’s Pub. Offices and Officers, sec. 450, and cases cited.

It is alleged in the petition and also in the brief of relator that in a trial before the mayor, there are no provisions of law for summoning witnesses in his behalf, or to compel their attendance, or to swear them or denouncing the pains and penalties of perjury in giving their testimony. But the mayor is authorized and required by law to administer any and all oaths in connection with the business of his office, etc. R. S., 1889, sec. 7120. This being the case, if any witness should swear falsely before the mayor on a trial of charges against an officer, perjury could be assigned thereon. 2 Bishop’s New Cr. Law, secs. 1015, 1017.

And section 31 of article 4 of the charter requires of the city marshal that he execute and return all pro*396cesses or orders of the mayor. But even if there were no such provisions, no machinery provided by the charter or ordinance for a trial before the mayor, yet the power being granted by the charter and enforced by the ordinance, the means to effectuate the power granted, would pass as a necessary incident. The books are full of illustrations of this axiomatic legal truth, as shown by the authorities heretofore cited. The constitution of Michigan conferred power on the governor to •remove certain state officers, for certain specified causes, but provided no means or measures whereby the removal was to be accomplished, nor was there any valid statute prescribing any method of examination or of procedure; and yet, notwithstanding this, it was held that the constitution having conferred such power it .was held to be judicial; that it needed no statute to make it operative; that the grant of power carried with it all necessary incidental powers, without which the grant would be ineffectual, and that the officer proceeded against,' in order for the proceedings to be valid, must have notice, charges preferred against him; a full opportunity to examine and cross-examine witnesses and to be heard on the facts and on the law. Dullam v, Willson, 53 Mich. 393.

G-uided by the foregoing authorities, we hold that the charter of the city of St. Louis in the particular under discussion, is in harmony with the constitution and laws of this state; that the mayor being endued with power to remove the relator ‘Tor cause,” could do so on notice given, charges preferred and full opportunity to be heard, and that the mayor has all the power necessary to carry into effect the authority granted him by the charter, and that the charges contained in the record are sufficient if relator be found guilty thereof, to authorize his removal.

Holding these views, we deny the writ of prohibition.

All concur.