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    THE STATE ex rel. GEORGE H. HEIMBURGER, Appellant, v. ROLLA WELLS, Mayor of St. Louis.
    Division Two,
    March 31, 1908.
    1. JUDICIAL POWER: Mayor. The mayor of St. Louis is not a. judicial officer, nor under the terms of the Constitution, which) distributes the powers of government into the legislative, executive and judicial departments, is he a judge connected in any way with the judicial department of the State.
    2. -: -: Removal of Officer. The mayor of St. Louis, in hearing and deterimining charges against the Commissioner of Public Buildings, and in removing him from office for incompetency and neglect of official duty, does not act as a judicial officer, and he is not prevented by the Constitution from removing the officer, though in the hearing he may pursue quasi-judicial methods.
    3. -: -: Validity of Charter. Nor is the city charter, which gives the mayor power to remove an officer for cause, unconstitutional. It does not vest him with judicial power; and, besides, the Constitution itself (Sec. 7, art. 14) provides, that the General Assembly shall, in addition to other penalties,, provide for the removal of city and county officers.
    4. MAYOR: Removal of Officer: Law of Land. Charter provisions to the effect that the mayor is the chief executive officer of the city and expressly making it his duty to see that the city laws and ordinances are respected and enforced,- include-all laws and ordinances respecting his right and power to remove for misconduct and neglect of duty officers occupying positions in other departments of the city government and appointed by the mayor. And a removal by him, in pursuance to-such charter provisions and valid ordinances enacted in pursuance thereto, is not violative of the law of the land.
    5. -: -:--: Disqualification: Charges Preferred by Secretary. ..or is the mayor disqualified from hearing and determining the charges against the officer by the fact that they were preferred by his secretary or by himself. It does not follow that, because the charges' are so preferred, the mayor is prejudiced or biased, or has any other interest in the proceedings except to ascertain whether or not the charges are true. The only presumption that can be indulged, in the absence-of any showing to the contrary, is that he is acting in obedience to the organic law of the city which makes it his duty to see that the officers appointed by him are not derelict in their official duties.
    6. -: -: Charter Provisions: Repeal. The charter provisions of St. Louis, authorizing the mayor to remove, for cause, administrative officers appointed by him, are not unconstitutional, nor were they expressly or by implication repealed by the Act of April 23, 1877.
    7. -: -: Certiorari: Evidence. The writ of certiorari brings up only the record proper, and not the evidence. A writ of certiorari issued out of the circuit court and directed to the mayor, for a review of a proceeding had before him in which relator was tried upon charges preferred and removed for incompetency and neglect of official duty from the office of Commissioner of Public Buildings, is to be determined upon the record alone, and the evidence taken before the mayor will not be considered by the court.
    Appeal from St. Louis City Circuit Court. — Hon. Wm. M. Kinsey, Judge.
    Appjbmed.

      Leverett Bell and A. M. Frumberg for appellant.
    (1) The mayor has no judicial power, and the clauses in the St. Louis charter that attempt to confer such power on him are in violation of the State Constitution. Albright v. Fisher, 164 Mo. 56; State v. Stone, 120' Mo. 428; High, Ex. Leg. Rem. (2 Ed.), sec. 118; Dullam v. Wilson, 53 Mich. 393; sec. 1, art. 6, State Constitution; State v. St. Louis, 90 Mo. 19; State v. Brown, 57 Mo. App. 199; Magner v. St. Louis, 179 Mo. 502; State v. Walbridge, 69 Mo. App. 669; sec. 7, art. 14, State Constitution. (2) The mayor acted as prosecutor and judge on the trial of the relator in violation of the law of the land, and his judgment was and is a nullity. R. S. 1899', secs. 1602, 1612; Stockwell v. White, 22 Mich. 341; Oakley v. Aspinwall, 3 Comst. 547; Kansas City v. Knotts, 78 Mo. 359; Drainage & Levee Dist. v. Jamison, 176 Mo. 571. (3) The provisions of the charter of St. Lonis under which the mayor removed relator from office are not in harmony with the Constitution and laws of the State, and furthermore, were repealed by the Act of April 23, 1877. Ewing v. Hoblitzelle, 85 Mo. 75; Laws 1877, p. 346; E. S. 1899, sees. 8853 to 8856; State v. Walbridge, 119 Mo. 383; sec. 7, art. 14, State Constitution.

      Charles W. Bates and Benjamin H. Charles for respondent.
    (1) The writ of certiorari only brings up the record, and can only reach errors or defects which appear on the face of the record, of the officer or board to which it is issued, and which are jurisdictional in their nature; State ex rel. v. Smith, 101 Mo. 175; State ex rel. v. Walbridge, 62 Mo. App. 163; State ex rel. v. Smith, 176 Mo. 90; State ex rel. v. Balrer, 170 Mo. 390; State ex rel. v. Bland, 168 Mo. 7; Eailroad v. State Board of Equalization, 64 Mo*. 308; State ex rel. Parker-Washington Co*, v. St. Louis, 207 Mo. 354; State ex rel. v. Board, 108 Mo. 235; Ward v. Board, 135 Mo. 319; School Dist. v. Pace, 113 Mo. App. 134; State ex rel. v. Mulvihill, 113 Mo. App. 324. And evidence heard by such officer or board cannot be considered, even if it has been certified with the record proper. State ex rel. v. Walbridge, 69 Mo*. App. 666, and other cases cited, supra. (2) The power conferred upon the mayor by the charter is not repugnant to any constitutional or statutory provision. State ex rel. v. Walbridge, 119 Mo. 393; State ex rel. v. Sheppard, 192 Mo. 506; State v. Boyd, 196 Mo. 66, and other cases, supra. Eepeals by implication are not favored. State ex rel. v. Wilder, 197 Mo. 35, and other cases, supra. (3) The mayor had the power to remove relator for cause, after notice of the charges and specifications and upon a hearing. St.. Louis Charter, art. 4, secs. 5, 15, 16; State ex rel. v. Walbridge, 119 Mo. 394; Shuftleff v. United States, 189 U. S. 316. (4) The mayor was not disqualified. Mechera on Public-Officers, sec. 517, p. 341; Works on Jurisdiction, pp. 409, 410; State ex rel. v. Lupton, 64 Mo. 415; State ex rel. v. Slover, 113 Mo. 20'2; Mayor of Lexington v.. Long, 31 Mo. 371; State ex rel. Parker-Washington Co. v. St. Louis, 207 Mo. 354; People v. Diehl, 53 App.. Div. 645, affirmed 165 N. Y. 643; People v. Police Commissioners, 10 Hun 108, affirmed 76 N. Y. 613; People ex rel. v. Common Council, 85 Hun 601; Fuller v.. Ellis, 98 Mich. 96; Andrews v. King, 77 Me. 224; Planet v. Everest, 29 Mich. 19; Township Board v. Holihan, 46 Mich. 127; State v. Crane, 36 N. J. L. 397; State-v. Board, 36 N. J. L. 404; Ayres v. Newark, 49 N. J. L. 170; State ex rel. v. Common Council, 90 Wis. 612;-Foote v. Stiles, 57 N. -Y. 399 ; In re Ryers, 72 N. Y.. 14; Grundy Co. v. Tennessee, 94 Tenn. 294. Disqualification is not jurisdictional, and is purely statutory. Sutton v. Coale, 73 Mo. App. 522; Hockaday -v. Sturgeon, 65- Mo. App. 189; Huthsing v. Maus, 36 Mo-. 101 ;. State v. Anderson, 96 Mo. 247; State v. Callaway,. 154 Mo. 96; People ex rel. v. Jerome, 36 N. Y. Misc. 256; People v. Commissioners, 10 Kan. 106; People v. Williams, 24 Cal. 31; In re David Jones, 103 Cal. 397;-. People v. Compton, 123 Cal. 412; Patterson v. C'onlan,, 123 Cal. 453; Dreschel v. State (Tex.), 39 S. W. 648.
   FOX, P. J. —

This cause is before this court upon appeal by the relator from the action of the circuit, court of the city of St. Louis in overruling his motion to quash certain proceedings instituted before the respondent as ma3mr of the city of St. Louis, to remove the relator, and a judgment in favor of respondent rendered on February 6, 1905.

This is a proceeding on a writ of certiorari issued by the circuit court of the city of St. Louis at the relation of George H. Heimburger, for a review of a pro-needing had before the mayor of said city in the trial of relator for official incompetency and negligence as ■commissioner of public buildings. The charges were prepared and signed by James Gr. McConkey, who was the secretary to the mayor. The general charge was '“official incompetency and gross official negligence.”

Specification No. 1 was “respecting the poorhouse •contract, ’ ’ that is, it was charged concerning that subject that the relator (a) in approving and presenting to the board of public improvements plans which were palpably faulty in that the steel work required was far in excess of the proper amount, to-wit, about 63,000 pounds, thereby subjecting the city, to unnecessary expenses of from $1,500 to $2,000 for excessive steel, and about $600 additional for fire-proofing and plastering resulting therefrom; and all this after his attention was directly called thereto before completion of the plans and in ample time to have remedied the same, (b) In recommending a change, and inducing the contractors to expect a change, in the contract after the formal letting so as to substitute plans requiring 63,000 pounds of steel less than the contract called for, upon ■allowance to the city of an insufficient rebate; when said commissioner knew that any such change of a formally executed contract with or without rebate was 'unlawful and unauthorized, (c) Such proceedings resulted in unnecessarily delaying the completion of the steel work on said building.

Specification No! 2, “respecting workhouse contract,” The charge concerning this subject against relator was, (a) in directing a material alteration, for which there was no authority, of the contract after the letting thereof and commencement of work, said charge consisting in the substitution of concrete columns and Teams in place of iron, as called for by the contract; said concrete work being both inferior in quality and less in price by from $500 to $600 than the iron work required by the contract, (b) In causing to be inserted in the contract an unusual and unlawful provision, to-wit: “Concrete Floors. . . . Contractors may propose for any system that is acceptable to the commissioners, but must furnish complete plans and specifications for the same and must conform in results to that herein specified. If the steel framing as laid out does not conform to the system adopted, it must be changed to suit such system . . .,” which had never been inserted in any other of the city contracts, and under which it became possible to claim (though erroneously) that authority existed in ' the commissioner to make the alteration, (c) In unnecessarily delaying and permitting the delay of the work so that it could not be completed in the time required by the contract.

Specification No. 3, “respecting city hospital contract.” The charge against relator concerning this subject, was (a) in directing an unauthorized alteration in the contract in that part providing for brass work and ordering the substitution, without authority, of enameled cast iron, a material of less value, to-wit, about $800, and not adapted for the purposes intended, (b) In unnecessarily delaying and permitting the delay of the work on said building specified as marble work, where the metal above referred to in specification (a) was to be used, so that the same could not be completed in the time required.

Specification No. 4, “respecting the repairs in court-house.” The charge against relator concerning this subject, was (a) in wilfully permitting a departure from contract in that part relating to “mill work” by allowing in place of veneered work called for solid wood-work of much less value, to-wit, $300, and further, after having unlawfully permitted said change, in neglecting to take steps to exact a rebate and in declining to recommend the acceptance of a rebate on account of said inferior and cheaper work after his attention had been expressly directed thereto.

Specification No. 5, “respecting retention of unfit employee.” The charge against relator concerning this subject, was (a) in wilfully keeping in the employ of the commissioner of public buildings one Harry Hoel, after said commissioner knew that said Hoel was guilty of officially reprehensible and dishonest acts, and that his further retention was injurious to the city’s interest, to-wit: Said Hoel, on or about the 21st day of August! 1903, did present to John T. Henry (owner) or A. M. Baker (contractor) who was constructing a building for which the law required a permit, a notice under the seal of the building commissioner’s office, for the purpose of being shown to the police department, to the effect that no- permit was required to erect the building there being erected, when said act of Hoel was entirely outside the scope of his employment at that time, and was known by him to be unwarranted and was unlawful; said Hoel without warrant or authority having affixed the official seal of the building commissioner’s office to said notice.

Specification No. 6, “respecting failure to enforce insane asylum contract relating to painting and cleaning.” The charge against the relator concerning this subject,- was (a) in failing to enforce the provisions of contract requiring “all copper work of dome, gutters, down-spouts, etc., to be cleaned with acid and oiled with linseed oil, ’ ’ and in allowing the same to be painted instead of cleaned and oiled, as required by said contract, and in excusing, without authority, the contractor from cleaning the dome upon payment of an insufficient and inadequate rebate or allowance to the city, to-wit, the sum of $10, although the difference to be allowed (if any exemption were permissible) should have been much larger.

A copy of these charges and specifications was ■duly served upon relator, as shown by the abstract. The relator appeared both in person and by counsel at the hearing before the mayor; a large amount of testimony was heard both for and against him; witnesses were summoned in his behalf and testified for him, and the mayor, acting in official capacity, found the defendant guilty of charges and specification No. 1, clauses ;a, b and c; specification No. 2, clauses a, b and c; specification No. 3; specification No. 4 and specification No. 6, and thereupon made the following order: “And I therefore remove said George U. Heimburger from the office of Commissioner of Public Buildings •of the city of St. Louis.” And on the same day the mayor notified the relator of this action. On the next •day the relator sued out a writ of certiorari, in the petition for which'he asked the court to direct a transcript of the proceedings to be certified by the mayor; the writ, however, issued at his request, commanded not only a transcript of the proceedings, but also the evidence heard by the mayor. The respondent fully complied with the order of the court, and accompanied the transcript of the proceedings with a complete transcript of the evidence heard, objecting, however, to its introduction in evidence at the hearing. Upon the compliance of the respondent with the writ issued by the -circuit court and the filing of the transcript of the proceedings before him upon the charges against relator, the relator then filed in the circuit court his motion to quash such proceeding. This motion was taken up by the court and heard and considered, and on the 6th day of February, 1905, was overruled and judgment rendered for the defendant. A timely motion for new trial was filed by the relator, which was overruled on April 1, 1905, and from the action of the court upon this motion and entry of judgment in favor of respondent, the relator in due time and proper form prosecuted his appeal to this court and the record is now before us for consideration.

OPINION.

The record in this cause discloses that the errors complained of upon "which the appellant predicates his grounds for the reversal of this judgment, are as follows :

First. That the mayor has no judicial power and the clauses in the St. Louis charter that attempt to confer such power upon him are in violation of the State Constitution. In other words, it is insisted by learned counsel for appellant that the mayor, in the trial of the relator upon the charges preferred indicated in the statement of this cause, and his final order based upon such hearing, was exercising judicial power, which under the Constitution of this State he had no right to exercise, and in its last analysis the contention is that the mayor is without authority to hear and.dispose of the charges in the manner that, he did in this proceeding.
Second. It is contended that the mayor acted in this proceeding as prosecutor and judge on the trial of the relator in violation of the law of the land, and his judgment was and is a nullity.
Third. That 'the provisions of the charter of St. Louis under which the mayor removed relator from office are not in harmony with the Constitution and laws of the State, and furthermore such provisions of the charter were repealed by the Act of April 23, 1877.

I.

Directing our attention to the first proposition, relator calls our attention to the provisions of article 3 of the Constitution of this State distributing the power of government into three departments, that is, legislative, executive and judicial, and section one of article six of the Constitution vesting judicial power in the courts of the State. Upon these provisions of the Constitution learned counsel for appellant predicates his contention and seeks to draw-the.conclusion that, inasmuch as the mayor - is an executive officer, he cannot exercise the powers of a judge. It is sufficient tó say upon that insistence that in contemplation of the provisions of the Constitution wherein it vests the judicial power in the courts of the State, the mayor is not a judicial officer, nor under the terms of the Constitution is he to be denominated a judge in any way connected with the judicial department of the State. Manifestly one to be a judicial officer must in some way be connected with the judicial department. Judges of judicial tribunals contemplated by the Constitution must be the presiding’ officers of some tribunal whose jurisdiction or power is defined or prescribed by the Constitution or laws made thereunder.

The function exercised by the respondent mayor in the case at bar cannot be more clearly stated than it is by learned counsel for respondent in their brief, where it is stated that “it is very evident that when the mayor was presiding at the trial of relator he was not a judge presiding over any tribunal connected with the judicial department of the State. He was simply acting as mayor, the chief executive officer of the city, in a matter in which, under the charter and ordinances of the city, he was required to act, not as a judge, but as an executive officer. So that the Constitution and the laws of the State relating to the judicial department have no application. The functions he was exercising were merely quasi-judicial, and such is the law of this Státe.”

This proposition was substantially involved in State ex rel. v. Walbridge, 119 Mo. 383. In that case, the relator, who occupied the same position that the relator occupies in the case at bar, that of commissioner of public buildings, was charged before the mayor with certain derelictions of official duty and the relator in that case sought a writ of prohibition prohibiting the mayor from proceeding to try him on the charges which had been preferred against him by Robert E. Me-Math, president of the board of public improvements. One of the contentions in that case was substantially the same as in the case at bar, that is, “that the proceedings of the mayor, as aforesaid, are an infringement on the rights of the relator, and are an attempt", to exercise authority that the mayor does not possessy and are an encroachment upon the authority and jurisdiction of the courts of this State.” This court, after reviewing numerous authorities applicable to the subject in hand, speaking through Judge Sherwood, said: “In this instance, not only was the power of amotion of an offending officer for reasonable and just cause one of the common-law incidents and resultants of the incorporation of the city, but it was specifically conferred by the charter, and delegated to the mayor and enforced by ordinance. It is true that neither charter nor ordinance makes any provision for the means whereby the amotion of an appointed officer is to be effected; but where a grant of power is given, all the means necessary to effectuate the power pass as incidents of the grant.” The learned judge in announcing the final conclusions, in which Judges Gantt and Burgess of this division concurred, did so in this" language: “Guided by the foregoing authorities, we hold that the charter of the city of St. Louis, in the particular under discussion, is in harmony with the Constitution and laws of this State; that the mayor, being endued with power to remove the relator ‘for cause,’ could do so on notice given, charges preferred and full opportunity to be heard, and that the mayor has all the power necessary to carry into effect the> authority granted him by" the charter, and that the charges contained in the record are sufficient, if relator be found guilty thereof, to authorize his removal.”

Counsel for appellant in support of the insistence upon this proposition direct our attention to the cases of Albright v. Fisher, 164 Mo. 56; State ex rel. v. Stone, 120 Mo. 428; Magner v. St. Louis, 179 Mo. l. c. 502, and State ex rel. v. Walbridge, 69 Mo. App. l. c. 657-669. It is sufficient to say of those cases that we have carefully analyzed them and in our opinion they in no way conflict with the conclusions reached upon this proposition as heretofore indicated. While it is true that many of the cases in discussing the question as to the removal of an officer for cause, state that the cause justifying a removal is a judicial question to be determined from the facts, but by no means does it follow from this that the mayor in the exercise of the power conferred by the charter and ordinances of the city to hear complaints against persons occupying positions in other departments of the city government, and if the facts are sufficient, to order the removal of such officer, is violating the provisions of the Constitution to which our attention has been directed, simply because in the exercise of such powers he may be required to perform functions which are judicial in their nature, or quasi-judicial. The case of State ex rel. v. Walbridge, 69 Mo. App. 657, upon which relator chiefly relies in support of the point now under discussion, was one in which upon charges heard before May- ,or Walbridge against the superintendent of the house of refuge, the official after such hearing was ordered removed, and by a similar proceeding to the one in the case at bar, the cause reached the St. Louis Court of Appeals. That court, after fully reviewing the case, overruled the motion to quash the judgment of the mayor and entered judgment in his favor.

In Fuller v. Attorney-General, 98 Mich. 96, it was insisted not only that a member of the board of control was disqualified from hearing and .determining charges against an officer which he himself had preferred against the officer, hut the, point was also made that he was unauthorized to perform the judicial function of hearing such complaint. The court, in discussing that proposition, said: “To the proposition that removing hoards perform acts which are judicial in their nature, we readily assent. They must hear and determine, when the power is limited to removals for cause. So must boards of review, auditing boards, highway and drain officers, pardon boards, and in fact nearly every officer who has duties to perform; and it is also true that the action of all these is subject to review in courts of justice. None of them, however, belongs to the judicial department of government, nor can they be called judicial officers, though all performing acts in their nature judicial. Their acts are’ administrative.”

In the Walbridge case, 119 Mo. 383, this court directed attention to section 7 of article 14 of the Constitution, which provides that the General Assembly shall, in addition to other penalties, provide for the removal of the city and county officers, etc. It was then pointed out in that case that the charter provisions and ordinances in pursuance of it providing for a summary method of removing officers derelict in their duties, were simply in pursuance of the commands of that provision of the Constitution, and should be upheld upon that ground.

We deem it unnecessary to pursue this subject further. The right and power of the mayor to remove officers upon charges, after due notice of such charges and a hearing, has been fully recognized in State ex rel. v. Walbridge, 62 Mo. App. 162; State ex rel. v. Walbridge, 69 Mo. App. 657, and State ex rel. v. Walbridge, 119 Mo. 383.

II.

It is earnestly insisted by learned counsel for appellant that the mayor in this case acted as prosecutor and judge on the trial of the relator in plain violation of the law of the land, and that his judgment was and is a nullity.

The charter provisions of the city of St. Louis, article 4, section 5; article 4, section 15; article 4, section 16, and article 4, section 47, and the ordinances adopted in pursuance of such charter provisions, manifestly, if they are to be held valid, confer the right and power upon the mayor to remove officers occupying positions in other departments of the city government. The substance of these. charter provisions is to the effect that the mayor is the chief executive officer of the city, and it is expressly made his duty' to see that the laws of the city and the ordinances of the city are respected and enforced. In our opinion, as is contended by counsel for respondent, this would certainly include all laws and ordinances relative to the proper performance of the duties of the commissioner of public buildings, who is one of the appointees of the mayor.

It is earnestly insisted that the mayor was disqualified from hearing complaints against the relator which had been preferred by the secretary to the mayor. With all due respect to the learned and esteemed counsel for appellant we are unable to give our assent to this insistence. As already stated, the charter provisions imposed the duty upon the mayor to see that the laws of the city and ordinances of the city are respected -and enforced. In other words, it is made his duty to see that the officers appointed by him are not derelict in the discharge of their duties, and the mere fact that his secretary prefers the charges against one of the officers in one of the departments, or even if the mayor should make out the charges himself, it by no means follows that lie is prejudiced or biased or lias any other interest in the proceeding than to ascertain whether or not the charges are true. The mayor has certain duties imposed upon him and he is entitled to the presumption that he will conscientiously and in good faith discharge those duties. It certainly would be a very violent presumption that the mayor of a great city in the investigation of charges against officials acted from spite or any other improper motive. The only presumption that can be indulged, in the absence of any showing to the contrary, is that he is acting-in obedience to the commands of the organic law of the city of which he is the chief executive.

Mr. Works in his treatise on Jurisdiction, page 396, in discussing the proposition as to disqualification, thus states the rule, that in order to disqualify a judge, “some direct personal interest, that is, personal to the judge, and not such a general or public interest as affects all persons in the district or community contingently only and equally with him. ’ ’ The same author on page 396, says: “The bias or prejudice of the judge, or a desire on his part that one or the other parties shall succeed, is not sufficient to disqualify him.” “Mere interest in the question involved, there being no interest in the subject-matter of the action, does not disqualify him.” [P. 398 et seg.] “The rule of disqualification does not apply to officers not judicial, although their acts may call for the exercise of judgment and discretion.” [Pp. 409-410.]

In State ex rel. Norton v. Lupton, 64 Mo. 415, the mayor of the city himself signed the charges against the officer involved; however, no- point was raised as to his disqualification, the case being determined upon the question as to the definiteness of the charges.

In State ex rel. v. Slover, 113 Mo. 202, Judge Slover preferred charges against his own court stenographer, and thereafter removed him, and his action in removing such official was sustained by this court.

In Mayor of Lexington v. Long, 31 Mo. 369, the mayor of the city of Lexington presided in a street opening proceeding in which he was personally interested, and the point was made that he was disqualified. It was ruled by this court in that ease that no disqualification attached, and in announcing the final conclusion it was said by the court that the limitations upon the principle that no one should be a judge in his own case were determined by the statute providing when the statute should apply and that the statutes had not provided for the case in hand.

In the very recent case of State ex rel. Parker-Washington Co. v. St. Louis, 207 Mo. 354, the question of the disqualification of a member of the Board of Health to sit in the hearing of the questions as to whether certain works constituted a nuisance, was sharply presented to this court. It was insisted in that case that the Health Commissioner was disqualified from sitting as a member of the board on the ground that before the board had met to consider the case, that is to say, in the written notice issued by the Health Commissioner to the relator calling upon relator to answer the charge, he had stated in his opinion the works as operated constituted a nuisance and were detrimental to the public health and for that reason it was insisted that he was disqualified from sitting in such hearing. It was also contended in that case that in proceedings of this kind the party to be affected is entitled to the same degree of impartiality in the members of the board as the law prescribes for a juror who is to try a cause in a court of justice. In responding to this contention, this court said: “We do not agree to that proposition. Proceedings of this kind from necessity must be conducted with less strictness than the trial of a law suit in a court of justice. Such proceedings must be conducted honestly and fairly and with good common sense, but not necessarily with judicial strictness. If a juror has formed or expressed an opinion in a cause to be tried, we put him aside and call another, but if we put the Health Commissioner aside, whom will we call in his place? And if several other members of the board have seen the object complained of and have formed the opinion that it was a nuisance and said so, how is the city to proceed to condemn it? ... . If complaint is made, and instead of not issuing the notice at once he (the Health Commissioner) should deem it more prudent to visit the premises himself and see if there is reasonable ground for the complaint, it would be within the line of his duty to do so, and if, after inspection, he was satisfied that the thing was a nuisance, it would not be improper for him to so inform the proprietors. . . . The law, in express terms, authorizes the Health Commissioner ‘to declare’ the nuisance, but requires his condemnation to be approved by the Board of Health before it is put into execution.” And in further discussing the proposition which confronted the court in that case, it was said: “It is the duty of the Health Commissioner, when a matter injurious to public health is brought to his notice or comes under his observation, to declare it a nuisance by force of his own official judgment and give notice to the offending parties to appear before the board and show cause why the offense should not be abated, and he does not by discharging that duty disqualify himself from the performance of other duties imposed by law in furtherance of the samé subject.”

In our opinion the mayor was not disqualified from considering the charges preferred against the-relator in the case at bar. In reaching this conclusion we are not unmindful of the cases to which our attention has been directed by counsel for appellant. A careful analysis of those cases will demonstrate that they in no way conflict with the conclusions reached upon this proposition. In Kansas City v. Knotts, 78 Mo. 356, the judge was a party defendant legally served with process, and the case of Drainage and Levee Dist. v. Jamison, 176 Mo. 557, clearly shows that one of the commissioners was interested pecuniarily in the result of the proceeding concerning, the drainage district, for the -reason that his wife owned overflow land which was by the petition embraced within the drainage district. Hence, it is manifest that these cases are not out of harmony with the rules heretofore suggested from that reached in the case at bar.

III.

This brings us to the final contention urged by appellant, that is, that the provisions of the charter of St. Louis under which the mayor removed relator from office, are not in harmony with the Constitution and laws of the State, furthermore were repealed by the Act of April 23, 1877.

As to the first subdivision of this proposition, that the charter provisions conferring the right and power upon the mayor to remove officers are not in harmony with the Constitution and laws of this State, it is sufficient to say that that question was fully treated herein in disposing of the first proposition in this cause. What was there said in the discussion of the charter provisions and the Constitution of this State is equally applicable to the first subdivision of this proposition.

Recurring to the second subdivision of the third proposition, that is, that the charter provisions conferring power upon the mayor to remove officers upon charges and after due notice, were repealed by the Act of 1877, we find' that the sections .upon which relator relies were carried into the revision of 1899 as sections 8853 to 8856, inclusive. These sections provide a method for removal of public officers generally, both State and municipal, and it' is insisted by appellant that the charter provisions providing for a trial before the mayor of an officer of St. Louis, for neglect of official duty, are not in harmony with this act, which makes a general provision for a trial of a delinquent city officer. This proposition was in judgment before this court in Manker v. Faulhaber, 94 Mo. 430. The charter provision of the city of Sedalia conferred power upon the mayor, with the consent of the board of aider-men, to remove from office, etc. The proceeding in that' ease was for the recovery of damages against the mayor and others for maliciously removing the plaintiff from the office of city collector. The defendants, the mayor and others, justified their action under the provisions of the charter as heretofore indicated. Upon the trial the court refused to permit that section of the charter to be read in evidence and instructed the jury that, under the Constitution and laws of Missouri, as they existed in 1878, the mayor and board of aider-men of the city of Sedalia had no legal right or authority to remove the plaintiff from the office of city collector. It was expressly held in that case that this action of the trial court was erroneous, and that the provisions of the' charter of Sedalia were not affected by the act of 1877, and this court in the Walbridge case, 119 Mo. 383, unqualifiedly approved the ruling in the case in the 94 Mo., and said, concerning that ruling, “that it could not be otherwise regarded than as decisive of this case; since the charter of St. Louis of 1876 is no more inconsistent with the general' law of 1877 than was the charter of Sedalia on the point already quoted.” And in the same Walbridge case, in discussing State ex rel. v. Slover, 113 Mo. 202, this court said that in the Slover case “it was distinctly ruled that section 8233, Revised Statutes 1889, providing that an official stenographer might be removed without the intervention of a jury, for ‘incompetency or any misconduct in office,’ by the judge of the circuit court, on charges entered of record, and notice given, could stand as consistent with section 7127, aforesaid, and that the provisions of section 8233 might well be regarded as simply furnishing a cumulative remedy to that ordained in the former section, in relation to removals for failure to give personal attention to official duties.”

Manifestly the provisions of the Act of 1877 did not expressly repeal the charter provisions of the city of St. Louis conferring power of removal of officials upon the mayor, and applying the well-settled rules as to repeal by implication, it cannot be held that such charter provisions were repealed by the general law under the Act of 1877. “A repeal by implication must be by necessary implication. It is not sufficient to establish that the subsequent law or laws cover some, or even all, of the cases provided for by it; for they may be merely affirmative, or cumulative, or auxiliary. But there must be a positive repugnancy between the provisions of the new law and those of the old; and even then the old law is repealed by implication only pro tanto, to the extent of the repugnancy.” [Anderson’s Law Dict., p. 879.]

It may be also added that this court in the Walbridge ease, 119 Mo. 383, in no uncertain terms gave expression to its unqualified approval of the provisions of the charter of the city of St. Louis which conferred the right and power upon the mayor upon charges, after due notice and a fair and impartial hearing, if the facts warranted it, to order the removal of officers. In expressing such approval, this court said: “Surely nothing could more conduce to the good government and welfare of the city than that it should annex ‘ other penalties’ (than those enacted by the general laws of the State) for the punishment of its own officers, than that incompetent or unworthy officers should he removed in a more summary way than that afforded by the method of procedure provided in-’ section 7127 and its associate sections'.”

That the Act of 1877 to which our attention is directed, did not repeal expressly or by implication the charter provisions of the city of St. Louis conferring power upon the mayor to remove officials has long been settled by this court, and in our opinion correctly settled by the cases herein suggested; hence the ruling upon this proposition must be adverse to the appellant.

In the discussion of the legal propositions disclosed by the record in this cause we have ignored the evidence embraced in the record as taken before the mayor. It is well settled in this State, both by the Courts of Appeals and the Supreme Court, that the writ of certiorari brings up for review only the record proper and not the evidence. There is no provision of the statute by which it is provided that the evidence taken before the mayor in cases of this character may be preserved and made a part of the record, and being no part of the record it could not be reached by a writ of that character in the" case at bar, nor has it any place in this proceeding. This conclusion is in perfect harmony with the express rulings of the Courts of Appeal in State ex rel. v. Walbridge, 62 Mo. App. 162; State ex rel. v. Walbridge, 69 Mo. App. 657, and with State ex rel. v. Baker, 170 Mo. 383.

Entertaining the views to which we have herein given expression, it results in the conclusion that the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, J. —

license: Public Domain

text:
    HUGH J. BUNCH v. GEORGE H. WHEELER, Appellant.
    Division Two,
    March 31, 1908.
    1. PRIVATE ROAD: Reservation. An express reservation of apassway or private road in a deed is equivalent, for the purpose of creating an easement of a passway, to an express grant by the grantee to the grantor.
    2. -: -: Construction. Where the reservation of a passway through land conveyed to another, did not' define what width the passway shall have, and there was no agreement whatever as to its width, it is not fairly susceptible of a construction for a road way twenty feet in width.
    3. -: -: Servient Owner. By a deed conveying eighty-one acres of land with a reservation in the grantor for a private road or passway through the same, the grantee becomes the servient owner of the whole tract, subject only to the use by the grantor of a way over the land. The reservation divests the grantee as owner of the fee of none of the rights which as owner he possesses save and except the servitude and use of a passway by the grantor. It is not an exception of a specific strip twenty feet wide from the gr&nt of the land, but 'a reservation of a right of way along certain lines.
    4. -: -: Void for Uncertainty: Mandatory Injunction. The grantor in the deed “.reserved the right of passway near the original road through said land for a passway,” and the evidence showed there had long been an old road running through the tract near a spring on the east, in a westerly direction, through a horse lot as it was located at the time of the trial, and that at the time the land was conveyed there were two rail fences running from the horse lot, about one hundred feet apart on the west, and three hundred feet at the spring on the east, and within the strip thus inclosed was the “original road” referred to in the deed. Held, that the reservation was not void for uncertainty, but was á grant by the grantee to the grantor of the right to pass over the land along a route near to the then well-lsnown and long-existing road through the land, and that it is the right of the grantee to put his gates at the termini of said way to permit the grantor to pass through said premises, and to indicate where the way shall be, provided it shall always be “near” the old road, and was not a reservation of a specific way twenty feet wide, but it is certain enough to require the grantee to indicate a passway wide enough for a wagon, and team, near the old road,- having due regard to the nature of the soil, and to enjoin him (and his' grantee) from preventing plaintiff from "using the same in a reasonable and careful manner, and to require the grantor to shut and fasten the gates when he passes through, and to abstain from all injury to the crops and premises and the grantee’s other paramount rights of possession.
    Appeal from St. Clair Circuit \ Court. — Son. W. W. Graves, Judge.
    Reversed (with directions).

      Mann & Daniel for appellant.
    (1) The attempted reservation in the deed from, plaintiff Bunch to Fisher of a right of way through the premises conveyed was void for want of certainty. “The right of a way near the original-road” describes nothing and reserves^ nothing. Peterson v. Beha, 161 Mo. 513; Railroad v. Story, 96 Mo. • 621; Barrett v. County Court, 44 Mo. 202; Railroad v. Newsom, 54 Ind. 125; Sonnells v. Minnesota Lake,' 50 Minn. 556. (2) There is absolutely no evidence that plaintiff ever took possession under the deed, and .used and traveled the particular strip of land twenty'feet wide, described in plaintiff’s petition and in the judgment of the court. (3) The evidence utterly fails to support the judgment, in this: The judgment describes a definite strip of ground twenty feet wide, running through the premises of defendant in an irregular, meandering course, and forever prohibits defendant from 'obstructing this strip of land. If the judgment is allowed to stand defendant, in order to comply with it, must, if he wants to use his other lands, fence this twenty-foot strip into a lane, and leave it open at each eñd, giving plaintiff possession of, and title to, a private road, definitely located on the site of the old “original road” across defendant’s lands. The reservation -in the deed, taken alone, certainly does not support the judgment. The evidence of possession and use under the deed does not support the judgment because all plaintiff was ever permitted to use after deeding the land to Fisher was a gateway through the land, the location of which gateway is not definitely shown by the evidence.

      Jno. A. Gilbreath and J. C. Hargus for respondent.
    (1) The reservation in the deed was not void for want of certainty. Parol evidence is admissible to locate or identify things mentioned in the deed so as to satisfy the description therein. Bank v. Bates, 17 Mo. 583; Hart v. Rector, 7 Mo. 532; Landes v. Perkins, 12 Mo. 239; Bates v. Bank, 15 Mo. 309; Charles v. Patch, 87 Mo. 466; Hammond v. Johnston, 93 Mo. 214; Davis v.'"Watson, 89 Mo. App. 29; Lakeman v. Railroad, 36 Mo. App. 370; 14 Cyc., 1160; Kronenberger v. Hoffner, 44 Mo. 192; McAlister v. Honea, 71 Miss. 256; 1 Ballard on Real Prop., 113"; 3 lb. 212-215; 4 lb. 187; 5 lb. 200; 6 lb. 224; 7 lb. 183; 8 lb. 188; 9 lb. 175'; 10 lb. 162. (2) "Where the width of the right of way granted be not defined in the deed, it will be construed to be a grant of so much as is reasonably necessary for the purpose for which it is granted. Davis v. Watson, 89 Mo. App. 30; Washburn, Real Property (11 Ed.), 311; 14 Cyc., 1160, 1161. (3) If the way granted is not definitely located, practical location and use of such a way by grantee under his deed, acquiesced in by the grantor at the time of the grant and for a time subsequent thereto-, may operate as an assignment of the right and may be deemed that which it was intended to convey, and the same, in legal effect, as if fully described by the terms of the grant. French v. Hayes, 80 Am. Dec. 127; Wolf v. Dyer, 95 Mo. 545; Carter v. Foster, 145 Mo. 383; Davis v. Watson, 89 Mo. App. 30; Lawson on Contracts (2 Ed.), sec. 400; 14 Cyc., 1161; Atty.-Gen. v. Drummond, 1 Dr. & W. 353; Matthews v. Danbv, 26 Mo. App. 660: (4) Construction put on a deed by 'the parties may be proved by parol and ought to be followed, especially with respect to boundaries, when the language of the instrument is doubtful and the parties have agreed upon or acquiesced in a particular construction. Stone v. Clark, 35 Am. Dec. 372; Den v. Can Houten, 22 N. J. L. 67; Jennison v. Walker, 11 Gray 427; Perrine v. Jackson, 35 N. J. L. 143; Clark v. Wethey, 19' Wend. 320; French v. Pearce, 8 Conn. 439. (5') Where a right of way is granted without any description in the deed as to place, or where the description is uncertain, it becomes located by usage for a length of time. Jones v. Percival, 5 Pick. (Mass.) 485; Wynkoop v. Burger, 12 Johns. (N. Y.) 222; Osborn v. Wise, 7 O. & P. 723; French v. Hayes, 43 N. H. 32; O’Brien v. Schayer, 124 Mass. 211; 19 Am. and Eng. Ency. Law (1 Ed.), 99, 100, 101; 6 Ib.,x 143. (6) A reservation in a conveyance “of a reasonable right of way across the land conveyed” gives the owner of the dominant estate no right to inclose such right of way with fences. Sizer v. Quinlay, 82 Wis. 390; 33 Am. St. Eep. 57; Bakeman v. Talbot, 31 N. Y. 371, 88' Am. Dec. 279; Baker v. Frick, 45 Md. 337; Brill v. Brill, 108 N. Y. 517; Welch v. Wilcox, 100 Am. Dec. 115; Brown v. Meady, 10 Me. 391; Comstock v. Yan Deusen, 5 Pick. 163; Wellman v. Churchill, 92 Me. 193; 8 Ballard, Real Prop., 190. (7) A clause in a deed following the description of the land, “saving and preserving, however, from the operation hereof, the road running along the southerly line of said parcels,” reserves an easement therein in the grantor. Bolio v. Marvin, 130 Mich. 82; 10 Ballard, Real Prop., sec. 120; 9 lb., see. 176; 4 lb., sec. 150; Tarbut v. Grant, 94 Me. 371; Devine v. McRohan, 65 S. W. 799; Carlson v. Railroad, 38 Minn. 305 ,’ Hedderly v. Johnson, 42 Minn. 443.
   GANTT, J. —

This is a proceeding commenced in the circuit court of St. Clair county, to obtain a mandatory injunction, requiring defendant to remove liis fences across the alleged private roadway of plaintiff and enjoining defendant from obstructing the same, and to allow plaintiff the full and free use of said right of way, where the same passes through the enclosure and lands of defendant.

The cause resulted in a decree, wherein the court found that plaintiff, Hugh J. Bunch, in February, 1893, being then the owner in fee thereof, by warranty deed conveyed to one Samuel Fisher the northwest quarter of the southwest quarter and west half of Lot One of the northwest quarter and eleven rods and two and one-third feet, beginning at the southwest corner of the' north half of the northeast of southwest quarter of section two, running north to the left bank of a branch, then to follow the branch to the south line of said tract, then to follow a line west to starting point, all in section two, township 39, range 25', in St. Clair county, Missouri, containing eighty-one acres more or less, and in said conveyance said plaintiff, “H. J. Bunch, reserved the right- of passway near the original road through said land for a passway,” and the court found by its decree that the said reservation was of a specific right of way, twenty feet wide and twenty-one and seventy-six one-hundredths chains in length, beginning at a point in the Georgetown road south 54 degrees east of and 7.39- chains distant from the northwest quarter of said section two, township 39, range 25, and thence in irregular line ending at a point on tlie south line of the north half .of the northeast quarter of the southwest quarter of section 2, township 39, range 25, 5.15 chains east of the southwest corner of the north half of the northeast quarter of the southwest quarter of said section 2. The court found that the roadway above described runs near and on the original road through said land and was the same used by plaintiff before he sold the same to Fisher and the same he had used until fenced up. by defendant; that defendant at the time of the bringing of this suit and prior thereto had fenced up said passway, right of way and road, and refused to allow'plaintiff to travel over the same and denied plaintiff-’s right to said pass-way. The court by its decree forever enjoined and restrained defendant, his tenants, agents and servants from obstructing said rightnf way.. From this decree defendants have appealed to this court.

As this is an appeal in equity, all the testimony is before ns, and from it we glean that the plaintiff Bunch in 1893 conveyed the eighty-one acres.described in the petition to one Fisher. The . one acre' had a spring on it which rendered it of peculiar value to the eighty acres. It is conceded on all sides that there was an old road running through this tract from a point near the spring in a westerly direction, through the horse lot as it was located at the time of the trial of the cause on the circuit, to the Georgetown road. The circuit court found that this was the “original road” referred to in the deed and the evidence sustains that finding. At the time plaintiff conveyed this land to Fisher there were two rail fences running from the horse or barn lot easterly to points on the east line of the eighty acres near the spring. These fences, according to the testimony on both sides, were about one hundred feet apart at the horse lot on the west and three hundred feet apart at the spring on the east, and inclosed a strip of ground three hundred feet wide on the east end and narrowing to one hundred feet at the west end, and within the strip ran the “original, road” referred to in the deed. After he conveyed this land to Fisher, plaintiff continued to-travel this road with the consent of Fisher until the fall of 1894, by going through gates erected on either side. In the fall of 1894, Fisher closed this passway and allowed plaintiff to go through on another route. In 1895, Fisher conveyed the eighty-one acres to Wheeler, the defendant. In using the passway, while Fisher owned the land, plaintiff testified, he traveled between the two fences above referred to, “just anywhere” without confining himself to any specific twenty feet. After Wheeler purchased, he closed np the gates and refused to permit plaintiff to use the passway. Before bringing this suit, plaintiff took or sent Mr. Barr, a surveyor, to the lands and had him make a survey of the road twenty feet wide on what was pointed out to him by one Kiltman as the “original road.” He, Barr, could not tell where the old road ran, until they came to the meadow, but in the meadow he could see the old trail. When this witness was on the stand he was asked by defendant’s counsel, “if he could take the deed and locate the right of way or passway described in the deed. ’ ’ To which plaintiff objected and the court sustained the objection and defendant excepted. The evidence also disclosed that plaintiff owned a farm of about 515 acres east of this 81 acres, and a farm west of it.

The grounds upon which a reversal is sought are, first, that the reservation in the deed from plaintiff to Fisher of “the right of passway near the original road through said land for a passway” was and is void for uncertainty. Second, that if the reservation in the deed is void, then the testimony is entirely insufficient to show such a user of a definite route as would cure the defect in the reservation.

I. There is in this record no question of a way of necessity. Neither, in our opinion, does the record support the contention that the alleged passway was created otherwise than by express reservation in the deed of plaintiff to Fisher. This reservation in the deed from plaintiff to Fisher is equivalent, for the purpose of the creation of the easement of a passway, to an express grant by the grantee Fisher to plaintiff. We think the reservation is not fairly susceptible of the construction placed on it by the circuit court, to-wit, that it was a grant of a right of way over the specific strip of land twenty feet wide and twenty-one and seventy-six hundredths chains in length, as set out in the decree. ' The reservation does not define, whnl Uie width of the pkssway shall be'hndTeven if it had been competent to prove by parol what the width of the passway should be, there was no pretence that there was any agreement whatever as to its width. The survey made by Mr. Barr upon the information given him by Kiltman was wholly outside of the reservation, and of no legal efficacy. It did not and could not add to the grant contained in the reservation. There was no reservation of a right of way twenty feet wide and the marking of such a strip finds no basis in the deed of conveyance.

What then is a fair construction of this reservation? As already said, in our opinion it was not a reservation of a specific route or roadway twenty feet wide over and on the lines marked out by the surveyor, nor is it the intention of the parties that such passway was to be segregated from the lands conveyed so as to deprive the grantee Fisher of the title thereto, and control thereof. The reservation divested the grantee as owner of the fee of the land of none of the rights which as the owner he possessed, save and except the servitude and use of a passway by Bunch, the grantor, imposed by the reservation. By the deed Fisher became what is denominated in the law the servient owner of the eighty-one acres subject only to the use by Bunch, the plaintiff, of a way over the land. [3 Kent’s Com., 419; Washburn on Easements, 215; Kripp v. Curtis, 71 Cal. 62.] “A way is a right, the enjoyment of which requires no exclusive possession of the locus in quo,” by the owner thereof. [Randolph v. Montfort, 16 N. J. L. 226.] Elsewhere it is defined as “the right of going over another man's ground.” Obviously under all the authorities the reservation in the deed from Bunch to Fisher was not an exception of this way from tlW grant of the land of «the specific twenty feet, but/ivas a reservation only of a right of way along certairi lines. We th'mk-a,. fair and reasonable construction of this reservation is thaFFisher" ‘granted tWTBuneh a right to pass over the land along a route near to the then well-knotvn and long-existing road through this land. We are not inclined to hold that the grant was void for uncertainty, inasmuch as it was a mere easement or right to pass over the land and as the old road was a fixed monument or well-defined course, and the right of way granted, was to be near that original road, it was sufficiently definite, and that it was and is the right of the owner to put Ms gates at the east and west termini of said way to permit plaintiff to pass through said premises, and to indicate where the way shall be, provided always it shall be “near” (which is a relative word) the old road.

The decree of the specific way of twenty feet was in our opinion erroneous, and must be reversed with directions to the circuit court to require defendant Wheeler to erect a gate at the eastern terminus of said ldght of way, and another at the Western terminus on the Georgetown road, and to indicate the location of such passway wide enough for a wagon and team near the line of the old road, having due regard to the nature of the soil, and to enjoin defendant Wheeler from preventing plaintiff from using the same in a reasonable and careful manner and requiring plaintiff to shut and fasten the. said gates when he passes through the same, and to abstain from all injury to defendant’s premises and crops and other paramount rights of possession of said eighty-one acres of land.

Fox, P. J., and Burgess, J., concur.