Opinion
No. 6995.
June 7, 1951.
APPEAL FROM THE CIRCUIT COURT, DIVISION NO. 2, JASPER COUNTY, WOODSON OLDHAM, J.
Robert E. Seiler, Joplin, for appellants.
Charles D. Tudor, Webb City, Watson, Richart Titus, Joplin, for respondent.
This is an action of mandamus commenced in the Circuit Court of Jasper County, Missouri, against the members of the Joplin Police and Fire Department Civil Service Commission to compel said commission to hear an appeal from the action of the mayor of the city of Joplin demoting relator from the position of traffic sergeant to that of patrolman. The trial court sustained relator's motion for a judgment on the pleadings and ordered respondents to hear the appeal of relator. From this judgment respondents appeal.
Relator's petition states first that relator was, on the 22nd day of April, 1950, and for some time before such date, a regular employee of the Joplin Police Department, in the position of traffic sergeant; that on the 22nd day of April, 1950, he was demoted by the mayor to the position of patrolman effective April 24, 1950; that pursuant to the Civil Service Act, Chapter 38, R.S.Mo. 1939, R.S. 1949, § 72.030 et seq., relator filed, on the 20th day of May, 1950, with the Joplin Police and Fire Department Civil Service Commission, notice of appeal; that the named respondents are the members of said commission; that on the 29th day of June, 1950, the commission unanimously decided that relator was not entitled to a hearing on said appeal; that respondents had wholly disregarded their duty under the law in refusing to make a finding on the appeal; that until such finding is made the relator cannot have any finding of fact or law reviewed by this court, as is his right under the provisions of said Act.
The prayer is that a peremptory writ of mandamus issue out of this court commanding said commission, and the members thereof, to hear the appeal filed by relator and make a finding thereof as prescribed by law and for such other orders as are deemed proper.
Respondents waived issuance of an alternative writ of mandamus and filed return July 31, 1950.
In the return respondents moved to dismiss relator's petition because it failed to state a claim upon which relief could be granted.
The return admits that relator was on the 22nd day of April, 1950, and for some time before, a regular employee of the Joplin Police Department, with position of traffic sergeant; that the members of the Joplin Police and Fire Department Civil Service Commission are as alleged in the petition and then the return denies all of the other allegations in the petition.
The return affirmatively pleads that on the 22nd day of April, 1950, H. Chris Oltman, Mayor of the city of Joplin, acting in his official capacity, verbally notified relator that he was demoted from traffic sergeant to patrolman; that on April 22, 1950, relator stated publicly that he intended to resign from said police department; that on April 26, 1950, relator made public his written resignation and transmitted it to the mayor through the United States mail, the same being received April 27, 1950. The return then states that the mayor accepted relator's resignation and designated a successor for the position formerly occupied by relator; that relator's name was removed from the payroll and the roster of the Police Department.
The return states that a notice of appeal was served on respondents May 20, 1950; that they requested an opinion from the City Attorney as to the procedure to be followed in relation to such appeal and that thereafter on June 29, 1950, respondents met in their official capacity to consider the appeal and in good faith decided that relator was not entitled to a hearing before respondents for the reason that relator had resigned from said Police Department, and said resignation had been accepted by the mayor; that respondents notified relator of this decision by letter dated July 5, 1950, through the United States mail.
The return then asks the court to deny the peremptory writ of mandamus.
Relator filed a motion for judgment on the pleadings which was by the court sustained October 16, 1950.
All the facts pleaded in relator's petition are admitted except that part which pleads that relator is entitled to a hearing on the appeal.
The sole question then presented to this court for decision is, did relator lose his right to appeal from the action of the mayor of the city of Joplin in demoting him from the position of police sergeant of that of patrolman by his letter of resignation from the police department, dated April 26, 1950. We will quote that part of the letter which we think bears on the question. Omitting the caption, the letter reads:
"In view of being demoted by you from Sergeant of the traffic Department to a Patrolman, I hereby tender my resignation.
"My demotion came without cause, in violation of the law governing civil service and the civil service rule. As there was no formal charge placed against me I was not appraized of any infraction of the rules or the law governing policeman in the City of Joplin.
"* * * * * * *
"I sincerely hope and trust that my successor can and will establish the same record and that he may have the fine co-operation of the children and of the various groups that have aided me."
Appellants' first assignment of error is as follows: "Having tendered his resignation to the mayor, and the said resignation having been accepted by the mayor, relator has lost the right to withdraw the resignation or to proceed as if he had not resigned."
Section 85.480, R.S.Mo. 1949 provides: "Dismissals and demotions of employees, subject to the provisions of sections 85.360 to 85.530, may be made only by the mayor upon the filing of written statements for the reasons of such dismissals or demotions with the commission, provided that copies of such statements shall be furnished to the employee so dismissed or demoted on or before the effective date of such dismissal or demotion. * * * provided, that any regular employee who is dismissed shall have the right to appeal to the commission, as provided under section 85.490."
Section 85.490 provides: "Any regular employee who is dismissed or demoted may appeal to the commission within thirty days after such action is taken. Upon such appeal, both the appealing employee and the mayor, whose action is reviewed, shall have the right to be heard publicly and to present evidence. The employee shall have the right to counsel, and at the hearing technical rules of evidence shall not apply. If the commission finds that the action complained of was taken by the mayor for any political or religious reasons, the employee shall be reinstated by the commission to his position without loss of pay. In all other cases, the findings and recommendations of the commission shall be submitted to and considered by the mayor who shall make the final decision by either accepting or rejecting such findings and recommendations and thereby disposing of the appeal, which decision may be reviewable by the circuit court of the county in which said city is located on writ of certiorari. * * *"
From the admitted facts the mayor acted without authority of law in demoting the relator from the position of sergeant to that of patrolman. It is admitted that such demotion was made by the mayor orally notifying the relator of such demotion. He did not file written statements for the reason of such dismissal or demotion with the commission and did not furnish said employee with copies of such statements before the effective date of such demotion as he was required to do under section 85.480, R.S.Mo. 1949.
Relator had the right to appeal under section 85.490, R.S.Mo. 1949, provided he did so within thirty days from the date of the action of the mayor in demoting him and then it became the duty of the commission, under said section, to give relator a public hearing, hear testimony and determine whether or not relator was demoted for political or religious reasons and, if they found that he had been so demoted, to restore him to his position without loss of pay.
Respondent, relator, cites authority to sustain his action in mandamus. We think that question was not raised or denied by the return, yet there can be no question but that mandamus was the proper remedy. There was a clear legal duty imposed upon the Joplin Police and Fire Department Civil Service Commission to entertain the appeal from the action of demoting relator by the mayor of Joplin at the time the appeal was taken and the commission refused to perform such legal duty so imposed by law.
In 38 C.J., p. 600, section 75, the law is stated:
"The duties which will be enforced by mandamus must be such as are clearly and peremptorily enjoined by law." See, also 55 C.J.S., Mandamus, § 64. State ex rel. Wainwright etc., v. Holman, 305 Mo. 195, 264 S.W. 908; State ex rel. Kern v. Stone, 269 Mo. 334, 190 S.W. 601; 55 C.J.S., Mandamus, § 71, p. 123; State ex rel. Fielder v. Kirkwood, 345 Mo. 1089, 138 S.W.2d 1009; State ex rel. Pedrolee v. Kirby, 349 Mo. 1010, 163 S.W.2d 964, 967; 55 C.J.S., Mandamus, § 76, p. 130.
Appellants, in support of their contention under assignment of errors numbered I, cite Section 6665, R.S.Mo. 1939, Mo.R.S.A. 665, R.S. 1949, § 85.320. This section provides that the mayor has power to appoint such policeman as may be deemed necessary by the city of counsel for the safety and protection of citizens. It also provides that the mayor may appoint additional officers, who may not be of a classified list in the cases of emergency.
We think the section does not support appellants' position for the reason there was no emergency here and, under the law, it was the duty of the mayor in filling the position vacated, when respondent was demoted, to appoint a successor, from a list of three candidates standing highest on the eligible list for the class or grade to which said position belongs. Section 85.440 R.S.Mo. 1949.
Appellants next cite State ex rel. Kirtley v. Augustine, 113 Mo. 21, 20 S.W. 651. In this case the county treasurer presented his resignation to the county court, under the mistaken idea that the county court was the proper authority, which resignation was certified to the governor who acted thereon and appointed a successor. In quo warranto proceedings to determine who was entitled to the office, the court held that the resignation could not be withdrawn after it had been accepted and acted upon by the governor. The court said: "`It is well-established law that, in the absence of express statutory enactment, the authority to accept the resignation of a public officer rests with the power to appoint a successor to fill the vacancy. The right to accept a resignation is said to be incidental to the power of appointment. * * * In order, then, to create a vacancy in the office held by Augustine, his resignation must have been lodged with the governor, and by the governor accepted. * * * When this resignation shall have been communicated to the proper authority, and the same shall be accepted, — whether formally or by the appointment of a successor, — it is beyond recall. * *'"
We agree that the law is that the proper authority to accept a resignation would be the one who had the power to appoint a successor.
There is no doubt in the case at bar that respondent resigned from the office of patrolman in this case. There is no doubt that the resignation was sent to the proper authority, the mayor, and, under the authority above quoted, we think the resignation would be binding upon respondent as to the office of patrolman. However, we hold that that resignation, in no way, precluded respondent from appealing from the wrongful action of the mayor in discharging respondent from the office of sergeant of the police department. When the mayor demoted respondent from the office or grade of sergeant, respondent's rights to the office were terminated and he was left to his remedy of appeal. When he appealed he did not hold the position of sergeant and, therefore, he could not resign from the same.
Section 85.490 R.S.Mo. 1949 provides: "Any regular employee who is dismissed or demoted may appeal to the commission within thirty days after such action is taken. * * * If the commission finds that the action complained of was taken by the mayor for any political or religious reasons, the employee shall be reinstated by the commission to his position without loss of pay. * * *."
Certainly, under this law, respondent was deprived of his position as sergeant, otherwise, how could he be reinstated? If he did not hold the office at the time of the letter of resignation, how could he resign from it? And, under this law, it is clear that respondent did not have to be an employee in order to appeal because the statute says he can either appeal from the action of demotion or from a dismissal. Certainly, respondent did not have to accept the position of patrolman in order to hold his right of appeal.
We cannot agree with appellants upon their first assignment of error.
Appellants' assignment of error No. II is that respondent waived his right of appeal. Under this contention appellants cite DeMay v. Liberty Foundry Co., 327 Mo. 495, 37 S.W.2d 640, 646.
The question involved in this case has no bearing whatsoever upon the facts of the case at bar. This was a workmen's compensation case. It is held that the workmen's compensation act is not invalid because it is in contravention of the constitutional right or guaranty accorded by section 10, article 2. The court said that the act is wholly elective and voluntary on the part of both the employer and employee, and the employee may reject the act at any time prior to the accident occasioning his injury and then the court stated the law: * * * As a general rule, an individual may waive the benefit of a constitutional right or guaranty, especially when no question of public policy or public morals is involved, and except in certain criminal proceedings in which the state, as well as the accused person, is directly interested. * * *"
There is no question but what that is the law but, under the facts in the case at bar, we have held that the evidence does not show relator ever attempted to resign from the position of police sergeant. Therefore, in the case at bar there is no question of waiver. We find against appellants on this contention.
We, likewise, find against appellants on their assignment of error No. III, that is, that the situation is academic or moot, because relator has no rights beyond the date of his resignation. It is needless to discuss the authorities under this heading for the reason that under the facts in the case at bar we have held there was no resignation.
Judgment of the trial court affirmed.
VANDEVENTER, P. J., concurs.
BLAIR, J., dissents in separate opinion.
In my judgment, appellants here (the members of and constituting the Joplin Police and Fire Department Civil Service Commission), had no right to appellate review of the order of the Circuit Court of Jasper County, and their attempted appeal from the order of October 16, 1950, should be dismissed by us as premature.
As I understand the opinion of the majority, the appellants here had no right to complain, as the Mayor of Joplin had not complied with the governing statutes. The so-called judgment of the trial court is affirmed, even though respondent here had no right to a hearing before appellants, as apparently held in the majority opinion, after he had resigned from the police force of Joplin. The letter, quoted in the majority opinion, does not even show conclusively that appellant resigned from the police force of the City of Joplin, but only that he resigned from his former position as Sergeant of Police.
I do not understand that the majority opinion attempted further to construe the letter of relator, than to hold that such letter barred him from having a hearing before appellants herein; but appellants here could not complain of the illegal action of the Mayor of Joplin, and the judgment of the trial court is affirmed, regardless of the right of respondent here to a hearing before the Commission.
I am unable to understand why the Commission attempted to appeal to this Court, unless relator's letter to the Mayor of Joplin should properly be construed as a resignation from the police force of the City of Joplin. The trial court apparently did not so construe that letter or the members of the Commission would not appear here as appellants. That is the only action of the trial court presented to this Court for review in the attempted appeal.
Neither the trial court nor this Court can properly construe the so-called letter of resignation of relator below. It was the exclusive function of appellants here to construe that letter, subject to the approval of its findings by the Mayor of Joplin. The Mayor's construction is final, unless the circuit court later construes that letter, under appropriate certiorari proceedings.
The mere reading of the conclusion of respondent's petition for judgment shows that he sought nothing further than that the trial court should compel appellants to grant him a hearing, which the Commission itself had previously denied. The prayer of respondent's petition in the trial court was as follows: "Wherefore, the petitioner and relator prays judgment that a peremptory writ of mandamus issue out of this court commanding Leslie L. Travis, Dick Miller, Ed McCartney and J. W. McAllister, being members of and constituting the Joplin Police and Fire Department Civil Service Commission, to hear the appeal filed by the relator, after such public hearing to make a finding thereon as is prescribed by law, and for such other and further judgment or order as may be proper."
On October 16, 1950, the trial court made the following order in the case, to wit: "It is therefore ordered and adjudged by the Court that the respondents Leslie L. Travis, Dick Miller, Ed McCartney and J. W. McAllister as constituting the Joplin Police and Fire Department Civil Service Commission, hear the appeal of relator William F. Potts filed with said commission on the 20th day of May, 1950, and make their finding thereon with all convenient speed."
It is very evident to me that the trial court attempted to do nothing further than to see that relator below had a hearing before the Commission. Its order was in no sense a final disposition of the rights of the parties.
The time may come when a trial court can say on certiorari what is the proper construction to be placed upon relator's so-called letter of resignation to the Mayor. Until that time comes, if it ever does, the action of the Mayor, on the report of the commissioners, when the Commission acts on relator's appeal to it, must be regarded as a final disposition of relator's asserted rights. Until such final disposition is made by the Mayor of Joplin, neither the trial court nor this Court on appeal can finally determine relator's claimed rights, by construing his so-called letter of resignation.
The courts have uniformly held that, before an appeal may be properly granted in any case, it must be shown that the action of the trial court finally disposed of the rights of the parties, and, unless a judgment does so dispose of such rights, the attempted appeal therefrom is premature and such appeal should be dismissed.
In my opinion, Section 126, page 390 of the Laws of Missouri for 1943, Section 847.126, pocket parts of 3rd Missouri, R.S.A. page 101, R.S. 1949, § 512.020, settles the rights of any party in a case to appeal from any order of the trial court. That section reads as follows: "Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his appeal to a court having appellate jurisdiction from any order granting a new trial, or order refusing to revoke, modify, or change an interlocutory order appointing a receiver or receivers, or dissolving an injunction, or from any interlocutory judgments in actions of partition which determine the rights of the parties, or from any final judgment in the case or from any special order after final judgment in the cause; but a failure to appeal from any action or decision of the court before final judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case."
In 4 C.J.S. § 16, page 225, under the subject of Appeal and Error, it is said: "In the absence of a statute an order granting or refusing a motion for judgment on the pleadings is not appealable, but is reviewable only on appeal from the final judgment. Such orders, however, are appealable in some cases under special statutory provision; and where a judgment is entered on the pleadings it is final for the purpose of appeal."
After an examination of the above quoted section, it cannot be asserted that Missouri has any such statutory provision.
Also, in 4 C.J.S. Appeal and Error, § 98, page 194, it is stated that, "On the other hand, while a decision on a matter which is merely collateral or incidental to the main suit is not such a final judgment as will authorize an appeal, the general rule is that an order or decree, final in its nature, which is made in a matter distinct from the general subject of litigation, and which affects only the parties to the particular controversy and those whom they represent, may be appealed from."
In 55 C.J.S., Mandamus, § 364, page 631 and 632, in discussing appeals in mandamus cases, among other things, it is said that,
"Accordingly, it has generally been held that final judgments or orders in mandamus proceedings are reviewable by an appeal or writ of error, but that interlocutory or intermediate orders are not so reviewable, unless it is otherwise provided by constitutional or statutory provisions. * *
"* * * A peremptory writ of mandamus is regarded at common law as the final determination of the rights of the parties, but it is necessary to enter a formal judgment before the case may be reviewed by an appellate court; and in most jurisdictions, under the statutes, a formal judgment must be rendered as the basis for the peremptory writ before it can issue, and no appeal will lie from a writ as such."
Such seems to be the rule in this State, as announced by the latest cases.
In Deeds v. Foster, Mo.Sup., 235 S.W.2d 262, 265, Judge Dalton, of the Missouri Supreme Court, said: "For the purposes of an appeal a judgment must be a final judgment and it must ordinarily dispose of all parties and all issues in the case." Citing many cases.
Among the numerous cases cited by Judge Dalton, I find the case of Magee v. Mercantile-Commerce Bank Trust Co., 339 Mo. 559, 98 S.W.2d 614, 616, wherein Judge Hyde, then Commissioner and formerly Chief Justice of the Missouri Supreme Court, said: "Our statute does not allow parties to appeal piecemeal or permit them to bring one issue in a case to an appellate court while other issues therein remain undecided by the trial court. Except as to the specific orders made appealable by the statute, they can only appeal from a final determination of the whole case."
Among other cases, Judge Dalton, in Deeds v. Foster, supra, cited Hanover Fire Ins. Co. v. Commercial Standard Ins. Co., Mo.Sup., 215 S.W.2d 444, 445, written by Judge Dalton, when he was a Commissioner of the Supreme Court, and said: "A judgment, to be final and appealable, must dispose of all parties and all issues in the cause."
In Shoush v. Truitt, 235 S.W.2d 859, 861, Bour, Commissioner of the Kansas City Court of Appeals, with the concurrence of the other Commissioner and all of the Judges of that Court, said: "The right of appeal is purely statutory, and where the statutes do not give such right, it does not exist."
Almost any number of other cases on the same proposition could be cited.
The majority opinion correctly holds that the Mayor did not comply with the law in demoting relator from sergeant to patrolman. Such demotion can properly be done only by complying with the statute, as provided in Section 13, page 290 of the Laws of Missouri for 1947, Vol. II.
The trial court did not make an appealable order on October 16, 1950, when that court sustained respondent's motion for a judgment on the pleadings. The appeal therefrom attempted to be taken by appellants, was premature and unjustified. Such attempted appeal should now be dismissed, regardless of respondent's right to a hearing before the Commission, which the trial court's order of October 16, 1950, commanded.