STATE EX REL. KANSAS CITY v. TRIMBLE

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No. 29012.

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GANTT, J.

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THE STATE EX REL. KANSAS CITY v. FRANCIS H. TRIMBLE ET AL., Judges of Kansas City Court of Appeals.

John T. Barker, Marcy K. Brown, Jr., and William H. Allen for relator.

(1) The record of the Court of Appeals being made up of and including the record of the circuit court, when the former was quashed the latter also, by operation of law and merger in the Court of Appeals' record, was also quashed and the case has finally ended. The Court of Appeals therefore acted illegally and in excess of its jurisdiction in ordering the circuit court to render a judgment in each case, no record in either court remaining upon which a judgment could be rendered. (2) The Court of Appeals acted illegally and beyond its jurisdiction in ordering the circuit court to grant peremptory writs against relator after its record and opinion were quashed by this court, it having no records before it to justify such orders and judgments. State ex rel. Fogel Const. Co. v. Trimble, 310 Mo. 248; State ex rel. Mo. Gas Elec. Co. v. Trimble, 307 Mo. 536; State ex rel. Ins. Co. v. Trimble, 310 Mo. 446; State ex rel. Ins. Co. v. Trimble, 306 Mo. 295; State ex rel. Ry. Co. v. Trimble, 302 Mo. 8; State ex rel. Fabrico v. Trimble, 309 Mo. 415; State ex rel. Blythe v. Trimble, 258 S.W. 1013; State ex rel. Natl. Council v. Trimble, 239 S.W. 469; State ex rel. Light Power Co. v. Trimble, 315 Mo. 32; State ex rel. Auto Ins. Co. v. Trimble, 249 S.W. 902; State ex rel. v. Ellison, 256 Mo. 667; Iba v. Railroad, 182 S.W. 135. (3) The Court of Appeals acted in excess of its jurisdiction in failing and refusing to set this case down upon its docket for re-argument and re-decision upon the merits, after its original opinion had been quashed by this court. (4) The Court of Appeals exceeded its jurisdiction, in violation of Sec. 15, Art. 6, Mo. Constitution, and Sec. 1519, R.S. 1919, in its orders and judgments, in not writing complete opinions. State ex rel. v. Robertson, 264 Mo. 661; State ex rel. v. Broaddus, 245 Mo. 123, 238 Mo. 189. (5) The order and judgment of the Court of Appeals order the substitution of new officials, successors in office to the prior defendants, and authorizes the rendition of a final judgment against them without notice, trial or hearing. Such order and judgment are therefore in conflict with prior controlling rulings of this court holding that before such substitution can be had, notice, trial and hearing to the new defendants must be given. State ex rel. Priddy v. Gibson, 187 Mo. 554; State ex rel. Mt. Pleasant Township v. Hall, 262 S.W. 720. (6) The order and judgment of the Court of Appeals hold that the removal of a public officer is not a judicial act and that mandamus is the proper remedy in the case of such wrongful removal. This conflicts with prior decisions of this court holding that removal of a public officer is a judicial act and certiorari and not mandamus is the proper remedy in such case. St. Louis County v. Sparks, 10 Mo. 117; Winston v. Mosly, Auditor, 35 Mo. 146; State ex rel. v. Thompson, 36 Mo. 71; State ex rel. v. City, 90 Mo. 19; Banker v. Faulhaber, 94 Mo. 430; State ex rel. v. Slover, 113 Mo. 202; State ex rel. v. Wallbridge, 119 Mo. 383; State ex rel. v. Harrison, 141 Mo. 12; State ex rel. v. Walbridge, 153 Mo. 194; State ex rel. v. Maroney, 191 Mo. 531; State ex rel. v. Knott, 207 Mo. 167; State ex rel. v. Miles, 210 Mo. 127; State ex rel. v. Moorehead, 256 Mo. 683; State ex rel. v. Caldwell, 310 Mo. 397. (7) The record in these cases shows that when each employee was discharged, another was appointed to the place, rendered the services and was paid therefor by Kansas City. The order and judgment of the Court of Appeals hold that under such circumstances Kansas City may be compelled to pay the discharged employee. Such holding is in conflict with prior controlling rulings of this court holding payment of the de facto officer is a complete defense. State ex rel. Kansas City v. Coon, 296 S.W. 103; Hunter v. Chandler, 45 Mo. 457; State ex rel. Vail v. Clark, 52 Mo. 512; State ex rel. Abington v. Reynolds, 280 Mo. 466. (8) The record shows that when each employee was discharged another was appointed to such position and actually filled the same. The order and judgment of the Court of Appeals hold that under such circumstances mandamus is the proper remedy. Such holding is in conflict with prior controlling rulings of this court holding that quo warranto is the proper remedy in order that the incumbent may have his day in court. St. Louis County v. Sparks, 10 Mo. 117; State ex rel. v. Thompson, 36 Mo. 70; State ex rel. v. Rodman, 43 Mo. 256; State ex rel. v. Cannon v. May, 106 Mo. 488; Winston v. Mosly, 35 Mo. 146. John I. Williamson, Darius A. Brown and Prescott Brown for respondents.

(1) The city's Point 3 is merely an assertion that the Court of Appeals did not set these cases for re-argument "upon the merits" and thereby erred. The Court of Appeals says that "when the case again reached this court it was set down for re-argument and was again submitted to this court for consideration." Which statement will this court accept, that of the city or that of the Court of Appeals? But the city says it did not brief or argue these cases "on the merits." Well, if it wanted to brief and argue these cases "on the merits," why did it not do so? Nobody stopped it. On the contrary, it was invited to do so. The Court of Appeals, in a special written notice, informed both sides that it "desires the attorneys to present to the court at that time their views as to disposition this court shall make of these cases." The court did not limit the hearing in any particular. The door was wide open. The city deliberately chose not to enter into a discussion "on the merits." It seems to be "laying it on a bit thick," as the English say, for the city to contend that these opinions must be quashed by certiorari because the city chose not to discuss the merits when it had an express invitation from the court — an unusual courtesy — to discuss anything whatever relating to what "disposition this court shall make of these cases." There is sound sense in the fireside saying that: "He that will not when he may, when he would he shall have Nay." Anyhow, there is no "conflict of opinion" on this matter. (2) The city's fourth point is that the opinion must be quashed because the Court of Appeals did not write what the city chooses to call a "complete opinion." This seems rather an odd reason for granting a writ of certiorari. There is nowhere any command that any court shall write a "complete opinion." The Constitution simply requires that the opinions "shall be in writing." The statute, Sec. 1518, R.S. 1919, is to the same effect, and Sec. 1519 only requires that the opinion shall contain "a sufficient statement of the case, so that it may be understood without reference to the record and proceedings in the same." What power has the legislative department to tell the judicial department what it shall put into its opinions? Turner v. Anderson, 236 Mo. 523. But, in any event, how is that question involved in cases which hinge solely on conflict of decisions as these certiorari cases do? The fact is, of course, that the Court of Appeals followed the ancient and usual practice of writing a principal opinion in the principal case and four shorter opinions in the other four cases, just as this court did in these identical cases when they were here before on certiorari. State v. Trimble, 298 S.W. 833-5-6-7. Furthermore, even if the Court of Appeals had not written a "complete opinion" in each case, what sense or justice would there be in depriving the litigants of a judgment in their favor merely because the court had failed to do its duty in giving its reasons for its judgments? How could certiorari be invoked in such a case anyhow? (3) The city's fifth point is, in substance, that when the Court of Appeals ordered that the successors in office of certain former defendants should be substituted in their stead, it was in conflict with the Priddy case, 187 Mo. l.c. 554, and the Mt. Pleasant case, 262 S.W. 720. Observe that it is not claimed that the officers so substituted were not, in fact, the successors in office of the former defendants. That they were so is undisputed. Of course, the true rule is that, in mandamus, when the duty to be performed is an official duty and the defendant is sued in his official capacity then the successor may be substituted and the action proceeds as if no change in the personnel had occurred. Under the city's theory, if any one of the defendants for any reason should vacate his office, no matter at what stage of the proceedings, then the whole proceeding fails and it is necessary to go back to the beginning and do it all over again. It is sometimes necessary to mandamus a body composed of a large number of persons, such as a city council. If the whole proceeding becomes a nullity by the slightest change in personnel, the law becomes a farce, and the litigation becomes practically interminable. This court has itself done exactly what the Court of Appeals did in these cases. State ex rel. Chapman v. Walbridge, 153 Mo. 194. See also State ex rel. v. Trimble, 298 S.W. 835; Thompson v. United States, 103 U.S. 483; County Commrs. v. Sellew, 99 U.S. 624; State ex rel. v. Wurdeman, 183 Mo. App. 42; 26 Cyc. 422; 18 R.C.L. 338, sec. 289; 13 Ency. Pl. Pr. 663, 756; Warner Valley Co. v. Smith, 165 U.S. 33; Murphy v. Utter, 186 U.S. 102; Bunch v. United States, 252 F. 680; Hicks v. Cleveland, 106 F. 466. (4) The city's further point is that mandamus is not the proper remedy; that the Court of Appeals in its opinion held to the contrary, and that this holding is in conflict with decisions of this court. The latest controlling opinions of this court at the time the Court of Appeals opinion was written expressly repeated and emphatically held that mandamus was the proper remedy. State ex rel. Kansas City v. Trimble, 298 S.W. 834; State ex rel. Kansas City v. Coon, 296 S.W. 95; State ex rel. Stomp v. Kansas City, 281 S.W. 426; State ex rel. Prior v. Kansas City, 261 S.W. 112; State ex rel. Hamilton v. Kansas City, 259 S.W. 1052. (5) The city's further point is that the opinion of the Court of Appeals holds that payment to a de facto officer is a defense and that this holding conflicts with the latest controlling decisions of this court. This is a certiorari case. That being true, the answers to this contention are numerous. (a) It affirmatively appears from the Court of Appeals' opinion that this issue was not in this case. (b) The Court of Appeals did not rule on this question in either opinion. (c) There was no evidence to support such a defense. (d) Even if the Court of Appeals had ruled upon the defense of payment, its opinion would still not be in conflict with any opinion of this court on that question in existence when the second opinion of the Court of Appeals was written. The city cites one case, and but one, with which, as the city claims, the second opinion of the Court of Appeals conflicts. That case is State ex rel. Kansas City v. Coon, 296 S.W. 102. That case was a suit in prohibition.

1. CERTIORARI: To Court of Appeals: Quashing Record: Meaning of Order. In a certiorari to a court of appeals based on conflicts of decisions, an order of this court that "on account of the conflicts above noted, respondent's opinion and record in the case brought here for review are quashed" does not mean that the entire record, from the filing of the petition in the circuit court to and including the opinion of the court of appeals, was quashed. The only record subject to review by this court was the opinion and judgment of the court of appeals, and the order meant that it was the record of that court, that is, its opinion, judgment and the record thereof made by that court, that was quashed.

2. ____: ____: Record Quashed: Further Argument: Submission. Attorneys do not have the right to argue a case in a court of appeals after its opinion has been quashed by this court upon certiorari, unless the prior order of submission is set aside, and the case set down for reargument. After a case is argued and submitted the time for argument has passed unless the order of submission is set aside.

3. ____: ____: ____: Adoption of Former Opinion. After the record of a court of appeals has been quashed by this court upon certiorari, a later opinion of that court adopting its former opinion "in so far as that opinion is not inconsistent with the decision of the Supreme Court in the certiorari case" is an unusual method of delivery and difficult to harmonize with the Constitution and statutes, but is not in conflict with any previous decision of this court, and for that reason cannot be quashed upon a second certiorari.

4. ____: ____: Question Decided by Former Opinion: Admission. A contention that a question was decided by this court on a former certiorari to a court of appeals in the same case cannot be maintained where the opinion of this court expressly stated that the opinion of the court of appeals did not disclose that such question was considered or raised. And relator admits that such question was not then interposed by undertaking to put the question into this second certiorari by quoting from the testimony of witnesses.

5. ____: ____: Salary of Discharged Officer: Mandamus: Conflict. To conflict with decisions of this court an opinion of a court of appeals must contravene previous decisions of this court, not later ones. A holding by the Court of Appeals that mandamus can be maintained by a discharged civil-service employee to compel his restoration and to recover the salary lost, and a ruling that he is entitled to the salary from the date of his discharge to the date of the adoption by the city of its new charter, are not in conflict with subsequent decisions of this court holding that mandamus is not the remedy, or with other later decisions holding that such discharged employee is entitled to the salary from the date of his discharge to the date of the adoption of the new charter, but not afterwards; but such opinion of the Court of Appeals followed many decisions of the Supreme Court previously rendered.

6. MANDAMUS: Against Official Successors. Where mandamus is brought against a city and its officers to compel the payment of salary to a wrongly discharged city employee, and is allowed in the appellate court, but before the decision is rendered, the officers have been succeeded by others, the appellate court may by its judgment direct the trial court to substitute their successors as respondents and to command such successors to approve and pay the warrant, where the city is the real party in interest and the substituted officers have no real interest in the result of the suit on the merits.

Corpus Juris-Cyc. References: Certiorari, 11 C.J., Section 355, p. 200, n. 31; Section 383, p. 212, n. 70. Courts, 15 C.J., Section 511, p. 1079, n. 42. Municipal Corporations, 43 C.J., Section 1672, p. 912, n. 97.

GANTT, J.

Certiorari to quash the opinion of the Kansas City Court of Appeals in State ex rel. Lindsay v. Kansas City et al., No. 15567.

The facts are as follows: Lindsay claims to have been illegally discharged from an official position in the treasurer's office of Kansas City, Missouri. He instituted a proceeding in mandamus in the circuit court to compel restoration to the position and for salary during ouster. The circuit court rendered judgment restoring him to the position and for said salary. Defendants appealed to the Kansas City Court of Appeals, where the judgment was affirmed. In response to our writ, a transcript of the record in said case was certified to this court. We reviewed and quashed the opinion. In doing so, we said: "On account of the conflicts above noted, respondents' opinion and record in the case brought here for review are quashed." [State ex rel. Kansas City v. Trimble, 317 Mo. 1208, 298 S.W. 833.]

I. Relator claims that by the statement above quoted we quashed the whole of the record from the filing of the petition in the circuit court to and including the opinion of the Court of Appeals. The words used do not justify the Quashal contention. The only record subject to review by this of Record: court was the opinion and judgment of the Court of Meaning. Appeals. Therefore, by the statement above quoted, we only quashed the record we had authority to review — the opinion, judgment and record thereof made by said court.

II. Relator claims it was denied the right to argue the case after we had quashed the opinion. The quashing of an opinion of a Court of Appeals does not call for a retrial of the case in said court. Such action by this court leaves the case under submission in the Court of Appeals. Relator argued the case Further before submission, and after submission the time for Argument. argument had passed. Of course, if a submission is set aside, the parties may be given time for re-argument.

We assume the submission was set aside, for in the opinion under review it is said: "When the case again reached this court it was set down for re-argument and was again submitted to this court for consideration." We think this statement is conclusive. In addition, no question of conflict is tendered, and the complaint is dismissed.

III. In the opinion under review the Court of Appeals adopted its former opinion "insofar as that opinion is not inconsistent with the decision of the Supreme Court in the Adopting certiorari case." Relator complains of this. It is an Former unusual method of delivery, and it would be difficult Opinion. to harmonize such a method with the Constitution and statutes. [Sec. 15, Art. VI, Mo. Const.; Secs. 1518, 1519, R.S. 1919.] However, absent a tender of conflict, this complaint is also dismissed.

IV. Relator insists the Court of Appeals ruled that a de jure officer illegally discharged may recover salary from the city during ouster, although said salary had been paid by Decision on the city in good faith to a de facto officer. It Former also insists that such ruling is in conflict with Certiorari. decisions of this court. The identical contention was made on our review of the former opinion of the Court of Appeals. We then held that said opinion did not disclose such ruling. [State ex rel. Kansas City v. Trimble, 317 Mo. l.c. 1208, 298 S.W. 835.] No such ruling is made in the opinion under review. Relator undertakes to put the question in this proceeding by quoting from the testimony of witnesses. This is an admission that the opinion does not indicate that the defense was interposed. We look to the opinion for the facts. Relator cites State ex rel. Kansas City v. Coon, 296 S.W. l.c. 102. On motion for rehearing in that case, 316 Mo. l.c. 552, RAGLAND, J., said:

"Relator insists that it is entitled to a rehearing for the reason, among others, that our original opinion herein is contrary to the overwhelming weight of authority to the effect that payment to a de facto officer of the salary incident to the office is a complete defense to an application of the de jure officer, upon his restoration to office, for mandamus to compel the payment of the salary to him. The efficacy of such defense was not considered, because not raised by either pleading or brief on behalf of relator."

Thus it appears the defense was not interposed, and the discussion of the question was obiter. The contention is overruled.

V. The Court of Appeals, after writing at length on the effect of our former opinion on the record in the case, said: "We will reverse the judgment and remand the case with directions to the trial court to render judgment in favor of relator for his salary from the date of his discharge to February 24, 1925."

Relator contends that this action of the court is in conflict with decisions of this court holding that mandamus is not the proper remedy, citing State ex rel. Gallagher v. Mandamus: Kansas City, 319 Mo. 705, 7 S.W.2d 367; State Later and Prior ex rel. Goldman v. Kansas City, 319 Mo. 1078, 8 Decisions. S.W.2d 620; Kitheart v. Kansas City, 8 S.W.2d 895. The opinions in those cases were delivered after the delivery of the opinion under review, therefore there can be no conflict. The opinion under review followed the decisions of this court in the following cases: State ex rel. Kansas City v. Trimble, 317 Mo. 1208, 298 S.W. 833; State ex rel. Stomp v. Kansas City, 313 Mo. 352, 281 S.W. 426; State ex rel. Prior v. Kansas City, 261 S.W. 112; State ex rel. Hamilton v. Kansas City, 303 Mo. 50, 259 S.W. 1045, l.c. 1052; State ex rel. Kansas City v. Coon, 316 Mo. 524, 296 S.W. 90, l.c. 95.

While we held in quashing the former opinion of the Court of Appeals that plaintiff was not entitled to restoration to office or to salary after the effective date of the Charter of 1925, we also held, in effect, that he was entitled to salary from the date of his discharge to the date of the adoption of the charter. It follows that the Court of Appeals in directing a verdict for plaintiff as above indicated was within its jurisdiction and not in conflict with the last previous decision of this court on the question. The contention is overruled.

VI. The court further said in the opinion under review:

"However, as it appears that the personnel of the officers of the city against whom this writ of mandamus was issued, has changed, the trial court is directed to substitute as parties respondent the present officers of the respondent Mandamus: Kansas City who have succeeded the officials who To Successors were in office when this suit was instituted, and in Office. the court is directed to award a peremptory writ of mandamus against the new respondents commanding the respondent Director of Finance of Kansas City to draw and sign a warrant on the respondent treasurer of respondent Kansas City, in favor of relator, for the sum of money found to be due relator and to deliver such warrant to him, and commanding the treasurer of said respondent city to pay the amount to relator when said warrant is presented by him for payment."

Relator contends this action of the court is in conflict with State ex rel. Mt. Pleasant Township v. Hall, 304 Mo. 83, 262 S.W. 720, and State ex rel. Priddy v. Gibson, 187 Mo. 536, l.c. 553, 86 S.W. 177.

The Mt. Pleasant case was an action against the clerk and judges of the county court to compel the extension of a special road-and-bridge tax levied by a township board. Pending a disposition of the case, the terms of office of these officials expired. They asked that the action be abated as to them. This was done. There was no suggestion of substitution, and the question was not considered.

The Priddy case was a mandamus proceeding to compel a circuit judge to sign a bill of exceptions. Pending a disposition of the case his official term expired. It was suggested that if the writ was granted it should go against his successor. His successor was not a party to the proceeding, and we decline to determine the question. That suit was the assertion of a right against an individual. Under the statute, the signing of a bill of exceptions by a succeeding judge might involve the exercise of discretion.

The suit resulting in the present review was the assertion of a right against a city. Indeed, Kansas City, as the real party in interest, is the relator herein and was the relator in the former certiorari proceeding. The substituted officials have no individual interest in the result of the suit on the merits or in the result of this review. There is no conflict, and the ruling of the Court of Appeals on the question is in harmony with the weight of authority. [38 C.J. pp. 858, 859.]

It follows our writ should be quashed. It is so ordered. All concur, except Walker, J., who concurs in result.

THE STATE EX REL. KANSAS CITY v. FRANCIS H. TRIMBLE ET AL., Judges of Kansas City Court of Appeals.

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