Opinion
No. 27844.
March 21, 1950. Motion for Rehearing or to Transfer to Supreme Court Denied April 21, 1950.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT, JAMES F. NANGLE, J.
James E. Crowe, St. Louis, John P. McCammon, St. Louis, for appellant.
Claude W. McElwee, St. Louis, for respondent.
Robert W. Mahon, hereinafter referred to as petitioner, brought this action in mandamus in the Circuit Court of the City of St. Louis, Missouri, to compel R. Elliott Scearce, Director of Personnel of said city to certify petitioner as being eligible to appointment on the Fire Department of said city. Said Director of Personnel was respondent in the Circuit Court but is the appellant in this court.
The Circuit Court issued an alternative writ of mandamus to which the appellant filed a return and moved that the alternative writ be quashed and that petitioner's petition be dismissed. Thereafter petitioner filed a reply to the return of the Director of Personnel following which there was a trial before the court. At the trial the parties introduced evidence pro and con, and on June 2, 1949, the court entered judgment for a peremptory writ of mandamus to issue to Director Scearce commanding him to certify the petitioner's name upon the list of eligibles from which appointments are made to vacancies on the Fire Department of the City of St. Louis. After an unsuccessful motion for a new trial the Director of Personnel appealed to this court.
It appears from the record herein that appellant's office of Director of Personnel of the City of St. Louis, was created by Amended Article 18 of the Charter of said city, wherein his duties and authority as such Director of Personnel are set forth and defined as well as by the rules adopted thereunder. Section 2 of said Amendment provides that all appointments to positions in the service of the City of St. Louis shall be on the sole basis of merit and fitness which, so far as practicable, shall be ascertained by means of competitive tests. Sub-section 3(c) of said Amendment provides that the means for determining merit and fitness for appointment to competitive positions in the service of the City shall be by competitive examinations held after due public notice, and that the tests of fitness in said examinations shall be "practical in character" and designed "fairly to measure" the relative qualifications of applicants for positions of the several classes. Section 9 of said Amendment provides that the Director of Personnel shall be head of the Department of Personnel and Section 9(g) provides that he shall hold examinations, pass upon the qualifications of applicants, establish eligible lists and certify names of eligibles to appointing authorities for filling vacancies in competitive positions.
One of the rules prescribed pursuant to the aforesaid Amendment is rule VI Section (1) which provides that the Director of Personnel shall prepare or direct the preparation, review, and rating of tests to determine the fitness of applicants for positions in the classified service. Section 5 of Rule VI provides that such tests shall be "practical in character" and designed "fairly to measure" the relative qualifications of candidates for the positions of the several classes and that said tests shall take into consideration elements of character, education, aptitude, experience, knowledge, skill, personality and physical fitness of applicants. These requirements as to the qualifications under the Charter and rules are not disputed. They are set forth in the petition of petitioner and admitted in appellant Scearce's return which he filed in the Circuit Court.
On or about November 25, 1948, which was some time prior to the issuance of the Circuit Court's writ of mandamus, a public notice was given by an advertisement for persons to take examinations for the positions of fire fighters in the service of the City. In response to said advertisement and notice, petitioner presented himself as an applicant to take tests and examinations for certification to the eligible lists from which permanent appointments will be made to fill present and future vacancies in the Fire Department of the City. The petitioner was given a written test. He passed successfully the written tests and also passed all tests in running, jumping, climbing, and lifting. He also showed that he possessed all the citizenship and resident requirements to qualify for such examinations and certification. The above mentioned tests were followed by a physical examination. The physical examination was conducted on a "pass or fail" basis. The petitioner's eyes, ears, throat and teeth were all examined and when his teeth were examined the examining doctor stated: "Mark them all false but serviceable."
The petitioner was thereafter notified that he had failed to pass the physical examination for the reason that he did not have sufficient natural teeth to meet the minimum standards required for passing the medical part of the examination.
At the trial in the Circuit Court the petitioner introduced the testimony of Frank Egenriether who was then Chief of the Fire Department of the City, Walter H. Kammann, then Fire Marshal of the City who later became Chief of the Fire Department, and Bruce Mahon, petitioner's father, who served as a fireman on the Fire Department of the City for more than twenty years, and thereafter was employed in fire fighting work for Federal agencies. The sum and substance of the testimony of all of said witnesses was that a lack of twenty natural teeth would not in any way disqualify a person from acting as a fire fighter.
Petitioner testified that he is 31 years of age; that he is married; that he has had false teeth since he was sixteen years of age; that his false teeth perform all the functions of natural teeth, and that they were pronounced "serviceable" by the physician who examined him for the Director of Personnel.
Petitioner further testified that in 1942 he worked as a fireman under Civil Service at Jefferson Barracks, Missouri, for about eight months; that he then enlisted in the Navy; that he took a physical examination in connection with his enlistment during which the examining doctor saw that he had false teeth but that he was nevertheless taken into the Navy and served three-years and three months; that during a part of that time he was assigned to fire fighting duties and was in charge of eighteen men and one engine at the Amphibious Training Base at Coronado, California.
The petitioner further testified that the fact that he had false teeth did not in any way affect his work as a fireman at Jefferson Barracks nor while he was in charge of the fire fighting duties in the Navy; that he had never been sick with any disease since he had spinal meningitis at the age of 16, at which time his natural teeth were removed.
Petitioner's Exhibit C, the public notice given by the Department of Personnel of Civil Service Examinations to be held thereafter was dated November 25, 1948. It contained statements of the necessary special qualifications for fire fighter examinations in paragraph 3 thereof as follows: "Medical test to be given to determine presence of physical disability or disease; among causes for disqualification are: Hernia, venereal disease, heart and lung trouble, flat feet, weak eyes, and poor hearing. * * *" It will be observed that there is nothing in the medical tests set forth in the above exhibit C requiring an applicant to have twenty natural teeth.
It appears that after the various tests and examinations the petitioner received a card from the Personnel Department containing the inscription "Eliminate under medical examination." The petitioner then discussed the matter with Dr. Fagan of the City Personnel Department. It appears that Dr. Fagan had a list of regulations among which was one requiring an applicant for the position of fire fighter to have twenty natural teeth. The petitioner thereafter discussed his application with the appellant, Director of Personnel, who wrote petitioner a letter advising him that he had been eliminated because he did not have a sufficient number of natural teeth.
Director of Personnel Scearce testified on his own behalf that the requirement of twenty natural teeth was in his judgment a reasonable requirement under the rules and that such a rule exists in approximately half of the cities throughout the country which have Civil Service examinations for the qualification of firemen. It appears that the Circuit Court entered an interim order requiring appellant Scearce to complete the physical examination of the petitioner and to certify the results to the Circuit Court. Said examination was completed by Dr. John P. Ferrara whose finding showed that in addition to the absence of teeth, petitioner had a chronic acnoid condition and weighed 149 pounds, whereas the minimum fixed by the City for a person of petitioner's height is 152 pounds.
Appellant contends that the facts in evidence in this case do not make a proper case for mandamus and that the trial court erred in refusing to quash the alternative writ and dismiss the petition. Appellant points out that it is conceded that the requirements to place the petitioner's name on the list of names eligible for appointment to the Fire Department included a requirement that the applicant have a minimum of twenty natural teeth, and that it is also conceded that petitioner has no natural teeth. Appellant argues that mandamus cannot be employed to compel the performance of any act until and unless the legal right to such performance has been established; that such right has not been established by the petitioner; that the formulation of rules for Civil Service examinations and the fixing of standards for positions in the service of the City is a function of the Civil Service Commission and Personnel Director and that the court is without power to fix other and different standards even though it may believe those fixed are improper.
We are of the opinion that the Circuit Court reached the right conclusion in ordering the issuance of a peremptory writ of mandamus. It is true that it is not within the province of a court to substitute other and different standards for examinations than those prescribed by the Personnel Department. However, it is the Court's duty when its authority is properly invoked to see to it that the rules and standards set up by the Director of Personnel are in accordance with the Amendment to the Charter of the City of St. Louis relating to the qualifications of candidates for positions in the various classes. The Director of Personnel must see to it that the rules and regulations he makes are within the authority vested in him by the law governing such matters.
Subsection (c) of Section 3 of the Amendment to the Charter of the City of St. Louis provides: "The tests of fitness in such examinations shall be practical in character and designed fairly to measure the relative qualifications of candidates for positions of the several classes." (Emphasis ours.) In making rules and regulations the Director of Personnel in the performance of his duties is as much bound by the law as are the applicants who seek positions under the law. The question, therefore, at once presents itself as to whether or not the regulation made by the Director of Personnel which requires that an applicant shall have a minimum of twenty natural teeth to entitle him to certification to the list of those qualified for the position sought is "practical in character" and designed "fairly to measure" the relative qualifications of candidates as required by said Subsection (c) of Section 3, supra, of the Amendment to the City's Charter.
The evidence overwhelmingly shows that the fact that the petitioner did not have twenty natural teeth would not in any way interfere with or impair his ability to serve as a fireman in the City's Fire Department. There is no evidence to the contrary. It is conceded that the petitioner passed all tests to which he was subjected, which involved mental and physical examinations, and that the only reason he was not certified as qualified was that he did not have twenty natural teeth. The evidence showed, without dispute, that there are numerous firemen, now members of the City's Fire Department, who do not have twenty natural teeth, and that their efficiency as firemen is not impaired in any degree because of the fact that they have false teeth.
The testimony of appellant, Director of Personnel, was to the effect that the regulation requiring an applicant to have twenty natural teeth was and is justified because by excluding all applicants who do not meet all of the requirements of the rules and standards, including the requirement that the applicant have twenty natural teeth, a list of eligibles will thereby be obtained which will contain only those applicants "best qualified" for positions in the Fire Department. The trouble with that theory is that the City's Charter and the rules and regulations adopted by the Civil Service Commission in relation to such examinations do not provide that they shall be conducted for the purpose of determining the "best qualified" applicants. They provide for examinations that shall be "practical in character" and designed "fairly to measure" the relative qualifications of candidates for positions of the several classes. We do not believe that it can properly be said, under the evidence in this record, that the regulation requiring an applicant to have twenty natural teeth is a "practical" and "fair" test of qualification to perform the duties of a fireman.
There is no evidence whatsoever that the petitioner in this case, although possessed of false teeth instead of twenty natural teeth, is in the slightest degree incompetent to perform any of the duties of a fireman. The testimony of two of the highest officers of the Fire Department, who are "practical" fire fighters with many years of experience demonstrates that the requirement that an applicant have twenty natural teeth is anything but "practical." The testimony of said "practical" fire fighters is not disputed. The word "practical" is a plain, simple word and must be given its plain meaning. Webster's Unabridged Dictionary defines it as follows: "Practical — Of, pertaining to, or consisting or manifested in, practice or action; — opposed to theoretical, ideal, or speculative." We hold that the rule made by appellant requiring applicants to have twenty natural teeth is, therefore, unauthorized and clearly beyond the scope of the authority given to the Director of Personnel by the law which governs his Department.
In State ex rel. Roberts v. Wilson et al., 221 Mo.App. 9, 297 S.W. 419, the court had before it an action in mandamus brought by a school pupil to compel the principal and director of a school district to deliver to the pupil an eighth grade graduation certificate and to remove the conditions on the release of her grades for the first year of high school. The trial court had denied the writ and the relator-pupil appealed. The Court of Appeals reversed the action of the trial court and remanded the cause with directions to issue a peremptory writ of mandamus.
It appeared in said case that the pupil had successfully completed the required course of study but did not pay a charge of $20.00 which had been made by the order of the Board of Directors of the School District. The pupil contended that it was beyond the power of the School District to make the charge of $20.00 for the certificate. The Court of Appeals held that the Board of Directors of the School District had no authority to require payment of a tuition fee for such certificate. The court said: "The refusal to pay the tuition fixed by the board of directors was no legal justification for refusing to give relator her certificate of attainment, or for refusing to release her high school credits". State ex rel. Roberts v. Wilson et al., 221 Mo.App. 9, 14, 297 S.W. 419, 420.
Just as in the case of State ex rel. Roberts v. Wilson, supra, there was no power or authority in the Board of Directors to require the payment of a tuition fee, so in the case at bar there is no power or authority vested in the Director of Personnel to make a requirement that an applicant have twenty natural teeth as a condition precedent to the right to be certified as qualified.
The Roberts v. Wilson case, supra, is also authority for holding that mandamus will lie in such a situation as we have before us. On this point the court said: "Mandamus will lie to compel the undoing of a thing wrongfully and improperly done, when such wrongfully and improperly done thing precludes or prevents rights to which one is under the law entitled. state ex rel. Snow Steam Pump Works v. Homer, 249 Mo. 58, loc. cit. 65, 155 S.W. 405, 406; State ex rel. Bayha v. Philips, 97 Mo. 331, 10 S.W. 855, 3 L.R.A. 476; 10 C.J. 592." State ex rel. Roberts v. Wilson et al., 221 Mo.App. 9, 15, 297 S.W. 419, 421.
The appellant, Director of Personnel, attempted to justify the requirement that an applicant have twenty natural teeth by testifying that such a requirement exists in about 50% of the cities of the United States. That testimony was not only not binding on the Circuit Court but was of no probative value because the appellant herein was and is limited and bound by the Charter provision which requires that the examinations shall be of a "practical nature." It, therefore, is not material what other cities might have done in this respect, because there was no showing that such other cities possessed Charter provisions similar to the one involved herein.
Even though the requirement that an applicant have twenty natural teeth might be said to enable appellant to determine the "best qualified" among the applicants, it is obvious that such a requirement was beyond the scope of his authority to make. In making rules and regulations and setting up standards the Director of Personnel is clearly limited to those which are within the powers conferred by the Charter and they require that the tests be "practical in character."
In Taylor et al. v. Dimmitt, Mayor, et al., 336 Mo. 330, 336, 78 S.W.2d 841, 843, 98 A.L.R. 995, the court said: "Even as to governmental functions, Missouri cities have or can exercise only such powers as are conferred by express or implied provisions of law; their charters being a grant and not a limitation of power, subject to strict construction, with doubtful powers resolved against the city."
In City of St. Louis v. J. E. Kaime Brother Real Estate Company, 180 Mo. 309, 322, 79 S.W. 140, 143 the Supreme Court quoted with approval from Dillon, Municipal Corp. Vol. 1 (4th Edition, page 145) as follows: "`It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: (1) Those granted in express words; (2) those necessarily or fairly implied in, or incident to, the powers expressly granted; (3) those essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied.'" (Emphasis ours.) The case of the City of St. Louis v. Kaime, supra, and numerous other cases were cited with approval by the Supreme Court in Taylor v. Dimmitt, supra.
In support of his contention that petitioner did not make a proper case for mandamus, appellant cites State ex rel. and to Use of Crites v. Short, 351 Mo. 1013, 174 S.W.2d 21, and State ex rel. Hanlon v. City of Maplewood, 231 Mo.App. 739, 99 S.W.2d 138.
The Crites case, supra, was an action to compel the Collector of Revenue of Wayne County, Missouri, to execute a deed to certain lands under the provision of the Jones-Munger Act of 1933, Section 11117 et seq., R.S.Mo. 1939, Mo. R.S.A. The trial court denied the writ and the Supreme Court affirmed the trial court's judgment. We find nothing in the Crites case that would authorize us to hold in the case at bar that the petitioner is not entitled to have a peremptory writ of mandamus issued to compel the appellant to certify petitioner as being eligible to appointment on the Fire Department. What we have said with respect to the Crites case, supra, is applicable to the case of State ex rel. Hanlon v. City of Maplewood, supra, cited by appellant. Said Hanlon case involved the construction of statutes governing third class cities with respect to the matter of adopting Civil Service regulations. The decision in said case is not applicable to the case at bar on the facts involved.
Appellant contends that the formulation of rules for Civil Service examinations and the fixing of standards for positions in the City's service is a function of the Civil Service Commission and Personnel Director, and that the court is without power to fix other and different standards. He cites several cases from other states to support this contention. What we have already said herein disposes of this contention but it is not amiss for us to point out that neither the Circuit Court nor this court has made any attempt to fix rules or standards to govern such examinations. We have simply held that in fixing the requirement that an applicant must have twenty natural teeth for eligibility the appellant went outside and beyond the law and thereby denied the petitioner his legal right to have the examination conducted according to law, and that the petitioner is entitled to a remedy for the deprivation of said right.
Appellant has made no point with respect to the fact that in the interim examination of the petitioner by Dr. Ferrara made at the request of the Circuit Court it was disclosed that the petitioner was three pounds underweight and had a condition described as acnoid. Those matters are, therefore, not before us for consideration.
Our examination of the entire record leads us to the same conclusion as that reached by the trial court. The judgment of that court is, therefore, affirmed.
ANDERSON, P. J., dubitante.
HUGHES, J., concurs.