Francis v. Blair

• Decision Date: 21 June 1886
• Parties: Francis, Mayor, Appellant, v. Blair et al
• Court: Missouri Supreme Court

1 S.W. 297

89 Mo. 291

Francis, Mayor, Appellant, v. Blair et al

Supreme Court of Missouri

June 21, 1886

Appeal from St. Louis Circuit Court. -- Hon. A. M. Thayer, Judge.

Reversed.

James O. Broadhead and Leverett Bell for appellant.

(1) The board of police commissioners is an administrative one and cannot remain continually in session. During the periods intervening between the sessions, it must have a mouth-piece to issue such orders as are necessary to carry out the policy of the board. This duty, under the police acts of 1861 and 1863, falls to the president of the board. It is inherent in his office. See Laws 1863-4, 476; State, etc., v. St Louis County Court, 34 Mo. 567. (2) The city charter (article 4, sec. 15) makes the mayor the chief executive officer of the city and it also provides (sec. 16) that he shall take care that the laws and ordinances of the city are respected and enforced in the city. These charter provisions had the effect to repeal so much of the law establishing the police force as took away from the mayor all authority and control over the force, and so much of the act as authorized the board of police commissioners to enforce the ordinances passed by the city of St. Louis which may be properly enforceable by a police force. The power given to the mayor under the charter of 1876 is complete and general.

Given Campbell, A. & J. Lee and J. M. Holmes for respondents.

(1) The constitution of the board should be accurately noticed, for there is a clear distinction between a member of the board and a police commissioner. People v. Commissioners, 5 Abb. Pr. 241. (2) A president as such has no power except to preside over the deliberations of the body of which he is president, whether that body be a legislative, an executive or an administrative body. Ang. & Ames on Corp., 298, 299; Morawetz on Corp., 249, 251, 252; Hodge, Ex'r, v Bank, 22 Gratt. 58; Bank v. Loan & Trust Co., 14 Wis. 330, and cases cited; Titus v. Railroad, 37 N. J. L. 98. (3) The intent of the legislature to vest the control of the force in the state remained as before, and this was expressly held by this court in State v. St Louis County Court, 34 Mo. 567. (4) When the board adjourns, the connection of the mayor with the force is at an end, and he is prohibited from interfering with it. People v. Commissioners, 5 Abb. Pr. 241. (5) It is not claimed for the vice-president any power by reason of his office other than specially given him by the act. So long as every act to be performed is subject to the approval of the board his act derives its authority from their approval, and not from any power of the vice-president. The board is required by law to exercise its duties at all hours of the day and night, and the manner of the exercise of those duties is nowhere prescribed, there being in the law no special duty imposed upon the chief of police or any other of its employes. In the absence of statutory provision to that effect, it had the power to appoint such agents as it saw fit, to enable it to perform its duties. Whart. on Ag. [Ed. 1876] secs. 29, 33; Morse on Banks & Banking, 128; Morawetz on Corp., secs. 249, 252; Floyd Acceptances, 7 Wall. 676; Wilcox v. Jackson, 13 Pet. 513; Walsey v. Chapman, 101 U.S. 755; Titus v. Railroad, 37 N. J. L. 98; Bank v. Loan & Trust Co., 14 Wis. 330; State v. Gates, 67 Mo. 143.

OPINION

Henry, C. J.

The appellant, on May 5, 1886, filed in the St. Louis circuit court a petition for an injunction, in words and figures as follows: "Plaintiff states that he is the mayor of the city of St. Louis, duly elected to said office and in possession of the same, and in the exercise of the duties, functions, rights, privileges and powers pertaining and belonging to said office. That the defendants are members of the board of police commissioners of said city of St. Louis, duly appointed and commissioned to said board under the law in such cases made and provided. That the said board of police commissioners of the city of St. Louis was created and exists by virtue of eleven certain acts of the general assembly of the state of Missouri, which acts are approved respectively March 27, 1861; December 12, 1863; February 5, 1864; January 25, 1865; February 18, 1865; January 23, 1866; March 15, 1866; March 13, 1867, March 24, 1873; February 17, 1875; and March 23, 1875, and that the provisions contained in the above enactments, are compiled and printed at pages 1,527 and following of the second volume of the Revised Statutes of Missouri in 1879. That it is provided by section 3 of the act of March 27, 1861, above referred to, as amended by section 1 of the act of December 12, 1863, also above referred to, that the board of police commissioners of the city of St. Louis shall consist of four commissioners, with the mayor of said city for the time being, or whosoever may be lawfully acting in that capacity, who shall be ex-officio president of said board, and said board shall appoint one of their members as vice-president, who shall act during the absence of the president. It is further provided by the laws aforesaid that the four commissioners, being the commissioners other than the mayor of St. Louis, shall be appointed by the governor of the state of Missouri by and with the advice and consent of the senate; and it shall be the duty of said police board within the city of St. Louis to preserve the public peace, prevent crime and arrest offenders, protect the rights of persons and property, guard the public health, preserve order at elections, at public meetings and places of public occasions, prevent and remove nuisances, provide police protection at fires, protect emigrants and travelers, and enforce the observance of laws relating to elections, to Sunday, to pawnbrokers, gamblers, intemperance, lotteries, vagrants, disorderly persons, and the public health, and to enforce all ordinances of the city and laws of the state which may properly be enforceable by a police force; and to make rules and regulations not inconsistent with the above acts for the appointment, employment, uniforming, discipline, trial and government of the police, which shall be obeyed by the force on pain of dismissal, or other lighter punishment, as the board may adjudge. The plaintiff states that since he has held the office of mayor of St. Louis he has attended the meetings of said board, and has at all times been and is now ready and willing to act with said board, and to exercise the power, duty and authority imposed and conferred on him as mayor of the city of St. Louis by the above mentioned acts, and that he has duly qualified as a member of said police board by taking and filing the oath prescribed in section 2 of the act of March 27, 1861, aforesaid. That at a regular meeting of said board of police commissioners, held in the city of St. Louis, on the fourth day of May, 1886, the board adopted a preamble and resolution, in words and figures as follows:

"'Whereas, in the opinion of this board, it is the meaning and intention of the law establishing the metropolitan police system in this city that the entire management and control of the department should be in the hands of the board of police commissioners, and through them, in such one of their number as they might select as vice-president; and,

"'Whereas, such has been the uniform custom of the department from the beginning; now, therefore, to remove any misapprehensions which may exist in the premises, rule number 12 of the manual is hereby declared to mean that the vice-president is the executive officer of the board, and shall at all times, when the board is not in session, have the entire management and control of the department, subject always to the approval of the board; and, further, that the chief of police shall, between the meetings of the board, receive and obey the orders of the vice-president only. That rule 12 of the manual, above referred to, is as follows:

"'Rule 12. "The acting president of the board shall have a general supervision, and it shall be the duty of the chief of police and commanders of districts to keep him well informed on all police matters."'

"That the above preamble and resolution were adopted by the votes of the four defendants herein, against the protest and vote of the plaintiff, and that the said defendants are now enforcing the same. That the said preamble and resolution are invalid and illegal, and of no force and effect, because the same are in violation of and inconsistent with the acts of the legislature above referred to, constituting and governing said board; and that the effect of the same and the enforcement thereof is to strip the plaintiff, as mayor of St. Louis, of the power and authority conferred on him by the acts of the legislature aforesaid, and to deprive the people of St. Louis of the control they are authorized by their mayor to exercise, under the laws aforesaid, over the operations of said board and the management of the police force in said city. The plaintiff prays that the defendants, and each of them, may, by the order of the court, be restrained and enjoined from further enforcing said preamble and resolution, and that the same may, by the judgment of this court, be declared void, invalid and of no force and effect, and for such other and further relief as he is entitled to."

The petition was duly verified, and the circuit court made an order on the defendants therein named to show cause on May 8, 1886, why the injunction should not be granted. On the day named the defendants made return to the rule as follows:

"Now come the defendants in the above entitled cause James L. Blair, W. H. Lee, Frank Gaiennie, by attorney, and O. P. Gooding, in propria persona, and for a return to the rule heretofore issued by ...