Gleason v. Public Safety Commission

Supreme Court of Missouri

Gleason v. Public Safety Commission

601 S.W.2d 4, 1980 Mo. LEXIS 305

CourtSupreme Court of Missouri

DecidedJune 10, 1980

DocketNo. 61314

StatusPublished

This text of 601 S.W.2d 4 (Gleason v. Public Safety Commission) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gleason v. Public Safety Commission, 601 S.W.2d 4, 1980 Mo. LEXIS 305 (Mo. 1980).

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PER CURIAM:

Appellant, William Gleason, was a lieutenant on the police force of the City of Des Peres, Missouri. On April 4, 1973, he was charged by the director of respondent Public Safety Commission, City of Des Peres, with conduct not becoming an officer, and other general inefficiencies. As a result of these charges, appellant was reduced in rank from Lieutenant to Patrolman with commensurate pay reduction.

Appellant appealed the director’s decision to the Board of the Public Safety Commission. A hearing was held May 10, 1973. The Board rendered a decision to the Des Peres Board of Aldermen by memorandum dated May 14, 1973. Appellant’s attorney received a copy of the decision by mail on May 16, 1973.

On June 15,1973, appellant filed his petition for review of the decision with the Circuit Court of St. Louis County pursuant to provisions of the Administrative Procedure and Review Act, § 536.110, RSMo 1978, and Rule 100.04(a). Respondent moved to dismiss on grounds that appellant’s petition was not filed within 30 days of notice of the agency’s final decision. At that time there was no evidence of when the decision of the Board was mailed or delivered to appellant, and respondent’s motion was denied without prejudice. Thereafter, the director of the Public Service Commission submitted an affidavit stating that the decision was mailed on May 14, 1973. Appellant’s attorney submitted a counter-affidavit swearing that the Board’s decision was delivered to him by mail on May 16, 1973. Based on these affidavits, the trial court dismissed appellant’s action for failure to file a timely “notice of appeal”. The Missouri Court of Appeals, Eastern District, affirmed the dismissal.

This Court granted transfer to interpret the phrase “mailing or delivery” contained in § 536.110 and Rule 100.04(a), and to determine the effect, if any, of Rule 44.-01(e). We decide the case the same as on original appeal. Mo.Const. art. V, § 10.

[5]*5In R. B. Industries, Inc. v. Goldberg, 601 S.W.2d 5 (Mo. banc 1980), we held that where service of an agency’s final decision is by mailing it, service is complete upon the mailing, and that proceedings for review may not be instituted by filing a petition for review more than 30 days after the date of mailing.

The judgment of the trial court is affirmed.

DONNELLY, SEILER, WELLIVER, MORGAN and HIGGINS, JJ., concur. BARDGETT, C. J., dissents in separate dissenting opinion filed. RENDLEN, J., dissents in separate dissenting opinion filed.

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PER CURIAM:

Appellant, William Gleason, was a lieutenant on the police force of the City of Des Peres, Missouri. On April 4, 1973, he was charged by the director of respondent Public Safety Commission, City of Des Peres, with conduct not becoming an officer, and other general inefficiencies. As a result of these charges, appellant was reduced in rank from Lieutenant to Patrolman with commensurate pay reduction.

Appellant appealed the director’s decision to the Board of the Public Safety Commission. A hearing was held May 10, 1973. The Board rendered a decision to the Des Peres Board of Aldermen by memorandum dated May 14, 1973. Appellant’s attorney received a copy of the decision by mail on May 16, 1973.

On June 15,1973, appellant filed his petition for review of the decision with the Circuit Court of St. Louis County pursuant to provisions of the Administrative Procedure and Review Act, § 536.110, RSMo 1978, and Rule 100.04(a). Respondent moved to dismiss on grounds that appellant’s petition was not filed within 30 days of notice of the agency’s final decision. At that time there was no evidence of when the decision of the Board was mailed or delivered to appellant, and respondent’s motion was denied without prejudice. Thereafter, the director of the Public Service Commission submitted an affidavit stating that the decision was mailed on May 14, 1973. Appellant’s attorney submitted a counter-affidavit swearing that the Board’s decision was delivered to him by mail on May 16, 1973. Based on these affidavits, the trial court dismissed appellant’s action for failure to file a timely “notice of appeal”. The Missouri Court of Appeals, Eastern District, affirmed the dismissal.

This Court granted transfer to interpret the phrase “mailing or delivery” contained in § 536.110 and Rule 100.04(a), and to determine the effect, if any, of Rule 44.-01(e). We decide the case the same as on original appeal. Mo.Const. art. V, § 10.

[5]*5In R. B. Industries, Inc. v. Goldberg, 601 S.W.2d 5 (Mo. banc 1980), we held that where service of an agency’s final decision is by mailing it, service is complete upon the mailing, and that proceedings for review may not be instituted by filing a petition for review more than 30 days after the date of mailing.

The judgment of the trial court is affirmed.

DONNELLY, SEILER, WELLIVER, MORGAN and HIGGINS, JJ., concur. BARDGETT, C. J., dissents in separate dissenting opinion filed. RENDLEN, J., dissents in separate dissenting opinion filed.

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