This controversy arises out of a suit brought in the Circuit Court of Jackson County by one Dee Pickett, a former general clerk of the collection division of the Water Department of Kansas City, to compel, by mandamus, certain officers of that city to restore him to the clerkship formerly held by him, from which he claims he was illegally removed, and reinstate his name on the payroll of the employees of said city from and after the date, August 15, 1918, when he alleges he was illegally discharged, and to certify his name to the City Comptroller with a requisition upon the City Auditor to prepare and deliver to him a warrant for his salary, and to thereafter recognize him as the lawful general clerk of the collection division of the Water Department of said city. Pickett, in his capacity as a clerk of the Water Department, belonged to what is termed in the Charter of 1908, the classified service, in that he had been appointed after a competitive examination and held his position under the provisions of Section 10 of Article XV of said charter, the portions of same pertinent to the matter here under review being as follows:
"All appointments to positions and employments in the several departments of the city service shall, unless in this Charter otherwise provided, be made by the respective heads of such departments under and in conformity with the provisions of such rules, and such 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. 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 *Page 546 in writing of the reasons for his discharge. 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 persons; 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; and at the option of the person who shall have been removed, reduced, or transferred, a copy of such statement shall be filed in the office of the Civil Service Commissioners, together, with reply, if any made thereto, by the person removed, and the whole shall be filed and preserved in the office of said commissioners and be open to public inspection."
Pickett contends that he received no notice of his discharge as required by Section 10, and as an employee of the classified service he was unlawfully removed and is entitled by mandamus to be reinstated in and restored to the position he held in that service and to have his salary as such employee paid to him by the city from the date of his discharge to the present time — whether at the rate he was being paid when discharged or at the increased rate he alleges was subsequently paid for like services to his successor is not stated. Thereupon the circuit court, July 10, 1923, issued its alternative writ of mandamus, commanding the persons named as respondents to do the things prayed for in the petition. The officers of the city named as respondents in the mandamus suit, after numerous delays in that proceeding, on May 22, 1926, applied for and were granted a preliminary writ in prohibition by the Supreme Court, alleging numerous reasons for the issuance of the same.
We are concerned here in determining, first, the power of the officer, board or head of the department in which Pickett was employed, to discharge him without complying with the requirement of Section 10, that he be notified of his discharge; and second, if discharged in violation of this requirement, is he entitled to a restoration to the position by mandamus and a payment to him, by the city, of the salary which would have been paid to him if not discharged?
I. The nature of the duties required to be performed by Pickett were of sufficient public concern to entitle him to be classified at least as a quasi-public officer. [State ex rel. Guion v. Miles, 210 Mo. 127.] As such, therefore, his rights are to be determined. The right to hold office is not a natural right, and apart from special constitutional provisions no one has a private right of property in a public office. [Gantt v. Brown,244 Mo. 271; Gregory v. Kansas City, 244 Mo. 548; Taylor v. Beckham,178 U.S. 548; Nichols v. McLean, 101 N.Y. 526.] *Page 547
The office, therefore, is not the property of the holder; nor is it a vested right which, in the absence of a fixed tenure or other express legal inhibition, will prevent one from being removed therefrom, although appointed after a competitive examination. [Gregory v. Kansas City, supra.] The point has been stressed in contending that Pickett is entitled to be restored to the position formerly held by him, by reason of the manner in which he was selected and the fact that a provision of Section 10, of Article XV, required that he be notified of his discharge and that this, without more, confers in some manner not explained, the right to restoration and a payment of the salary he would have received if not removed. This contention embodies the assumption, in the absence of a provision in the charter authorizing an action for restoration, that a remedy may be had for a right which does not exist. A review of the civil service provisions of the Charter of 1908, will sufficiently define our views on this question. The purpose of a competitive examination under the civil service law is to prevent appointments to office through personal or political favoritism; and to substitute therefor a merit system. The elevation of the standard or the promotion of the efficiency of appointees is, it is true, one of the features of this system, but its controlling purpose is the betterment of the public service. Whatever rights, other than those enjoyed by persons holding positions under the general law, to which those may be entitled who hold positions under the merit system, must be determined from the civil service laws or ordinances under which the appointments were made. [People v. Kipley, 171 Ill. 44, 41 L.R.A. 775; People v. Mosher, 163 N.Y. 32; Rogers v. City of Buffalo, 123 N.Y. 173.] In the absence, inapplication or waiver therefore of the limitations in the civil service article (Art. XV, Charter 1908), it is the character of the tenure, as defined by the law, under which the position is held that is determinative of the rights of the holder thereto. Since the right to hold office is not a natural right or one guaranteed by organic law, the holder of same has no property interest therein, and it possesses none of the characteristics of a vested right, such as would prevent the appointing power from removing one holding a position under the civil service provision of the Charter of 1908. The right to hold the position to which Pickett asserts claim was created by the Charter. To this we must look in determining his right. This necessarily follows because of the absence of any inherent, vested or property right in him to the position. While his rights are to be determined by law it is the law creating the position and that alone which must be our guide. An examination of the charter having to do with the selection of employees under the Civil Service Act (Art. XV, Charter 1908), discloses that there is no express provision or any phrase, clause or sentence, which by reasonable implication under *Page 548 the rules of construction, can be held to authorize one removed from a position, as in Pickett's case, to invoke mandamus or other coercive proceeding to secure restoration to such position and compensation during the time of such removal. On the contrary the framers of the charter, while recognizing the probable beneficial results that would accrue to the city by the selection of its employees by competitive examinations, also recognized the fact that while they might fix the tenure of said employees, define their compensation and provide for their restoration in the event of removal in violation of the prescribed limitations, they did not do so. In failing to do so and in expressly penalizing the city officials for improperly discharging employees the reasonable rule of interpretation must be applied that it was not intended that discharged employees should have the right to be restored to their positions and compensation. This conclusion accords with right reason as we view the facts. Had a fixed tenure, a right to restoration and compensation been prescribed it would have constituted a grant of power to employees which would have been purely unilateral. The city would have been bound by this grant while the employees would have been free to abandon their employment at will. However, it is not material to a proper determination of the matter at issue whether this was the reason for the omission from the charter of a provision for the restoration of employees discharged from the classified service. It is enough to say that it was omitted, and that it was an intentional omission is evident from the sections referred to, which prescribe the course that shall be pursued in the event of discharges from the service not in conformity with the limitations of the provisions of Article XV of the Charter of 1908. The facts demonstrate and the law declares that Pickett could have no legal interest in the position he had held of such a nature as to authorize him to maintain an action to be restored to the same. Having in law no right to or interest in the position, a failure to furnish him with a written statement in detail of the reasons for his removal cannot be construed as conferring such a right or investing him with such an interest. At most it was a violation of one of the requirements of Section 10, Article XV, for which the discharging officer rendered himself liable to the penal provisions of said article. To rule otherwise necessitates the conclusion that a removal by a discharging officer of an employee of the classified service, in disregard of one of the limitations of Section 10, creates in the person discharged such an interest in the position he held as to authorize him to institute an action for its recovery and the compensation incident to the same. To render such a construction even remotely possible it is necessary to read into the charter a provision authorizing such employees to sue for restoration. It is needless to say that no rule of interpretation authorizes such a procedure. *Page 549
II. The petition for mandamus sufficiently defined the petitioner's legal status and relation to the position he had held and to which he sought to be restored to apprise the circuit court of the facts in the case upon which the petitioner based his grounds for relief. These grounds stated no cause of action, nor were any facts expressed or which might be implied from those stated, which would enable a cause of action to be stated. In this state of the record the circuit court for this reason, as well as others to be stated later, should have declined to exercise jurisdiction and have refused to issue the alternative writ. Not only, therefore, was no cause of action stated, but it was demonstrated by the averments made that none could be stated. This being true, while the general jurisdiction of the circuit court in proceedings by mandamus is beyond question, where it is evident, as it was from the pleadings in this case, that no right of action existed for which a remedy could be granted, the attempted exercise of jurisdiction was a proper subject for the supervisory and prohibitive powers of this court.
This court in many well considered cases has held that where a plaintiff's petition fails to state a cause of action the court is without jurisdiction to proceed in the case even though it may have jurisdiction over the subject-matter.
Judge SHERWOOD, in Weil v. Greene County, 69 Mo. l.c. 286, thus discusses and disposes of this question: "None of the cases cited for plaintiff were those where the petition failed to `state facts sufficient to constitute a cause of action.' Where such a failure occurs, it is as fatal as the lack of jurisdiction over the subject-matter of the action, and, like that, may be taken advantage of, either in the lower court, or here, though no attention was called to the matter in the lower court."
The Weil case states the rule generally. As more concretely applicable to the matter at issue the reasoning of FARIS, J., in State ex rel. Fenn v. McQuillin, 256 Mo. 705, is apposite as sustaining the conclusion that where a petition states no cause of action and it is clearly apparent that none can be stated prohibition will lie and should be granted by this court. The language employed by the court in the Fenn case was as follows: "If in a proper case where the petition below was before us, we had from an examination of it found no jurisdiction in the courtnisi to hear and determine the cause set out therein, and had found that no amendment could be made by which jurisdiction could be conferred; then we would not hesitate to make the preliminary writ herein permanent. . . . Before prohibition will lie on the ground of a lack of jurisdiction, the court below must have so ruled as to make manifest a claim of jurisdiction." That claim was made manifest by the action of the trial court in the instant case. *Page 550
III. We have shown that the petition for mandamus upon which and in accord with which the alternative writ was issued not only states no cause of action, but upon the issue attempted to be made no cause of action can be stated. This, as we have demonstrated, will authorize the exercise of the prohibitive power of this court. Other reasons supplemental perhaps to that stated, but nevertheless potent in determining the duty of the Supreme Court, may not inappropriately be stated. The moving purpose of the trial court's action, as disclosed by the petition and the alternative writ, was the restoration of Pickett to his former position. This in the absence of a law constitutional, statutory or municipal, cannot be done. Compensation is but an incident to restoration. If no right exists for the latter, no remedy can be afforded for the former. Mandamus, as has been graphically stated, is a hard-and-fast writ; coercively compelling in its nature, it is mete therefore that a trial court, cognizant from the pleadings of the lack of authority for its issuance, should, like Agag before Samuel, "move delicately" before acting. In short, no power existing to act upon the application for restoration, none can be invoked to compel compensation. [St. Louis County Court v. Sparks, 10 Mo. 117; Selby v. Portland, 14 Or. 243, 58 Am. Rep. 307; 19 R.C.L. p. 940, sec. 240.]
Another reason not to be overlooked as supplementing the Supreme Court's power to stay this proceeding is the lack of timeliness in applying for this writ. Almost five years elapsed between the date of Pickett's discharge and his application by mandamus for restoration. This delay, alone patently apparent upon the record, should have prompted the trial court to refuse to issue the alternative writ. Whatever protest he may have made at the time of his discharge is immaterial, in the face of the fact that for years thereafter he contented himself with inert indifference to any claim he might have made for restoration. It does not matter, it is true, that his timely action would not have added an iota to the legal strength of his claim; if timely it would at least have given the trial court ground for the presumption that the action was in good faith for the establishment of what the petitioner believed to be a right. The course pursued left the trial court no ground for this presumption. One discharged from a position for whatever reason, who makes no effort to secure restoration thereto, but who sits idly by or seeks and pursues another vocation until years have elapsed should be held, if no stronger reason existed, to have abandoned any claim he may have had to the position. This evident abandonment, while not furnishing in itself grounds for prohibitive action by this court, should, with the other supplemental reasons to that of a lack of cause of action, have stood out as a datum post to warn the trial court against its abuse of jurisdiction in the issuance of the alternative writ. [Cote v. Biddeford, *Page 551 96 Me. 491, 90 Am. St. Rep. 417; People v. Police Board, 174 N.Y. 450, 95 Am. St. Rep. 596.] If a discharged employee, whether in the general employment or in the classified service of the city, be permitted by the courts to successfully pursue a like Fabian policy in prosecuting a claim against the municipality and no limit is placed upon the time within which such claims may be prosecuted, suits as stale as the subject of bimetallism and as numerous as fakers at a country fair will throng the courts of the city to the obstruction of their legitimate business. Nothing can be more sacred than public funds, national, state, or municipal; wrung from the people by taxation, they should be expended for the purpose for which they were collected, viz: the maintenance of the body politic and the general welfare of the people. If every Carker who at sometime has been in the city's employ and who claims to have been improperly removed therefrom is permitted by the court, in the absence of a cause of action, and after years of complacent indifference and a change has been wrought in the organic law of the city, to institute and maintain an action for restoration to the position he once held and compensation during the years that have elapsed, the taxes now imposed for the support of the municipal government will be inadequate to meet demands of this character of claims alone.
IV. Another fact of more than passing importance exists which should have caused the trial court to refrain from assuming jurisdiction in this case. It is this, the impossibility of the trial court entering a judgment which would have rendered the writ of mandamus effective. It is conceded that the right to prosecute an action of this character was foreclosed upon the adoption of Section 125 of the Charter of 1926. If it be granted, as it may be, on account of the time when Pickett brought this suit, that whatever rights he then had are to be adjudicated under the Charter of 1908, the adoption, during the pendency of the suit, of the new charter containing Section 125, had the legal effect to abolish the position to which Pickett now asserts a claim. If therefore a peremptory writ be issued herein there remains nothing upon which it can act. Under such circumstances a judgment of restoration would be a nullity. This is true because the peremptory writ must follow the alternative writ and must be enforced in the terms under which the latter was issued or not at all. There is no halving of remedies in the rendering of a judgment of this character. [School Dist. v. Lauderbaugh,80 Mo. 190; State ex rel. v. Police Comsnr., 80 Mo. App. l.c. 219, and cases; State ex rel. Porter v. Hudson, 226 Mo. l.c. 264, and cases.] Courts, when confronted with facts similar to those at bar, have ruled that where the office has been abolished from which a party has been removed, he is not entitled to mandamus to restore *Page 552 him to the same. [Hill v. Boston, 193 Mass. 569; Breckenridge v. Scannell, 160 N.Y. 103; People ex rel. v. Bermel, 51 Misc. (N.Y. Supp.) 75; People ex rel. v. Ennis, 18 N.Y. (App. Div.) 412.]
V. Latitude in the discussion of the Supreme Court's right to prohibit the actions of lower courts when abusing their jurisdiction has been indulged in because of the great importance of a just, correct and hence a right determination of the question at issue. Without intending a lack of respect for the opinions of those who may differ from the conclusions here reached, it may be finally said if the facts in this case do not disclose a clear and unequivocal abuse of jurisdiction on the part of the trial court then none can exist under any possible state of facts. This being true the preliminary writ of prohibition should be made absolute.
A critical review of the cases in which restorations to office have been sustained or rights to compensation therein have been recognized will disclose in each instance that the proceeding was sanctioned, either by a constitutional, a statutory or a charter provision. We except from this category the Hamilton case, 259 S.W. (Mo.) 1045, the Prior case, 261 S.W. (Mo.) 112, and the Langford case, 261 S.W. (Mo.) 115, in which opinions were rendered by Division One of this court, which in so far as they ignore the governing rule in cases of this character and thus impliedly overrule the Gregory case, 244 Mo. 548, which asserts the law correctly, are not in accord with the current of decisions here and elsewhere.
A rule absolute should therefore be made prohibiting further action by the trial court in the mandamus proceeding. Graves,J., concurs in this opinion and reserves the privilege of giving further reasons why the Hamilton case should be overruled; Otto,J., concurs.