State Ex Rel. Kansas City v. Coon

This is an original proceeding in prohibition. The pleadings in the case, the petition, return and reply, disclose the following facts:

On or about June 11, 1923, one Dee Pickett, filed in the Circuit Court of Jackson County a petition in mandamus entitled: "State of Missouri at the Relation of Dee Pickett, Relator, v. Kansas City, Missouri, a municipal corporation; William Buchholz, George H. Edwards and Hughes Bryant, as members of the Board of Fire and Water Commissioners of Kansas City, Missouri; James B. Shoemaker, as Assessor Collector of Water Rates; Clarence I. Spellman, J.S. Adsit and Irving Smith, as members of the Board of Civil Service; George E. Kimball, as City Comptroller; Ben Jaudon, as City Treasurer; Eugene H. Blake, as City Auditor; and Albert I. Beach, as Mayor of Kansas City, Missouri, Defendants — No. 186979." The petition as subsequently amended, omitting caption and signature was as follows:

"1. The petition of Dee Pickett respectfully represents that he is now and for many years last past has been a citizen and resident of Kansas City, Jackson County, Missouri; that defendant Kansas City, was and is a municipal corporation duly organized and existing according to the laws of Missouri and having a special charter adopted pursuant to the provisions of the Constitution of Missouri; that defendants have for some time been and still are the duly appointed (or elected) qualified and acting members of administrative boards created by the charter and ordinances thereof or officers of said city as classified in the caption.

"2. Ordinance of Kansas City, numbered 6619, approved October 17, 1910, entitled ``an ordinance concurring in and approving a general schedule of the number, grade and compensation of the officers, agents and employees of the water department' approved a resolution of said Board of Fire Water Commissioners, which among other things provided for the position of mail clerk at a salary of $1140 per annum; Ordinance No. 29845, approved June 19, 1917, entitled as aforesaid, provided for the position of general clerk at a salary of $1200 per annum; by Ordinance 32569, approved March 19, 1918, said salary was increased to $1400 per annum, and by ordinance numbered 33235, approved June 18, 1918, entitled as aforesaid, said salary was increased to $1500 per annum. Said compensation was by Ordinance No. 38228, approved July 16, 1920, entitled as aforesaid, increased to $1620, and by Ordinance No. 45535, approved May 26, 1923, entitled as aforesaid, to $1800 per annum. Said positions according to the provisions and requirements of said Article 15 of the City Charter were and are in the competitive class of the city's service; that Section 10 of said Article 15 of the City Charter, provided, among other things, ``No person in the city service shall be removed, reduced in grade or salary, or transferred because of political or religious beliefs or opinions of such person; nor shall any person in the competitive class of the city's service be removed, reduced in grade or salary, or transferred without first having received a written statement setting forth in detail the reasons therefor.'

"3. On or about March 15, 1911, the Board of Civil Service pursuant to and in conformity with said Article 15 of the Charter of Kansas City and the rules and regulations of said board, held an examination for the position of mail clerk; relator appeared and underwent said examination and received a rating by said Board of Civil Service of 80.05 per cent; that thereafter on or about March 24, 1911, said Board of Civil Service notified your petitioner that he had received said rating and that same entitled him to second place on the eligible list for said position. In response to requisition from the then assessor and collector of water rates, on or about July 20, 1920 [1911?], said Board of Civil Service certified relator's name to the then appointed, qualified and acting assessor and collector of water rates for appointment to said position. That on or about July 20, 1920 [1911?], the then assessor and collector of water rates appointed relator to said position and relator immediately entered upon the performance of the duties thereof and continued to perform said duties and receive the salary provided therefore until on or about October 1, 1914.

"On October 1, 1914, relator was promoted to the position of meter ledger clerk, collection division, at said salary of $1200, in which position he served until June 27, 1917, when in accordance with charter and the regulations of the Board of Civil Service he was transferred to the position of general clerk, collection division, in which position he served until on or about August 15, 1918.

"That said salary was paid to relator in semi-monthly installments in the following manner: The name of relator and the amount of his salary for one-half month, with those of other officers and employees of said department, were placed upon a pay roll prepared and certified by or under the direction of the said board and the assessor and collector, whereupon said pay roll, together with a requisition prepared by or under the direction of said board and said assessor and collector, was delivered to the city auditor of Kansas City, requiring him to draw warrants on the city treasurer of said city in payment of the said salaries, was presented by or under the direction of said board and said assessor and collector to the comptroller of said city, who, after procuring the endorsement upon said pay roll of the Board of Civil Service of Kansas City, Missouri, presented same to the city auditor, who in accordance with said requisition drew his warrants on the city treasurer to the several persons and for the several amounts named in said pay roll; said comptroller then countersigned said warrants and registered them in his office, and delivered them to the city auditor, who delivered them to the persons named therein; said warrants were then presented to and paid by the city treasurer to the proper holders thereof.

"4. On or about August 15, 1918, while relator was in lawful and peaceable possession of said position and employment and while faithfully discharging the duties thereof, the then assessor and collector, without first having delivered to relator a written statement setting forth in detail the reason therefor, without giving relator a hearing or any opportunity to be heard, attempted to discharge relator from his said position of general clerk, collection division, and notified relator that he was removed therefrom to take effect on August 15, 1918. That said officer shortly thereafter assuming to appoint a successor to your relator, unlawfully placed another person in charge of said position or employment and has ever since excluded relator from his said position or employment and has refused to allow him to perform the duties thereof, and that each and all of the other defendants and their predecessors have refused and still refuse to recognize relator as general clerk, collection division, or to allow relator's name to be placed upon the pay roll or to take any steps leading to the payment of relator's salary or any part thereof, and that relator has received no part of his salary after August 15, 1918.

"5. The said attempt to discharge and exclude relator from his position was in direct violation of the express provisions of the Charter of Kansas City and the law of the State of Missouri in this to-wit: That relator was never furnished by any officer, agent or employee of the city with a written statement setting forth in detail the reason for the said attempted discharge and relator was attempted to be removed and discharged because of political beliefs or opinions, and without giving to relator any hearing or opportunity to be heard, touching the right or power to remove or his faithfulness or unfaithfulness in the service.

"6. Notwithstanding said attempted removal, relator still is the duly and legally appointed and qualified general clerk, collection division, and legally entitled to perform the duties thereof and receive the salary therefor.

"7. Immediately after notice of said attempted removal relator demanded of the said assessor and collector that relator be immediately reinstated and recognized as general clerk, collection division, and prior to institution of proceedings caused to be served upon all defendants or their predecessors in office a demand for restoration to said position, and for the relief herein prayed, but defendants and their predecessors have refused to take any steps to restore relator to his position or afford the relief prayed, although he was clearly entitled thereto.

"Wherefore, relator prays that this court award a writ of mandamus commanding defendants, the members of the Board of Fire and Water Commissioners of Kansas City, Missouri, or their successors, and defendant, the Assessor and Collector of Water Rates, of Kansas City, Missouri, or his successor, without further excuse or delay, to restore relator to said position and reinstate relator's name upon the pay roll of the water department from and after the date of said unlawful discharge, to-wit, August 15, 1918, until relator shall have been actually restored to said position and certify the same to the City Comptroller with their requisition upon the City Auditor to prepare warrant for relator's said salary and to recognize relator as the lawful general clerk, collection division, Water Department of Kansas City, Missouri; commanding defendant Comptroller, or his successor, to approve said pay roll and to present same to the City Auditor, or his successor, and to said Board of Civil Service Commissioners, or their successors, for their endorsement; commanding defendant, said Board of Civil Service Commissioners or their successors to endorse said pay roll, commanding defendant City Auditor or his successor to draw warrant in favor of relator for such salary, commanding said Comptroller, or his successor, to countersign said warrant and deliver same to the City Auditor, commanding said City Auditor to deliver same to relator and commanding said City Treasurer or his successor to pay said warrant when presented. Relator further prays for recovery of costs."

The suit in which said petition was filed was pending on February 24, 1925, the date on which a new charter was adopted by Kansas City and the date on which certain sections thereof, including Section 125, became effective; and it was still pending on April 10, 1926, when the charter as a whole went into effect. After the date last mentioned the plaintiffs in said suit (which will hereafter be designated as the Pickett case) filed a motion in the division of the circuit court in which the cause was pending, asking that the incumbents of offices under the new charter, who by the terms of the administrative code enacted pursuant to the provisions of such charter are declared to be the successors and to succeed to the duties of the officers originally named as defendants, be substituted, in their official capacities, as parties defendant. The motion was sustained and the substitution accordingly made. Thereupon, on the 22nd day of May, 1926, defendant Kansas City (as relator) filed in this court its petition in prohibition.

Relator alleged in its petition, among other things:

"That the respondents constitute the entire Circuit Court of Jackson County, Missouri; that O.A. Lucas is the judge of division number two and acting as the presiding judge of such court, with the power to transfer and assign cases to other divisions of the court under the rules of such court; that more than three hundred mandamus suits are now pending in all the divisions of such court against Kansas City, asking that the plaintiffs therein be restored and reinstated to the positions held by them prior to their discharge, and for the salaries attaching to such positions; that respondents have assumed jurisdiction of all of the said cases and are proceeding to hear and determine same; that all of said mandamus suits raise the same questions, that is, the right to restoration and the recovery of the salaries under the old charter of 1908 which has been repealed; that . . . unless this court issues its preliminary rule in prohibition respondents and each of them will proceed with said cases and will render judgment of restoration and allow such plaintiffs to recover salaries up to the date of such restoration."

Our provisional rule issued as prayed.

The grounds upon which relator bases its claim for relief in prohibition are set forth in its petition repetitiously and somewhat argumentatively, but they may be epitomized and grouped as follows:

(1) Under Section 10 of Article 15, of the Kansas City Charter of 1908, a person in the competitive class of the classified service of the city could be removed or discharged without notice, trial or hearing, and if such person were wrongfully removed or discharged, neither Section 10 nor any other provision of the charter provided for his reinstatement. Said Section 10 provided that if any officer, board, head of department or other person having power to discharge, abused such power, such officer, board, head of department or person should be subject to removal; and Section 31 of said Article 15 provided that any person who wilfully, or through culpable negligence, violated any of the provisions of that article should be deemed guilty of a misdemeanor and upon conviction be punished by fine or imprisonment or both. These provisions of the Charter of 1908 constituted the sole remedy available to a person in the competitive class of the civil service who was wrongfully dismissed from the service.

(2) "After the adoption of Section 125 of the new charter, effective on the 24th day of February, 1925, and after the adoption of the charter as a whole, effective on the 10th day of April, 1926, the said Dee Pickett was and is not entitled to be restored to the office claimed by him, because the remedy in mandamus, if ever available, was taken away from him upon the adoption of such new charter."

(3) "Dee Pickett and other discharged civil service employees rendered no service to the city after such discharge, but the city employed others who performed their work and were paid therefor; . . . to now compel such city to pay the said Dee Pickett and others is in violation of Section 20 of Article II of the Constitution of Missouri, and deprives relator of its property without due process of law; and is in violation of Sections 46 and 47 of Article IV of the Constitution of Missouri, and constitutes a gift or gratuity paid to the said Dee Pickett and others; and is in violation of Section 48. Article IV, of the Constitution of Missouri, in allowing the said Dee Pickett and others extra compensation after service is rendered; and is in violation of Section 3 of Article X of the Constitution of Missouri, which provides that taxes may be collected only for public purposes, and if payment be made to such discharged civil service employees, such taxes so collected are used for purposes other than public purposes; and in violation of Section 1, Article XIV, of the Amendments to the Constitution of the United States in that it deprives relator of its property without due process and is an unlawful discrimination and denies the equal protections of the law and abridges the privileges and immunities of relator."

(4) "By virtue of the great number of suits and the accumulation of salaries each day amounting to more than two thousand dollars, if there be accumulations, prohibition is the only remedy by which such matters may be determined; and relator has no adequate remedy at law."

In their return respondents aver, inter alia,

"That they have jurisdiction and it is their duty to hear, determine and decide said contentions, and all other contentions arising in said causes, according to the evidence adduced and the law applicable thereto, as and when said suits of Pickett and others in the same situation shall properly come on for hearing before respondents, and aver that they have not determined or decided anything in said causes arbitrarily; . . . that all the questions aforesaid are within their proper jurisdiction, and they deny that they are usurping or improperly exercising jurisdiction."

I. A consideration of the matters set out in the preceding statement as group "(1)," which relator alleges entitlePower to it to the remedy of prohibition, calls for aRemove. consideration of Section 10, Article 15, of the Charter of 1908. Certain related provisions should be first noted.

Section 3 of Article 15 divides the civil service of the city into the "exempt service" and the "classified service."

Section 4 designates the officers who comprise the exempt class; all officers elected by the people; the sergeant at arms of the common council or either house thereof; the mayor's secretary and the mayor's stenographer; the city auditor; the city counselor; the city clerk; the city assessor; the city comptroller; the city treasurer; their deputies and assistants; the members of certain boards, such as the board of public works; and a few others specifically named.

Section 5 provides: "The classified service shall comprise all officers and positions in the city service not specifically designated in the exempt service, and shall be arranged in two classes to be designated respectively as the competitive class and labor class."

Section 6 defines the competitive class as including all positions in each and every branch of the civil service of the city, except such as are in the exempt service or in the labor class. Under Section 8 the labor class includes "unskilled laborers and such skilled laborers as may be so classified by the rules and regulations of the [civil service] commission."

Section 10 deals with the power of removal. The portions relevant to the present consideration are as follows:

(a) ". . . heads of departments shall respectively have power to remove or discharge any person holding any office, position, or employment in their respective departments whenever, in their opinion, the good of the public service requires the exercise of such power.

(b) "It shall be the duty of a discharging officer, upon request of a discharged person, at any time after discharge, to give such person a correct statement in writing of the reasons for his discharge.

(c) "No person in the city's service shall be removed, reduced in grade or salary, or transferred because of political or religious beliefs or opinions of such person;

(d) "nor shall any person in the competitive class of the city service be removed, reduced in grade or salary or transferred without first having received a written statement setting forth in detail the reasons therefor."

Clause "a" confers in broad and general terms the power of removal. It carries with it an implied limitation on that power, namely, that it should be exercised only when, in the opinion of the officer having the power to remove or discharge, "the good of the public service" requires it to be. In the succeeding clauses there are two, and only two, limitations on the power. These are express. Clause "c," "no person in the city service" shall be removed, etc., because of political or religious beliefs; and "d," "nor shall any person in the competitive class" be removed, etc., "without first having received a written statement setting forth in detail the reasons therefor." Clause "c," is of general application, comprehending all persons in the city's service in its limitation of the power to remove them; clause "d" is by its own terms restricted in its application to the removal of persons in the "competitive class." Clause "b" is in no respect a limitation on the power of removal. It merely requires that the discharging officer give the person discharged, at any timeafter discharge, a statement in writing of the reasons for his discharge. It was held in State ex rel. Hamilton v. Kansas City,303 Mo. 50, 66, that this clause, in the use of the word "discharge," was applicable only to the labor class. An employee is discharged; but an officer is removed. But if that is not the correct interpretation, the clause is general in its application, comprehending both the labor class and the competitive class; and if there is any repugnancy between it and clause "d," the latter must prevail. "When there is in the same statute a particular enactment, and also a general one which in its most comprehensive sense would include what is embraced in the former, the particular enactment must be operative, and the general enactment must be taken to affect only such cases within its general language as are not within the provisions of the particular enactment. . . . the particular specified intent on the part of the Legislature overrules the general intent incompatible with the specific one." [25 R.C.L. p. 1010, sec. 250.] This rule of construction is one of universal recognition. [McGrew v. Railroad, 230 Mo. 496, 524; State ex rel. v. Foster,187 Mo. 590, 610; Jaicks v. Merrill, 201 Mo. 91, 106; 36 Cyc. p. 1130, sec. C.]

The power to remove an officer, like the power to appoint, may be absolute or conditional. It is absolute when it is vested in the unlimited discretion of the removing officer to be exercised at such time and for such reasons as he may deem proper and sufficient. It is conditional when the time, the manner or the reason is placed beyond the mere discretion of the removing officer. When conditional, the power must be pursued with strictness; it can be exercised only in the manner and upon the conditions fixed. [Mechem's Public Officers (1890 Ed.) secs. 448, 450.] From the analysis just made of Section 10, Article 15, of the 1908 Charter, it is plain that the power to remove a person in the competitive class of the city service which was therein and thereby conferred was not an absolute power. Clause "d" in express terms provided: "Nor shall any person in the competitive class of the city service be removed . . . without first having received a written statement setting forth in detail the reasons therefor." The delivery of such written statement was therefore a condition precedent to the exercise of the power. Until that condition had been complied with the power to remove a person in the competitive class of the city service did not exist. [State ex rel. Hamilton v. Kansas City, supra; State ex rel. Prior v. Kansas City, 261 S.W. 112; State ex rel. Stomp v. Kansas City, 281 S.W. 426.]

It is said that the power conferred by Section 10 was either a power to remove "at pleasure," or a power to remove "for cause." If this text-book classification must be made, then we have no hesitation in holding that it was a power to remove for cause only. And that cause was the failure of the incumbent of an office to make the performance of his duties measure up to the requirement designated as "the good of the public service." The power to remove at pleasure is wholly incompatible with the spirit and the objectives of the civil service provisions of the Charter considered as a whole.

Following the prohibition that no person in the competitive class of the city's service could be removed without first having received a written statement setting forth in detail the reasons therefor, Section 10 provided as follows: "and at the option of the person who shall have been removed . . . a copy of such statement shall be filed in the office of the civil service commissioners, together with the reply, if any made thereto by the person removed, and the whole shall be filed and preserved in the office of such commissioners and be open to public inspection." It is said that in view of this last provision it is clear that it was not contemplated that the written statement setting forth the reasons for removal should be the basis of a hearing and removal for cause, because it was therein provided that the statement and reply thereto should be filed in the office of the civil service commissioners after the removal. It is not necessary to hold that the framers of the Charter intended that the written statement of reasons for removal of an incumbent should be in the nature of charges of misconduct or inefficiency, with respect to which he should be accorded a hearing and an opportunity to defend. They may have considered that the requirement that an officer having power to remove a person in the competitive class should give such person a written statement in writing setting forth in detail the reasons for the removal before removing him, which might be filed in the civil service commissioners' office and there be subject to public inspection would operate as an adequate restraint against illegal removals; for such a statement might be made the basis of a criminal prosecution against a guilty removing officer, or of a proceeding to remove him from office. But whatever the purpose may have been in providing that no incumbent of an office in the competitive class should be removed without first receiving the specified written statement, it is unquestionable that the receipt of such a statement was made, by the express language of the provision, a prerequisite to the exercise of the power to remove. And that is the phase of the matter which alone concerns us in this proceeding.

The plaintiff in the Pickett case, according to the allegations of his petition which for the purpose in hand we assume to be true, never received a written statement setting forth in detail the reasons for his removal. He was therefore never removed, at least until the adoption of the Charter of 1925, the effect of which we will consider in a subsequent paragraph. [Gracey v. St. Louis, 213 Mo. 397.] Notwithstanding he continued to be a dejure officer, he was by the attempted removal deprived of the physical possession of his office and the emoluments which were incident to the office.

"It does not follow because a public office created by law is not property in a precise sense, that a duly elected (or appointed) incumbent is at the whimsical sport of chance, caprice or of intermeddlers or of any form of illegal and unauthorized interference. . . . ``An office has a pecuniary value,Remedy. although primarily it is an agency for public purposes.' So that, given that one but ``reads his title clear to' a public office, he may not be rudely cast out from its solatium, its emoluments, except on due process and by the rigor of penalties denounced by positive law." [State ex rel. v. Sheppard,192 Mo. 509-510.]

Relator asserts that Pickett cannot be restored to that of which he was unlawfully deprived because the Charter of 1908 did not so provide. "It is written on the hornbook of the law, that the public and a party particularly aggrieved, may each have a distinct but concurrent remedy for an act which happens to be both a public and a private wrong." [Foster v. Commonwealth, 8 Watts S. 79.] The Charter prescribed a remedy for the public wrong; but because none was provided for the private wrong, it does not follow that one does not exist. In such case the common-law method of redress is impliedly given. [Endlich on Interpretation of Stats., secs. 463, 464.] That method is mandamus. [State ex rel. v. Miles, 210 Mo. 172; State ex rel. v. Walbridge, 153 Mo. 194; Spelling on Injunctions (2 Ed.) sec. 1576; 26 Cyc. 260.]

A remedy is said to be the means employed to enforce a right or redress an injury. [Bouv. Dict.] "When . . . primary rights and duties are public, that is, when they govern the relations alone of the State with individuals, the remedies for the violation thereof are public, and the larger portion of them are criminal. When the primary rights and duties are private, that is, when they are confined to relations of individuals with each other, the remedies are also private, or, as they are frequently termed, civil." [Pomeroy, Code Remedies, sec. 3, page 3.] As already noted, it is hornbook law that a public remedy and a civil remedy, with reference to the same wrongful act, may exist concurrently. The Charter of 1908 declared that an officer, having the power to remove, who removed a person in the competitive class of the civil service, in violation of charter provisions, should be subject to removal himself as well as to criminal prosecution. There is no intimation in any of the language used in that connection that the removal or prosecution of a guilty removing officer was intended as a "redress" of the individual injury that would be suffered by the officer unlawfully removed. How it could so operate is past understanding.

The construction placed upon Section 10, Article 15, of the Charter of 1908 in the foregoing paragraphs is not new. What is there said has been said before, and said more forcefully, in the well-considered opinion written by LINDSAY, C., in State ex rel. Hamilton v. Kansas City, supra, concurred in by all of the judges of Division One. The Hamilton case was followed in State ex rel. Prior v. Kansas City, supra, also decided by Division One; and it received express recognition and approval by Court en Banc in State ex rel. Stomp v. Kansas City, supra.

Nor is there any conflict between the cases just cited and Gregory v. Kansas City, 244 Mo. 534, as relator insists. In the latter case it was said:

"Section 10, Article 15, of said new charter, like Section 1176 of the Revised Ordinance of 1898, expressly prohibits the removal, reduction in grade or salary or transfer of any employee because of political or religious belief or opinions; in fact, said charter amplifies and extends those civil service rules contained in Section 1176, supra, and applies them to all persons employed by the city. It does not stop at employees of the waterworks department. It expressly protects appointees in the competitive class of the civil service by requiring notice of their intended removal and the reasons therefor, as well as other safeguards for their protection; but the Charter conflicts with Section 1176, supra, in that it does not permit the discharged employees to be reinstated by a trial conducted by certain officers of the city.

"The charter is a little vague, but seems to provide that before any civil service employee shall be discharged, the cause for which he is to be removed shall be investigated by the person authorized to discharge him, and the reason for his removal designated in the notice which the employee must receive before he can be discharged."

Now that language must be construed with reference to the matter that was before the court for determination. The question then being considered was whether Section 1176, Revised Ordinance of 1898 (which provided for a hearing before certain executive officers of the city in cases of removal of civil service employees, and for their reinstatement, if found to have been wrongfully removed), was repealed by the adoption of the Charter of 1908. Whether the provisions of Section 10, Article 15, of that charter made the receipt by a civil service employee of the written statement therein specified a condition precedent to his removal was not under consideration and was in no wise involved. It could be true, that "the Charter [of 1908] conflicts with Section 1176, supra, in that it does not permit the discharged employees to be reinstated by a trial conducted by certain officers of the city;" and equally true, "that before any civil service employee shall be discharged, the cause for which he is to be removed shall be investigated by the person authorized to discharge him, and the reason for his removal designated in the notice which the employee must receive before he can be discharged." The fact that the Charter did not provide for the reinstatement of illegally removed officers is, as we have endeavored to show elsewhere in this opinion, wholly without influence on the question of the power to remove.

II. "The universal rule is that, unless otherwise directed by the new act, the officers go out with the charter under which they held, and the officers under the new charter take their places whether under the same or a different name." [Commonwealth v. Moir, 199 Pa. 534, 549.] It is claimed by Pickett andAccrued the plaintiffs in cases similar to his now pending inRights. the Circuit Court of Jackson County that the offices which they respectively held under the Charter of 1908 were continued, and under the same names, in the 1925 Charter. Whether that claim is well founded we need not consider, as will presently appear. The new Charter was adopted on February 24, 1925; on that date certain sections of it, including Section 125, went into effect immediately; but the Charter as a whole did not become effective until April 10, 1926, and consequently did not displace the one of 1908 until that date. Section 125 just referred to is as follows:

"No person claiming to have been unlawfully removed or discharged from any office or position in the competitive class of the civil service prior to the first day of January, 1925, as the same existed under the provisions of the charter of Kansas City, adopted August 4, 1908, shall in any event, be entitled to restoration to said office or position after February 24, 1925, nor as such officer or employee, be entitled to any salary or compensation accruing after February 24, 1925.

"The fact that any person may have ceased the actual performance of the services or the discharge of the duties of any position by reason of any unlawful or invalid order of or attempt at removal or discharge shall constitute no exception to the provisions of this section. The provisions of this section shall take effect upon the adoption of this charter."

The adoption of this section on February 24, 1925, operated as an amendment of the Charter of 1908; it modified and supplemented the civil service provisions of that Charter, heretofore considered. The section, if a valid enactment, legislated out of office Pickett and others claiming to have been theretofore wrongfully removed.

Is Section 125 a valid legislative enactment? By the great weight of authority the power which creates a mere legislative office may, unless expressly restrained by some specific statutory or constitutional provision, remove the incumbent, not only by abolishing the office, but by an act declaring it vacant and making provision for the selection of his successor. [State ex rel. v. Davis, 44 Mo. 129; Attorney-General v. Jochim,99 Mich. 358; Commonwealth v. Moir, supra; State ex rel. v. Hyde,129 Ind. 296; Taft v. Adams, 69 Mass. 126; Bryan v. Cattell,15 Iowa 538; People v. Haskell, 5 Cal. 357.] For a statement of the reasons underlying such holding, we cannot do better than quote from a few of the many reported cases dealing with the legislative power in that respect.

"A mere legislative office is always subject to be controlled, modified, or repealed by the body creating it. In England, offices are considered incorporeal hereditaments, grantable by the crown, and a subject of vested or private interests. Not so in the American States; they are not held by grant or contract, nor has any person a private property or vested interest in them, and they are therefore liable to such modifications and changes as the law-making power may deem it advisable to enact. [3 Kent's Comm. (11 Ed.) 454, note c; 2 Washburn on Real Prop. 250; Primm v. Carondelet, 23 Mo. 22; Butler v. Pennsylvania, 10 How. 415; Smith v. The Mayor, 37 N.Y. 518; Conner v. The Mayor, 1 Seld. 285; People v. Warner, 7 Hill, 81, 2 Denio 272; Baker v. Utica,19 N.Y. 326; Lynch v. Mayor, 25 Wend. 680; Devoy v. Mayor, 39 Barb. 169; Canniff v. Mayor, 4 E.D. Smith, 430.]" — State ex rel. v. Davis, supra, l.c. 131.

"The generally accepted American view is that eligibility to office is not a natural right inherent in a citizen, that an office is not a grant or a vested right arising from contract, that it is not property in the rigid sense that an ox or an ass or land is property. [Throop's Public Officers, sec. 119.] And such has always been the view of this court from Primm v. City of Carondelet, 23 Mo. 22 (1856), down to State ex inf. v. Evans,166 Mo. 347 (1901). A public elective office is a public agency which, barring any constitutional inhibition, express or implied, may be abolished, curtailed or regulated by legislative enactment." [State ex rel. v. Sheppard, supra, l.c. 509.

"The Legislature may remove officers, not only by abolishing the office, but by an act declaring it vacant; as was done by Act No. 140, Sec. 13, Laws of 1891. [Throop v. Langdon, 40 Mich. 673; Auditors v. Benoit, 20 Id. 184.] And it may lodge the power to remove from statutory offices in boards or other officers, subject to statutory regulations. And, while it cannot remove incumbents of constitutional offices, it is not because of an inherent difference in the qualities of the office, but because the power to remove is limited to the power that creates. The constitutional officer is an agent of the government. There is the same lack of the ingredients of contract, and the same power to abolish the office or remove the officer by amendment of the Constitution. [City Council v. Sweeney, 44 Ga. 463; Butler v. Pennsylvania, 10 How. 402. . . .]

"While in many cases the power of removal is a limited and restricted one, to be exercised along given lines and with prescribed formalities, as already stated, it is not by reason of an inherent right of property in the officer, bringing him within the protection of the Fourteenth Amendment, but because of the limitations of the law." [Attorney-General v. Jochim, supra, l.c. 368, 369, 373.]

"The power of the Legislature to shorten the term of a statutory office, so as to effect an incumbent, once conceded, it is not difficult to see that there is no limit to such power. If it may shorten the term of a three years' office to two years, it may fix the term at one year or at one hour. In other words, the length of time a particular person shall hold is absolutely within the discretion of the Legislature. . . .

"The effect of the act we are now considering was to put an end to the appellant's term of office, and to provide a new mode of selecting some one to discharge, at least some, if not all, of the duties theretofore discharged by the appellant, and that whether the office of state supervisor of oil inspection is to be regarded as a new office or an old office under a new name, the intention to produce this result is plain, both from the title of the act and from its provisions. In order to end the appellant's term of office we do not think it was necessary to abolish the office held by him. As it is a statutory office, it was within the power of the Legislature to end the term of the incumbent at any time, and make provision for the selection of a successor." [State ex rel. v. Hyde, supra, l.c. 302, 303.]

According to the authorities cited, and many others, an incumbent of a public office may be removed therefrom by the power which created the office, without violating any right guaranteed him by the Fourteenth Amendment of the Constitution of the United States or by any of the general provisions of either State or Federal Constitutions which have for their purpose the safeguarding of the rights of the citizen in respect to the enjoyment of life, liberty or property. There was not, so far as we are advised, any specific statutory or constitutional provision which operated as an inhibition against the adoption of Section 125 as a part of their charter by the inhabitants of Kansas City. It must therefore be deemed valid and effectual.

How did Section 125 affect the Pickett case which was pending in the Circuit Court of Jackson County at the time of its adoption? The section did not upon its adoption operate retrospectively. [Secs. 7061, 7063, 7065 and 8861, R.S. 1919.] It did not therefore affect in any wise the rights which at that time had fully accrued to Pickett. It did, however, cut off his alleged continuing right to be restored to office, because it brought to an end his tenure of office; and his tenure having come to an end there could be no further accrual of salary in his favor. But the fact that Pickett's restoration to office is now precluded by Section 125 does not divest the circuit court of jurisdiction to proceed with the trial of the cause, and to award the plaintiff the other relief to which according to the averments of his petition he is entitled, namely, the salary of the office which accrued from the time of his removal up to February 24, 1925. In State ex rel. v. Walbridge, supra, a proceeding in mandamus to compel the restoration of an unlawfully removed officer and the payment of the accrued salary of the office, the relator's term of office expired during the pendency of the suit. But the fact that relator was no longer entitled to be reinstated in office was not thought to divest the court of jurisdiction to compel, in that proceeding, the payment of the salary that was due him. Section 7061, supra, which we deem applicable to the situation here, seems to put the matter entirely at rest. It provides:

". . .; nor shall any law repealing any former law, clause or provision be construed to abate, annul or in any wise affect any proceeding had or commenced under or by virtue of the law so repealed, but the same shall be as effectual and be proceeded on to final judgment and termination as if the repealing law had not passed, unless it be otherwise expressly provided."

III. The contention that the circuit court, in proceeding to hear and determine the Pickett case and the others referred to, is about to invade certain constitutional rights of Kansas City is based upon this allegation of relator's petition: "Dee Pickett and other discharged civil service employees rendered no service to the city after such discharge, but the city employed others who performed their work and were paid therefor; . .Payment of . to now compel such city to pay the said Dee PickettSalary to and others is in violation," etc. With reference toAnother. Pickett, assuming the allegations of his petition to be true, the language of BRACE, P.J., in State ex rel. v. Walbridge, supra, l.c. 203, is apposite: "The legal right to the office carried with it the right to the salary. The board by its wrongful act could not deprive him of this legal right. The right of a public officer to the salary of his office, is a right created by law, is incident to the office, and not the creature of contract, nor dependent upon the fact or value of services actually rendered." Now no constitutional right of Kansas City can be violated by compelling it to pay to Pickett what is lawfully due from it to him. Relator's loss results from the payments made from its treasury, in violation of its organic law, to the person whom its agents attempted to install in Pickett's office. The result of that wrongdoing cannot, in either law or morals, be visited upon Pickett. And what is true as to Pickett is true as to others similarly situated. There is no substance in relator's contention that its constitutional rights are about to be invaded.

IV. Owing to the dire financial straits in which it is said Kansas City will be placed in the event that Pickett and others succeed in the mandamus suits which are pendingProhibition. against it, we have gone fully into the merits of the contentions of both parties to those suits to see, if perchance, any matter is involved in them which lies beyond the jurisdiction of the circuit court. We have found that the trial and determination of the cases will probably call for the construction of certain provisions of the Charter of 1908; the construction and constitutionality of Section 125 of the Charter of 1925; the effect of the adoption of the latter upon pending suits; and the constitutional questions raised by Kansas City with respect to its being required to pay a second time the salaries incident to the offices involved. The trial of the cases will also necessarily call for a judicial determination of the truth of the allegations contained in the petition in each case, and also the sufficiency of the defenses, if any, which may be interposed, such as acquiescence, estoppel or abandonment. Now it is clear that all of these matters fall within the competence of a court of general jurisdiction; as to mere mode of procedure, it is not suggested, nor does it appear, that the circuit court has in any respect departed from long-established paths. If therefore, it does all that relator says it has threatened to do, it will not have exceeded its lawful jurisdiction in any particular. If it commits error, an adequate remedy through appeal or writ of error will be available to relator.

And of course the circuit court will not exhaust its jurisdiction in the trial and determination of one case. Neither the number of cases pending nor the aggregate amount involved operates to limit its power.

Our provisional rule herein is discharged and the proceeding dismissed. White and Atwood, JJ., concur; Blair, C.J., concurs in Paragraph IV and the result; Walker, J., dissents in separate opinion, in which Graves and Otto, JJ., concur. Leave toGraves, J., to file a separate opinion.