State Ex Rel. Strait v. Brooks

*713 DAUES, P. J. — This is a mandamus suit begun in the circuit court of the city of St. Louis, in which relator seeks to compel the appellants, officers of the municipality of the city of St. Louis, to reinslate him to the position of clerk in the street department of said city and to compel the payment of his salary as such clerk since June 16, 1924. The lower court issued its alternative writ of mandamus; there was a final hearing, and a peremptory writ of mandamus was issued in which the officers of the city were directed to rescind their action in transferring another employee to the place theretofore filled by relator and commanded that relator be installed in that position as being the only person entitled under the charter and rules of the Efficiency Board to such position. The officers were further ordered to draw a warrant for relator’s salary at $160 per month from June 16, 1924, to the date of certification. From this judgment the city officers, being respondents below, have appealed. The relator being respondent here, and the respondents below being appellants here, to avoid confusion we will refer to respond *714 ent here as relator, and to the appellants here as the respondents. This, we think, will lend a more willing understanding to our statement of the facts. The case turns almost entirely upon a proper construction of the laws of the city of St. Louis, charter, ordinance and promulgated rules thereunder. While the facts are in many respects strongly disputed, such disputed facts, as we understand the case, do not become of serious consequence, as is hereinafter pointed out. Admittedly, relator began as an employee of the city on November 8, 1911, as a bookkeeper-clerk in the street department, more exactly named, the maintenance and cleaning section thereof, and in a branch office located on Clark avenue. ITe continued at such work and was so engaged when the city adopted its present charter in 1914. The new charter provided for an Efficiency Board for the city and created a plan something akin to, though not exactly, a civil service system for employment in the different departments of the city. The new charter also provided in section 9, article 18, for transferring old employees to the new system of municipal government, specifying that the old employees should continue in their present positions, subject to the charter and ordinances, until their discharge, reduction, transfer or promotion. Relator, then in the employ of the street department, was carried over-in the same position under the new charter. . In 1918 a classification ordinance for this department was adopted, being ordinance No. 30193. This ordinance organized the officers and employees in the department of streets and sewers in conformity with the powers given in the charter and making the positions suitable to the new conditions created under the new charter. This ordinance designated the number of employees in the department, fixed their compensation and repealed all ordinances then existing which were in conflict or inconsistent with the new ordinance. Relator, being particularly in the maintenance and cleaning section of the department, was directly affected by section 21 of said ordinance, which fixed the clerical schedule for that section as one clerk (CC II), four clerks (CC I), one stenographer-clerk (Cst C I), one bookkeeper (CB II). Section 22 of the ordinance provided for a sewer record and permit section, the clerical schedule thereof consisting of one clerk (CC III), one clerk (CC II); sub-professional schedule, six draftsmen (S-PD I). On December 1, 1922, a new superintendent over this section was appointed, and under his direction the clerical system in this section was changed, and it is in evidence that the head of the department did not deem relator competent to keep these records. Thereupon the newly-appointed superintendent, Ernest Paffrath, installed another employee in charge -of the records of that section and this *715 relator was made an assistant, retaining his classification as clerk grade II, under which classification he had theretofore been graded. An examination of the fiscal affairs of the city was then being made to promote efficiency and reduce public expenditures. Pursuant to that, the Efficiency Board, being charged with the classification of the employees of the city, made a survey of the personnel, duties and salaries in this section of the street department. This was in November, 1923. The Efficiency Board, through its chief examiner, concluded that the clerical force in that section could be reduced to one grade III (CC III) clerk and a stenographer, and this conclusion was duly adopted by the Efficiency Board. About this time Paffrath, the superintendent, under orders from the head of the department, assigned relator to the permit section of the street and sewer department in the City Hall proper, such section not being located at the Clark avenue office. Belator remained there as grade clerk II (CC II) until June 16, 1924, the date when ordinance No. 33151, the reorganization ordinance which repealed ordinance No. 30193, went into effect. This latter ordinance was a comprehensive ordinance completely reorganizing the department. This new ordinance, repealing everything ahead of it inconsistent therewith, provided in section 21 that the maintenance and cleaning section could have one clerk CC III and one stenographer-clerk C St C I. This was for the clerical schedule. In section 22 of such new ordinance relating to the sewer record and permit section, one clerk CC III was provided as the clerical schedule, and for the sub-professional schedule one draftsman S-PD III and one draftsman S-PD II. It is important to keep in mind that ordinance No. 33151 went into effect on June 16,' 1924. In this ordinance no provision is made for the employment of a grade II clerk in either the maintenance and cleaning section or in the permit section of the street and sewer department, and no ordinance was left alive which made such provision. So, then, so far as the relator’s position was then designated by ordinance, that position went out. The head of the street and sewer department transmitted to the Efficiency Board a card, in conformity with the rules of the Board, in which the Efficiency Board was notified that relator’s employment had been terminated, giving the reason that such position theretofore held by relator had been abolished by ordinance No. 33151. It is asserted by relator, and it is admitted by respondents, that relator was not given any formal notice in writing of a dismissal. However, it is quite apparent that relator was always fully aware that ordinance No. 33151 was being considered; that it had passed, and that his position, by its original designation at least, was abolished. This is shown by the evidence that relator and his political and personal friends repeatedly called upon the head of the depart *716 ment for the purpose of securing some other employment in the city for him. Of course, the ordinance went through the usual processes which imparted such notice. It is in evidence, too, that the head of the department promised relator to find a place for him when a suitable place could be found. At that time, so far as we can tell from this record, relator made no claim that he was still an employee of the city; he made no demand for his salary as such, until after a year had transpired and until a year had transpired after grade CC II clerk had been abolished by ordinance No. 33151. Relator also immediately after ordinance 33151 became effective, went to the chairman of the Efficiency Board about the situation, and there received the information that his only remedy would be to make an application to the Efficiency Board to be put on the reinstatement list so that he could be appointed when' the occasion arose in case of a vacancy. This relator did not do. It is relator’s position, as we understand it, that he was an employee of the city when the charter became effective, and that therefore, notwithstanding the ordinance abolishing his position by name, he could not1 be ousted out of his employment except for cause, and to support this and the same point made in many ways, relator adduced much evidence by which it was attempted to show that relator was ousted from his position by trickery in having a new ordinance passed abolishing his designated employment'; that the real reason for the removal of relator was to give another and a favored employee his place. And it is also insisted that relator was never properly discharged as authorized by the city law, and that he was not given a two weeks’ notice of his discharge, which relator contends he was entitled to. As we have already indicated, the case really turns upon a proper interpretation of the charter and ordinance of the city, and most of the record is beside the case. Relator in his brief concedes that if he was properly legislated out of his position by ordinance No. 33151, which became effective June 16, 1924, then this judgment must be reversed. But it is urged that the facts in this ease do not admit of that rule, because there is no testimony in the ease justifying an application of the rule. Relator’s testimony is quoted to the effect that on January 1, 1912, when he was employed under the old charter, the superintendent of that section of the street department announced to him in the presence of other employees that the (relator) would be “the chief clerk of that office,” and the evidence shows that relator was in that position up to November 23, 1923, when he was temporarily transferred to the permit section of the sewer division, and that clerkship CC 2 was the highest office and paid the highest salary in the maintenance and cleaning section of the sewer department; that he was never transferred to the sewer section but simply asked *717 to go down to the City Hall from the Clark avenue office, and that he was maintained on the Clark avenue office pay roll until June 16, 1924; that the duties of the two offices, CC 3 and CC 2 are comparatively the same. And from this evidence relator’s- counsel argues that the-position here involved was-that of “chief clerk,” and that this was the same position held by him during his entire service and that it does not matter that it bore the denominatioh CC 2 ór CC 3 afterwards; that he was in fact chief clerk at all times. The further argument is' made that relator was superceded by an employee named Ford, who entered the City employ November 10, 1911, as a laborer at $2 per.day, and it is insisted that relator was relieved - of his employment in order to make a place for Ford, who was not as fit as relator but who received the place because of favoritism. At the outset of the case counter propositions were advanced as to defects in the proceeding. Respondents say the peremptory writ does not conform to the alternative writ- and that therefore the peremptory writ is fatally defective. We have examined this point and rule against it. Relator, on the other hand,’ insists that the return filed by respondents below is not sufficient since it does not contain a specific denial of certain allegations of the writ. However, affirmative allegations in the return are’ sufficient to cure any fault in the return because of a failure to make -a specific denial. But whether that is so or not, relator proceeded upon the theory that all the allegations of the writ had been traversed, and we will not now, the question (so far as the record shows), being raised for the first time, hold the return insufficient. [State ex rel. v. Trammel, 106 Mo. 510, 17 S. W. 500.] . . The city of St. Louis does not have a strictly civil service, system. Civil- service, as generally understood, is- established not' only to create efficiency in public service,- but where such system is in vogue it protects, with conditions, employees in their position during good behavior. The charter nowhere uses the-term “civil-service,” but establishes a department which is called “The Efficiency Board.” Employees are divided into two classes, that is to say “classified service” and “unclassified service,’,’ and an appointment under the merit system in the classified service is to be made by the head of departments from an eligible list furnished by the Efficiency Board. However, the charter specifically provides, and about which there can be no mistake, in sections 7 and 12 of article 18, that the power of removal, even in the Classified service, rests in the'appointing officer, and such appointing officer may exercise-such power “with or without cause except as in this charter is otherwise -provided.” The charter makes an - exception in section 12 of said article, which is an inhibition against an officer discharging an employee or discrimi *718 nating against him for political or religious affiliations. So, therefore, there is nothing in either the charter or the ordinances which would prevent the superintendent under which this relator worked for the city after the charter went into effect in 1914 from discharging him with or without cause. Whether such provision of the charter is wise or unwise is not for us to discuss. Now it is a certainty from this record that relator on June 16, 1924, had his employment severed from the city. Hfe was not permitted to work there; his pay was stopped and another man was given his work. According to respondents, the position was abolished. If the position was abolished, this judgment is erroneous; if relator was discharged, it likewise cannot stand unless ordinance No. .28287, which provides that no employee shall be discharged without having been given fifteen days’ notice, is to be held valid as not being inconsistent with the charter which gives the appointing officer the right to discharge with or without cause except for reason of religion or political affiliations of the employee. We need not determine this question on this appeal. Relator says that since he was in this employment before the new charter took effect, he could not be removed under the new charter except for cause. This is based upon section 9 of article 18 of the charter, which provides that all persons in the city service holding positions in the classified service at the time the charter takes effect shall be entitled to retain their positions until discharged, transferred, etc., in accordance with the provisions of the.charter. This section of the charter simply means no more than that persons in the city employ at the time the old charter was extinguished shall be placed and remain in exactly the same position under the new charter and to abide of course by whatever provisions may be made thereafter by ordinance for such position; they shall remain in the service of the city under the new charter under the same terms as those who are later inducted into their positions under the regulations of the Efficiency Board, and of course shall in like manner be subject to removal, discharge, etc. It certainly cannot mean, as contended for by relator, that an employee under the old charter when the new charter is effected has a vested right in such position or is in any different position from any new employee under the new charter. Therefore we have no difficulty in determining that the new charter and the ordinances thereunder apply, exactly to this relator as to anyone else appointed since the new city government became effective. Now, was he legislated out of his position, or was he discharged? Without needlessly going over the history of the city legislation again but to clarify, relator was in the maintenance and cleaning section of the department of streets and sewers as clerk grade 2, designated CC II, The ordinance under which he held this position was ordi *719 nance No. 30191, drawn in 1918. This ordinance authorized the department head to make this employment and fixed the salaries of this and other employees in that department. In November, 1923, relator was sent over to the City Hall in the permit section. Subsequently, ordinance No. 33151 was passed and became effective June 16, 1924. This was a repealing ordinance, repealing ordinance No. 30191. Ilnder the old ordinance under the new charter, then, the employment was regular as clerk CC II. The new ordinance omitted this service entirely and made no provision for clerk CC II in either the maintenance and cleaning section or in the permit section of the department of streets and sewers. It reduced the number of employees; others were selected to fill these newly-designated positions under the last ordinance, and this left relator a clerk CC II without any employment, and accordingly he was legislated out of his position, as we understand it. There are many cases which hold that an employee of a municipal corporation has no vested right in his employment. The municipality may abolish it altogether or change the duties, term or tenure of it without violating any right of the employee, and this may be done by ordinance if it does not contravene the organic law, or, as under the St. Louis charter powers, also does not contravene the State Constitution or statute law. [Primm v. Carondelet, 23 Mo. 22; Magner v. St. Louis, 179 Mo. 495, 78 S. W. 782; State ex rel. v. Davis, 44 Mo. 129; Wilcox v. Rodman, 46 Mo. 322; Gregory v. Kansas City, 244 Mo. 523, 149 S. W. 466.] The repeal of an ordinance creating an office or position abrogates it absolutely unless perpetuated by some other provision. [Gregory v. Kansas City, supra; Bennett v. Longview, 268 S. W. 786, l. c. 788.] Nowhere does the charter confer upon relator the right to maintain his position as clerk grade 2 (CC II) until discharged for cause. We must take judicial notice of the charter of the city of St. Louis which is the organic law of the city. This is so under the State Constitution, article 9, section 21. [See City of St. Louis v. Lang, 131 Mo. 412, 33 S. W. 54.] Now, as to the motive and intent of the Board of Aldermen in passing this new ordinance and abolishing an office or employment, same cannot be inquired into by the courts. If the ordinance was authorized by the charter and the aldermen acted within ■ their limits of discretion under the law, the courts will not review its proceeding. This is the law generally throughout the States. We are of the opinion, in view of the charter and ordinances of the city above referred to, that the employment of this relator was abolished on June 16, 1924, and that such employment ceased at that time and no further rights to compel reinstatement or right to salary was left to the relator under the theory of his petition. The fact that another man was *720 placed in his position, or that the abolition of the position was for the sole purpose of making room for someone else does not vitiate the action of the city in passing the new or reorganization ordinance. That portion of relator’s brief which proceeds upon the theory that there are really two claimants to this employment, relator himself and Ford who was given this appointment, need not be discussed, for the right to a municipal office or employment as between two claimants cannot be determined by mandamus. [St. Louis v. Sparks, 10 Mo. 117.] 1 The very recent case of State ex rel. Kansas City v. Coon, No. 27366, has been submitted to us on manuscript. This is a ease iii the Supreme Court of our State in Bane. Since a motion for rehearing in that ease has been sustained, we cannot refer to it as authoritative. A companion case, by same style, No. 27367, has been finally determined by that court and we have resorted to that opinion for light. That ease decides, among other questions, that under the Kansas City charter a notice of discharge is a prerequisite to discharge, and that the payment of salary to the de facto officer , if pleaded, is a defense of the claim of the de jure officer when reinstated, and- further involves the application of the remedy of prohibition in such cases. None of these questions are before us. We have confidently reached the conclusion that it was within the power of the city to reorganize the department employees and their duties. In fact, ordinance No. 33151 changed the duties as well as the salaries and the symbolical designations of the positions involved, and so relator was duly legislated out of his employment- and he has no right to the claim made in this proceeding." This being our view, the judgment of the lower court should be reversed outright. It is so ordered. Becker and Nipper, JJ., concur.