Strother v. Kansas City

Citation223 S.W. 419,283 Mo. 283
PartiesALBERT R. STROTHER et al. v. KANSAS CITY et al., Appellants
Decision Date19 June 1920
CourtUnited States State Supreme Court of Missouri

Appeal from Jackson Circuit Court. -- Hon. Thomas J. Seehorn, Judge.

Affirmed.

E. M Harber and M. A. Fyke for appellants.

(1) Under the statute (R. S. 1909, sec. 9778) it is made mandatory upon the city to support and maintain the Metropolitan Police System in Kansas City. Reynolds v Jost, 26 Mo. 51; State ex rel. v. Mason, 153 Mo. 51. (2) The tax levied for the support and maintenance of a metropolitan police system is not levied for a municipal purpose. Hence it is not violative of Section 1 of Article 5 of the Charter of Kansas City. Nor is it violative of Section 11, Article 10 of the Constitution of Missouri. State ex rel. v. Field, 119 Mo. 593; State ex rel. Taro v City of Everett, 172 P. 752; Young v. Kansas City, 152 Mo. 661; State v. Owsley, 122 Mo. 68; State v. Board of Education, 141 Mo. 49. (3) The two mill tax for the support of the police system is not violative of Section 8, Article 10 of the Constitution of Missouri. Hamilton v. County Court, 15 Mo. 1; State ex rel. v. County Court, 34 Mo. 546; Commonwealth v. Commrs., 37 Pa. St. 277; Commonwealth v. Perkins, 43 Pa. St. 400; State. v. Street, 117 Ala. 203; Hare v. Kennedy, 83 Ala. 608; Gilkerson v. The Federal Justices, 13 Gratt. 577; Douglass v. Town of Harrisonville, 9 W.Va. 135; Powell v. Parkersburg, 28 W.Va. 706; Norfolk v. Ellis, 26 Gratt. 226; Eyre v. Jacob, 14 Gratt. 434; Norfolk v. Chamberlain, 89 Va. 202. (4) The establishment of a metropolitan police system for the large cities is but the exercise of the police power of the sovereign state. Reynolds v. Jost, 265 Mo. 51. "The exercise of the police power of the State shall never be abridged." Mo. Constitution, sec. 5, art. 12. And is inalienable, even by express grant. Tranbarger v. Railroad, 250 Mo. 55; Railroad v. Tranberger, 238 U.S. 76; State v. Public Service Comm., 204 S.W. 49; City of Fulton v. Public Service Comm., 204 S.W. 386; Nut & Bolt Co. v. Lt., Heat & Power Co., 204 S.W. 1074; St. Louis v. Public Service Comm., 207 S.W. 799. (5) The maintenance of city government is essential to the health, safety and general welfare of the people of the city, and consequently the limitation of indebtedness imposed (by the Constitution) could not have been intended to be so far exclusive as to necessitate the suspension of government. Rauch v. Chapman, 16 Wash. 568, 48 P. 253, 36 L. R. A. 407; Grant v. City of Davenport, 36 Iowa 396; Gladwin v. Ames, 30 Wash. 608, 71 P. 189. (6) The obligation to maintain the metropolitan police system is not an obligation or debt incurred by assent, agreement or contract, but is an obligation imposed by law, and stands upon the same footing as a debt or judgment arising in an action ex delicto. The estimate of the police commissioners is in the nature of a judgment against the city, the payment of which is mandatory. Conner v. Nevada, 188 Mo. 153; State ex rel. v. Pike County, 144 Mo. 280; Ex parte Loving, 178 Mo. 220; State ex rel. v. Board of Education, 153 Mo. 23; Lewis v. Widber, 99 Cal. 412; Rauch v. Chapman, 16 Wash. 568.

James G. Smart for respondent; Albert R. Strother pro se.

(1) The law establishing the Metropolitan Police System in Kansas City, in express terms requires the expenses thereof to be paid out of the "annual revenue of the city," and there is no other source provided for the payment thereof. R. S. 1909, sec. 9778; State ex rel. v. Jost, 265 Mo. 51; R. S. 1909, art. 17, chap. 84, passim; Laws 1911, p. 348; Laws 1915, p. 364. See also: State ex rel. v. Mason, 153 Mo. 23; State ex rel. v. St. Louis County Court, 34 Mo. 546; Hamilton & Treat v. St. Louis County Court, 15 Mo. 3. (2) The "annual revenue of the city" is the money derived from general taxes, license taxes and other public municipal charges, not impressed with a trust. State ex rel. v. Mason, 153 Mo. 23, 54. (3) The law imposing the obligation to support the police department having specified the fund from which such expenses are to be paid, no other funds can be used for such purpose. The twomill tax is, therefore, void. Pettis County v. Kingsbury, 17 Mo. 479; State ex rel v. Trammel, 106 Mo. 510. (4) The charter of Kansas City limits the rate of the general tax for municipal purposes to ten mills on the dollar of assessed value, and for building purposes after a vote of the people to two and one-half mills on the dollar, and Ordinance 34613 having levied these rates in full, the excess two-mill tax is void. Kansas City Charter 1908, pp. 206-211; Sections 1 and 2 Article 5; Carr v. St. Louis, 9 Mo. 190. (5) The Constitution limits the rate of taxes that can be levied by Kansas City for municipal purposes to ten mills on the dollar. The twomill tax being in excess of this rate is void. Mo. Const. sec. 11, art. 10; Overall v. Ruenzi, 67 Mo. 203; Arnold v. Hawkins, 95 Mo. 569; Black v. McGonigle, 103 Mo. 192; Brookfield v. Tooey, 141 Mo. 619; Brooks v. Schultz, 178 Mo. 222; Union Trust Co. v. Pagenstecher, 221 Mo. 121; Board of Commrs. v. Peter, 253 Mo. 520; (6) By the Constitution, Kansas City cannot "become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters thereof, voting at an election to be held for that purpose." The support of the police department is not one of the purposes for which such indebtedness may be increased and it is not claimed any such assent was given to the two-mill tax. This limitation applied to all obligations ex contractu whether created by contract or imposed by legislative enactment. The answer pleads that the total municipal obligations including the police expenses could not be met by the general levy of ten mills and that therefore the two-mill tax was "necessary." The legal conclusion is that the two-mill tax is illegal and void. Mo. Const. sec. 12, art. 10; Barnard v. Knox County, 105 Mo. 382; Mountain Grove Bank v. Douglas County, 146 Mo. 42; State ex rel. v. Wabash Rd. Co., 169 Mo. 563; State ex rel. v. Wilder, 197 Mo. 1; State ex rel. v. Gordon, 265 Mo. 181; Lake County v. Rollins, 130 U.S. 662, 32 L.Ed. 1060. (7) If the two-mill tax is for a state purpose, then it could only be levied by the General Assembly itself by a law providing for it, and there is no such law. Mo. Const. secs. 1 and 10, art. 10; State ex rel. v. Ashbrook, 154 Mo. 375, 388. (8) If the twomill tax is for a state purpose, then it is void because it exceeds the limit fixed by the Constitution and laws for state taxes. Mo. Const. sec. 8, art 10; R. S. 1909, sec. 11415, as amended by Laws 1915, p. 393; R. S. 1909, sec. 11416; State ex rel. v. Stephens, 146 Mo. 662; Board of Commrs. v. Peter, 253 Mo. 520, 537. See also: Mo. Const. sec. 16, art. 9; St. Louis v. Dreisoerner, 243 Mo. 217. (9) The two-mill tax, being unconstitutional and void, to sell the property of respondents for non-payment thereof, as appellants admit they intend to do if such tax is not paid, would deprive respondents of their property without due process of law in violation of Missouri Constitution, sec. 30, art. 2, and of Section 1 of the 14th Amendment of the Constitution of the United States.

GOODE J. Woodson, J., absent.

OPINION

In Banc

GOODE, J. --

The parties are agreed about the facts and the issues in this case, so we adopt the statement of them prepared by the respondent.

"The Board of Police Commissioners of Kansas City, Missouri, made and certified to the Common Council of said city, an estimate of the amount of money necessary for the support and maintenance of the police department of said city for the fiscal year 1919, as required by Article 17 of Chapter 84 of the Revised Statutes of 1909, as amended. Thereafter, and on April 22, 1919, said Common Council passed and the Mayor approved Ordinance 34613, levying property taxes for said city for said fiscal year. The first section of the ordinance is as follows:

"'Be it Ordained by the Common Council of Kansas City:

"'Section 1. Taxes for the fiscal year of 1919, commencing on the 21st day of April, 1919, are hereby levied on all property in Kansas City, Missouri, liable to taxation for state and county purposes, and not by general law exempt from municipal taxation, as follows, to-wit:

"'First. A general tax of ten mills on each dollar of assessed value for general purposes.

"'Second. A tax of one mill on each dollar of such assessed value, which tax is necessary and will be sufficient to pay the amount certified to the Common Council by the Comptroller to be raised by taxation for the payment of coupons falling due during the fiscal year 1919.

"'Third. A tax of one-half mill on each dollar of such assessed value, which tax is necessary for the maintenance of the Water Sinking Fund, created for the redemption of the city's outstanding Kansas City judgment and water works bonds, at the time of their maturity.

"'Fourth. A tax of one mill on each dollar of such assessed value, which tax is necessary for the maintenance of the General Sinking Fund, created for the redemption of the city's outstanding Kansas City general bonds, at the time of their maturity.

"'Fifth. A tax of two mills on each dollar of such assessed value for the support and maintenance of the Metropolitan Police System in Kansas City, Missouri.'

"The respondent Albert R. Strother, owning real property subject to city taxation, tendered all the taxes levied by said ordinance, except the two-mill tax levied by subdivision fifth of Section 1 for the support and maintenance of the police department. This tender was refused. Thereafter said respondent, as plaintiff, filed this suit to enjoin the collection of said two-mill...

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