State ex rel. Murphy v. Burney

191 S.W. 981, 269 Mo. 602, 1917 Mo. LEXIS 124

• Court: Supreme Court of Missouri
• Decided: January 29, 1917
• Status: Published

Opinion

FARIS, J.

This is an original proceeding in prohibition against respondent .Clarence A. Burney, as one of the judges of the circuit court of Jackson County, to prohibit him from taking further cognizance of certain suits by injunction brought by respondents Hiram W. Hammil and R. L. J ames, the object of which latter proceedings was to enjoin relator (who is one of the Police Commissioners of Kansas City) from sitting in the hearing of certain charges pending against said Hammil and said James before said commissioners.

■ As forecast above, respondents Hammil and James are members of the police force of Kansas City; Hammil being chief of police and James a captain of police therein. Prior to the commencement before respondent Burney of the injunction proceedings, certain charges were caused to be filed by relator' David A. Murphy in his capacity as a member of the Board of Police Commissioners of Kansas City, against respondents Plammil and James, which charges involved the official conduct of said last-named respondents as chief of police and captain, respectively. While separate actions were brought by Hammil and James, seeking to enjoin relator as aforesaid, it is not necessary to cumber the record with the allegations in both of these injunction proceedings. That brought by respondent Hammil, we take it, is a fair type of both, and it contains, after the formal allegations of the official character of plaintiff therein as chief of police and defendant as commissioner of police, respectively, the below allegations, to-wit:

‘ ‘ Defendant has caused to be prepared and filed with the Board of Police Commissioners aforesaid, complaints against plaintiff, charging him with conduct unbecoming an officer of the police department, and has caused said complaints to be set for hearing before said Board of Police Commissioners at two o’clock on the afternoon of Wednesday, December 6, 1916; and defendant threatens to and will, unless restrained by this court, take part as a member of said Board of Police Commissioners in hearing and deciding said complaint, at such time as they may be called up for hearing before said board.

“Some weeks ago defendant wrongfully, fraudulently, oppressively and wickedly conspired and confederated with one John P. Mullane and others, all of whose names he is now unable to state, to cause the dismissal and removal of plaintiff from his said position and office as chief of police of said police department, and as part and parcel of said conspiracy said complaints were prepared by said Murphy in his own handwriting, but said Murphy fraudulently, wickedly and oppressively used his position as said commissioner to coerce and force a probationary patrolman of said city to sign charges to be preferred against plaintiff, so that the true attitude and connection of defendant therewith might be concealed.”

The actions for injunctions filed respectively by respondents Hammil and James coming on to be heard before Judge Burney on December 6,1916, he issued therein a temporary restraining order and fixed December 9, 1916, for hearing the application for the issuance of a temporary injunction. Pending the hearing upon such injunction relator presented his petition to this court and we issued therein a provisional writ of prohibition, directed to Judge Burney, prohibiting him, till our further order, from hearing or proceeding further in said injunction suits. Thereafter Judge Burney filed herein his return; following which, relator filed a motion for judgment on the pleadings.

The case has been briefed and being a matter wherein both parties deem that the public interests require a speedy determination, it was submitted to us without argument ; an order entered herein making our provisional writ absolute, and the matter of filing a written opinion deferred till a more convenient season.

The sole proposition involved is whether relator Murphy, who caused to be filed the charges against respondents Hammil and James, is for that he caused the filing of said charges, disqualified from sitting as one of the Police Commissioners of Kansas City in the trial of said latter respondents upon such charges; relator taking the position that he is not so disqualified and respondents taking the position that he is disqualified. If he is disqualified then our preliminary writ herein should be quashed; if he is not, then such writ must be made absolute.

The Board of Police Commissioners of Kansas City consists of two members (who are appointed by the Grovemor) and of the mayor of that city, who is a member ex officio of such board. It thus appears as a matter of interest, without/perhaps affecting the point at issue, that there are two members of the board charged under the statute with the duty of trying the- charges against respondents Hammil and James, against whom no attack is made.

The Board of Public Commissioners of Kansas City is created by, and therefore “lives and moves and has its being” solely pursuant to statute. [Sec. 9771, R. S. 1909.] The duties of such Board of Police Commissioners are likewise prescribed by statute and are broad and comprehensive; as note the statute defining those duties, which reads thus:

“They shall at all times of the day and night, within the boundaries of the city, as well on water as on land, preserve the public peace; prevent crimes and arrest offenders; protect the rights of persons and property; guard the public health; preserve order at every public election and at all public meetings and places, and on all nublic occasions; prevent and remove nuisances on all streets, alleys, highways, waters and other places; provide proper police force at every fire for the protection of firemen and property; protect emigrants and travelers at steam boat landings and railroad stations; see that all laws relating to elections, lotteries and lottery policies, and to the observance of Sunday, and relating to pawnbrokers, intemperance, vagrants, disorderly persons, gambling and bawdy houses, and every other kind and manner of disorder and offense against the public health and good order of society are enforced,- and shall enforce all laws and ordinances which may be properly enforceable by such police force. ’ ’

In order to carry out the broad and onerous official burdens laid upon these commissioners, the statutes provide that such board is authorized and required to employ a permanent police force and it is given power to equip and arm the same in such wise as they may deem necessary. [Sec. 9776, R. S. 1909.] Relative to the manner of appointing and removing’ the members of such permanent police force and to guide and restrict the actions of such board in those behalves, it is further provided by statute that “they will in no .case and under no pretest appoint or remove any policeman, or officer of police, or other person under them, for, or on account of the political opinions or affiliations of such policeman, officer or other person, or for any other cause or reason than the fitness or unfitness of such policeman, officer or other person;” and to this end and substantially in the above terms the members of the board are required to make oath. [Sec. 9769, R. S. 1909.]

Touching the conditions under which the removal of any policeman, or of any officer of police, may be had, and the manner-and method of such removal, the statute among other things provides thus:

“Having served one year probationary service to the satisfaction of the board, such policemen and police officers may be appointed for an additional term of three years, and shall thereafter be subject to removal only for cause and upon complaint being made, or charges being preferred against them, a copy of which complaint or charges, setting forth the grounds thereof, shall be .given to such policeman not less than forty-óight hours prior to the time the complaint or charges are to be heard by the' board, and they shall have a right to appear before the board and be confronted by the witnesses against them, and to be defended by counsel, and the board, after hearing the charges, shall take a vote by yeas and nays, to be entered upon the records whether or not the charges have been sustained, and what punishment, if any, shall be imposed. If the charges are found by the board to be sustained by the evidence, the board may remove such policemen or police officers, or the hoard may, instead of removal, suspend, reprimand or impose a fine upon the policeman or police officer, and in case any fine so imposed is not paid, the same shall be deducted from the salary of such policeman or police officer. If complaint is made or charges preferred against a policeman or police officer, which, in the opinion of the board, does not constitute an offense of which the board should take cognizance, the board shall dismiss such complaint or charges.” [See. 9784,JR. S. 1909.]

It is clear we think, that the statutes governing the matter of charges and complaints against policemen and police officers, contemplate that charges may be filed with the Board of Police Commissioners, not only by private persons and individuals, but also by the Board of Police Commissioners, or by any individual member of such board. For we note in section 9785, Revised Statutes 1909, tbe provision that “all complaints or charges filed by persons oilier than the commissioners^ or police offi-> cers, shall be verified by the oath of the person filing; such complaint or charges.” (Italics ours.) Section 9784, supra, is the only section of our statute governing the police force of Kansas City which provides for the removal for cause and upon charges and complaints of policemen and police officers of such police force; and the hearing before the Board of Police Commissioners in said section provided for is the only hearing possible to, be had. So it follows, that if said board may not hear complaints lodged against policemen and police officers, there is no place, board or person before which or before whom such complaints can be heard or tried. It is likewise clear that in hearing such complaints the Board of Police Commissioners sit and act not in judicial capacities, but in administrative capacities. [State ex rel. Heimburger v. Wells, 210 Mo. 601.]

The Wells case, supra, was a hearing by the defendant therein, who was at the time the mayor of the city of St. Louis, upon a complaint against Heimburger, relator therein, as Commissioner of Public Buildings of the city of St. Louis. In such hearing upon charges filed, Mayor Wells was proceeding and acting under charter provisions, in all respects, so far as concerns the legal principle involved, similar to the statutes here under discussion. The point involved upon the appeal in the Wells case was identically the same question here confronting us, that is, whether the fact that the complaint was caused to be filed by an administrative officer who by charter was authorized and empowered to hear those charges, disqualified such officer from hearing the same. Passing upon this identical point Fox, P. J., in an opinion unanimously concurred in by Division Two of this court, said:

“As already stated, the charter provisions imposed the duty upon the mayor to see that the laws of the city and ordinances of the city are respected and enforced. In other words, it is made his duty to see that the officers appointed by him are not derelict in the discharge of their duties, and the mere fact that his secretary prefers the charges against one of the officers in one of the departments, or even if the mayor should make out the charge himself, it by no means follows that he is prejudiced or biased or has any other interest in the proceeding than to ascertain whether or not the charges are true. The mayor has certain duties imposed upon him and he is entitled to the presumption that he will conscientiously and in good faith discharge those duties. It certainly would be a very violent presumption that the mayor of a great city in the investigation of charges against officials acted from spite or any other improper motive. The only presumption that can be indulged, in the absence of any showing to the contrary, is that he is acting in obedience to the commands of the organic law of the city of which he is the chief executive.”

We do not think there can be any question but that the Wells case, supra, and the cases from this court in the Wells case cited and discussed, rule this one upon principle; nor have we any doubt that the reason of the thing points inexorably to the same view. For we have seen that by statute an onerous and broad duty is placed upon the Board of Police Commissioners of Kansas City, to provide a capable and efficient police force and to use that force in preserving peace and order in their city. We must assume that the individual members of the Board of Police Commissioners will honestly, properly and efficiently perform the duties saddled upon them by statute (State ex rel. v. Wells, supra; State ex rel. v. Walbridge, 119 Mo. 383), and which by solemn oath they have bound themselves properly, efficiently and honestly to perform. We have seen that the sole judicatory by which trials of charges against policemen and police officers may be had, is before this board itself, and that it may hear complaints filed as well by its own members as by other police officers and by private individuals.

Sad we opine, would be tbe condition, as regards peace and good order, of any city, as large as we judicially notice Kansas City to be, if its Board cif Commissioners had to sit quietly and supinely by until some private individual should take the trouble and initiative' himself to file charges against members of the police force, and personally to prosecute those charges before this board. It was a wise provision of the Legislature therefore which put the power, and in a way the duty, of filing these charges and complaints (should such be deemed necessary), in the very hands of those officers who are under their oaths charged by law with the providing and maintaining of an efficient police force. So we need not belabor the point further. The case cited above, so far as this jurisdiction is concerned, is directly in point, and if the rule in other jurisdictions (depending it may well be, upon other and different statutes and constitutional provisions), is different from that in this State, that is no concern of ours.

It follows that our provisional writ of prohibition issued herein against respondent Burney, should be made absolute. Let this be done.

All concur, except Bond, Blair and Williams, JJ., who do not sit.