State v. Kimmel

• Decision Date: 02 April 1914
• Parties: STATE ex rel. WANDER et al. v. KIMMEL, Police Judge, et al.
• Court: Missouri Supreme Court

165 S.W. 1067

256 Mo. 611

STATE ex rel. WANDER et al. v. KIMMEL, Police Judge, et al.

Supreme Court of Missouri.

April 2, 1914.

1. MUNICIPAL CORPORATIONS (§ 187)—POLICEMEN—PENSIONS.

Grant of pensions to police officers of a city and public service employés, other than firemen, is against the public policy of the state.

2. WORDS AND PHRASES—"PENSION."

A "pension" is a stated allowance out of the public treasury, granted by the government to an individual or to his representative for his valuable services to his country, or for compensation for loss or damage sustained by him in the public service. It is an annuity from the government for services rendered in the past.

3. WITNESSES (§ 26)—FEES—POLICE OFFICERS —"CITY OFFICER."

Rev. St. 1909, § 9825, provides that members of the police force of cities are declared to be officers of such cities under the charters and ordinances thereof, and also officers of the state, and shall be so deemed and taken in all courts having jurisdiction of offenses against the ordinances of such cities. Held, that a policeman of St. Louis was a "city officer," within a city ordinance providing that witnesses, other than city officers, summoned as witnesses in a suit before a police justice, and attending at the trial, shall be entitled to 50 cents for each day's attendance, etc.

4. WITNESSES (§ 26)—FEES — GENERAL ASSEMBLY—JURISDICTION—ORDINANCES.

Under St. Louis City Charter, art. 3, § 26, cl. 8, providing that the mayor and general assembly shall have power to establish the salaries of all officers and the compensation of all employés, except day laborers, and jurors and witnesses, the general assembly was authorized to pass an ordinance declaring that all witnesses, city officers and prosecutors excepted, summoned in a suit before a police justice

and attending at the trial, should be entitled to fifty cents for each day's attendance.

5. MUNICIPAL CORPORATIONS (§ 871)—PENSION FUND — PUBLIC MONEY — DISBURSEMENT.

Rev. St. 1909, § 3459, as amended by Laws 1913, p. 192, providing that members of a police relief association shall be allowed witness fees in all cases in all courts of record and in municipal and city police courts, which shall be collected solely for the benefit of their relief association, was unconstitutional, as creating in part a pension fund out of public moneys collected by taxes and imposts.

6. STATUTES (§ 79)—SPECIAL LAWS—PRIVATE CORPORATION — SPECIAL OR EXCLUSIVE RIGHT OR PRIVILEGE.

The act was also unconstitutional as a special law granting to a corporation a special or exclusive right or privilege, in violation of Const. art. 4, § 53, cl. 26.

7. MUNICIPAL CORPORATIONS (§ 873)—STATUTES — GRANT OF PUBLIC MONEY FOR PRIVATE USE.

It is also violative of Const. art. 4, § 46, denying, except in case of public calamity, to the General Assembly the power to make any grant or authorize the making of any grant of public money or thing to any individual, association of individuals, or municipal or other corporation whatsoever.

8. STATUTES (§ 102)—CONSTRUCTION—SPECIAL LAWS—CLASSIFICATION.

All the police officers of the St. Louis police force not being members of the St. Louis Police Association, nor authorized or permitted to become such, Rev. St. 1909, § 3459, as amended by Laws 1913, p. 192, providing that members of such relief association shall be allowed witness fees for the benefit of the association, was not based on a proper classification, and was therefore an unauthorized special law.

9. MANDAMUS (§ 10) —OFFICERS—RIGHT TO SUE.

Advice of the city counselor, given to a judge and clerk of the police court of the city of St. Louis, that Rev. St. 1909, § 3459, as amended by Laws 1913, p. 192, providing for the payment of witness fees to policemen, members of the St. Louis Police Association, for the benefit of the association, was unconstitutional, was sufficient justification for such officers' refusal to tax and allow such fees, and to permit them to make a test case.

In Banc. Mandamus by the State, on relation of Arthur E. Wander and the St. Louis Police Relief Association, against Karl Kimmel, Judge of First District Police Court of the City of St. Louis, Thomas H. Hauk, clerk of such court. Alternative writ quashed and peremptory writ denied.

Johnson, Rutledge & Lashly, Thomas G. Rutledge, and J. M. Lashly, all of St. Louis, for relators. William E. Baird and Robert Burkham, both of St. Louis, for respondents.

LAMM, C. J.

This is an original proceeding in mandamus. One Lile was fined in the First district police court of St. Louis for violating a city ordinance regulating street traffic. Relator Wander, a member of the city's police force, and also a member of his corporate co-relator, St. Louis Police Relief Association, was a witness at Lile's trial. Respondents Kimmel and Hauk were respectively judge and clerk of said police court. Wander in due time applied severally to said judge and clerk to have his witness fee taxed as costs. Relator St. Louis Police Relief Association, through its secretary, similarly applied to have Wander's witness fee taxed. Said Kimmel and Hauk, acting under the advice of the city's legal department, refused to tax the fee as costs. Thereat relators applied here for an alternative writ of mandamus to coerce the taxing of that fee "for the use and benefit of said St. Louis Police Relief Association." Our alternative writ issued, citing respondents to show cause. (Hereinafter, for convenience, the St. Louis Police Relief Association will be spoken of as the "association.") To that writ respondents made return. On the coming in of that return, relators filed a motion in the nature of a demurrer, to wit, a motion for judgment on the pleadings. This, on the theory that on the face of the return relators are entitled to an absolute writ.

The amount actually at stake is 50 cents. Contra, the principle involved is great. The proceeding is practically an agreed case to test the constitutionality of certain statutes, which, if held constitutional, will result (it is claimed in respondents' brief and not denied in relators') in depleting the treasury of the city in an annual vast sum estimated at $50,000 per annum. The precedent sought may be likened to the thin edge of an entering wedge. The gravity of that result, as well as that of the questions involved, persuaded us to take jurisdiction in the first instance.

As the motion for judgment admits averments of fact sufficiently pleaded in the return, and as the denials therein shadow forth the averments of the alternative writ, the scope of the controversy will be outlined when the return is understood. Accordingly we reproduce the return, in part in substance, in part ipsissimis verbis, thus:

Respondents aver that relator Wander has no interest in the suit and is not a proper party; that relator association is a corporation formed by the police force of St. Louis under article 12, c. 33, R. S. 1909, and was duly incorporated in October, 1882, and since that has existed in accordance with laws relating to such associations. They admit that St. Louis is a municipal corporation; that Kimmel and Hauk are respectively the duly appointed and acting judge and clerk of the police court in question; that Wander is and was a duly appointed and acting police officer of St. Louis; that he is an officer of the state and a member of the association. They aver he also is and was an officer of the city by virtue of section 9825, R. S. 1909. They deny that by the rules of the police board all police officers are required to join said association. They state the fact to be that as to a policeman the following rule of said board exists, to wit:

"Sec. 88. He shall at once, upon his appointment and before being assigned to any police duty, make application for membership in the Police Relief Association; and, if admitted as a member thereof, shall promptly pay all his dues and assessments. The board of police commissioners may, for good cause shown, exempt any member from the provisions of this rule."

They aver that said board had no power or authority to adopt such rule or order. They deny that all St. Louis policemen are members of the association. They state that a majority of them are such members, but that some of them are not. They admit that Wander was a witness in said police court in a case pending against one Lile for a penalty for violating an ordinance; that Lile was fined; that relators severally claimed a witness fee on behalf of Wander for the benefit of said association, and demanded that it be taxed and a certificate therefor issue; that the secretary of said association, one Cummings, was duly authorized by the association to make the claim, and did so. They deny that the laws and ordinances governing St. Louis provided that all witnesses duly summoned in a suit before a police judge, like that against Lile, were entitled to a fee of 50 cents per day for each day's attendance, but they (quoting) "state the fact to be that the charter of the city of St. Louis provides, in article 3, section 26, clause 8 thereof, that the mayor and municipal assembly of said city shall have power to `establish the salaries of all officers and the compensation of all employés, excepting day laborers, and jurors and witnesses respectively, for their services'; that since the 15th day of September, 1864, there has been continuously in force in the city of St. Louis a certain duly enacted ordinance, now known as section 1897 of the Revised Code of 1912 of said city, which said ordinance is in words and figures as follows: `Sec. 1897. All witnesses and jurors (city officers and prosecutors excepted), duly summoned in any suit before a police justice, and attending at the trial, shall be entitled to fifty cents for each day's attendance; but they shall not charge for attendance in more than one suit on the same day, and every witness or juror shall be deemed duly summoned, who is sworn to...