State ex rel. Kuhn v. Geiger

133 S.W. 123, 152 Mo. App. 202, 1911 Mo. App. LEXIS 83

• Court: Missouri Court of Appeals
• Decided: January 2, 1911
• Status: Published

Opinion

ELLISON, J.

Relator was formerly superintendent of state hospital No. 2, located at St. Joseph, Missouri, and the respondents are the board of managers for such hospital. After the end of relator’s services he demanded warrants for his last month’s servicés as superintendent (being the month of July, 1910) in the sum of $250 and for the living expenses of himself and his family for said month as the same may he ascertained hy the board. This demand was refused hy the hoard and he thereupon instituted this proceeding hy mandamus to compel them to do so. The trial court made the alternative writ absolute, and respondents appealed to this court.

The answer made hy respondents to the alternative writ was that written charges had been made against the relator as superintendent, on the 6th of May, 1909, to the effect that he was incompetent and had neglected his duties, rendering him unfit to act as superintendent. That relator was duly notified of said charges on the 15th day of May, and a hearing thereof set for the 3d of June thereafter. That on said day relator appeared and the hearing was begun and continued from day to day until the 5th day of June, when all the evidence had been heard. That thereupon, at the close of the evidence, the respondents, as such hoard, took its action and findings in regard to the charges, under advisement, and thereafter, on the 1st of July, met and made its findings sustaining said charges, and had them entered of record, removing and discharging relator from the office of superintendent, and made said order of discharge effective from and after the first of July aforesaid; and that therefore he was not entitled to a salary and living expenses for the month of July as demanded by him.

In some important particulars the facts did not sustain the allegations of the return. It appears in evidence that written charges were presented to the board against the management of the hospital, which were understood to apply principally to the superintendent and he was notified and appeared before the board and entered upon his defense, the hearing beginning on the 3d of June and ending on the 5th, thereafter, when the hoard took the matter under advisement until the 22d of Jure, when it made its findings on said charges, in which and by which relator was not discharged from his office. These findings were signed by the majority of the members of the board and were entered of record, and the board adjourned.

The findings were in many respects indefinite and only sustained the charges in a qualified way. They showed relator to be blameless in many matters investigated; so that it may be fairly said they contained only a reflection on his management of the institution. They contained this paragraph: “There has been some laxness on the part of the superintendent, an evidence of his lack of intimate knowledge of the detailed workings of the institution, that warrants criticism.” It is then stated in the finding that “for the good of the institution and for the betterment of the service, we recommend the removal of the supervisor and supervisor ess.”

The findings also stated that the evidence had been so damaging to four other employees that their “dismissal” was recommended. But they contained no suggestion of removing or discharging relator; on the contrary the recommendation that he discharge these persons was, in effect, a statement that he would remain in office. lie, however, took offense at the criticism made by the board and afterwards, on the 26th of June, addressed a letter to them in which he defended his care and effort at the hospital, resented the criticism made of him, and refused to discharge the supervisors as recommended by the board, saying that the law intrusted such matters to his own discretion, but stated the others referred to had resigned.

This letter incensed a majority of the board of managers and they conferred together on the evening of June 30th and three of them signed a call for a meeting of the board for the next day (July 1st), for the purpose of dismissing the relator. The meeting was held the next day, attended by a majority, and relator was discharged.

Relator had no notice of such meeting until after the proceedings against him had been adopted, when he was notified that he had been discharged.

Afterwards the members of the board became aware that the legality of the discharge of relator was being questioned on the ground that no charges had been preferred against him since the findings made as the result of the trial and he had not been notified of the meeting of July 1st. Another meeting was'therefore had on the 5th of August, and one of the members of the board “as a citizen of Buchanan county, Missouri,” filed written charges against relator, in which he was referred to as then the superintendent. A day Was set for trial and written notice of the charges and time and place of trial was given to him. It seems that no formal evidence was heard at this trial and what was termed evidence consisted of what the members of the board stated in the meeting. At any rate, relator’s resignation was handed to the president of the board before it met, and after a discussion of the charges by the board," it was accepted. The acceptance was recorded in the record, with a statement that the board was of the opinion that relator had been discharged on July 1st, yet “in order to avoid any further controversy in said matter, it is ordered that said resignation of W. F. Kuhn be and the same is hereby and now accepted.”

The foregoing statement of facts shows beyond any controversy that the relator was discharged as superintendent on July 1st, without charges being preferred and without notice or trial. There is some effort, made in argument to show that the board was, on that date, still considering the charges made and evidence heard on June 3d, 4th, and 5th, on which a finding was made and entered of record on Jiine 22d, as we have already stated. But the position taken is wholly unwarranted by the record, which clearly discloses the action of the board from first to last.

When charges were preferred in May and relator was notified thereof and appeared and regular trial was had by the hearing of evidence from a number of witnesses as well as the parties concerned, with the aid of counsel, and a finding made on those charges, together with the conclusion thereon, all duly entered of record, and the board adjourned, the matter was at an end. The subject-matter of the trial became adjudicated and the charges were no more subject to be reopened and reconsidered without notice to the superintendent, than they could have been originally without notice to him. His discharge on July 1st was undoubtedly brought about* by matters transpiring after the findings made on the trial, especially by his letter to the board which they regarded as offensive. But the letter contained statements of fact and law which demanded investigation, and on which he had a right to be heard in connection with any matter transpiring after the trial.

That a removal of a superintendent of.one of the state hospitals cannot be legally had without charges preferred against him and a hearing had on due notice to him, cannot be questioned. The statute (sec. 4850, R. S. 1899, sec. 1387, R. S. 1909) is that: “The managers may, at their pleasure, .remove from office any officer of the institution save the superintendent; and they may remove, the superintendent for incompetency, willful neglect or refusal to discharge any of his duties, or for any other misconduct which might render it unfit for him to remain in office.” It will be noticed that while the board may, “at their pleasure,” remove other officers than the superintendent, as to him they can only remove for cause. This implies that some cause of removal shall be embodied in a charge against him and a proper hearing had after due notice to him. [State ex rel. v. Knott, 207 Mo. 167; State ex rel. v. City of St. Louis, 90 Mo. 19; State ex rel. v. Walbridge, 119 Mo. 383.]

That the board came to recognize this as the law-governing its relations with the superintendent, is shown by its entertaining charges made after July 1st and setting them for trial and directing that notice be given him.

Since, for the reasons we have stated, the action taken by the board on July 1st was void, it follows that the judgment of the trial court must be affirmed.

The other judges concur.