Francis v. Blair

• Citation: 9 S.W. 894,96 Mo. 515
• Parties: Francis, Mayor, v. Blair et al., Police Commissioners, Appellants
• Decision Date: 26 November 1888
• Court: United States State Supreme Court of Missouri

9 S.W. 894

96 Mo. 515

Francis, Mayor, v. Blair et al., Police Commissioners, Appellants

Supreme Court of Missouri

November 26, 1888

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

Affirmed.

J. M Holmes and F. A. Wislizenus for appellants.

(1) The antagonism between the metropolitan and the municipal systems is such that they cannot coexist. (2) The mayor, though a member of the board, is not a commissioner. State ex rel v. Police Commissioners, 5 Abb. Pr. 241. (3) The police power is vested primarily in the state, and not in the city; the act of 1861 prohibited the exercise by the city of police powers; and no act has been passed since repealing the act of 1861, directly or by implication. 1 Dill. on Mun. Corp., sec. 210, and cas. cit.; Burch v. Hardwick, 30 Gratt. 40; Railroad v. Cass County, 53 Mo. 17.

Jas. O. Broadhead and Leverett Bell for respondent.

Black J. Ray, J., absent.

OPINION

Black, J.

This case was here before on a demurrer to the petition, and is reported in 89 Mo. 291. Though it has been tried on petition and answer, the case now made is not essentially different from what it was when it stood on the petition. For some of the details, and some points not now in dispute, reference is made to the opinion then filed.

The plaintiff is the mayor of the city of St. Louis, and a duly qualified member of the board of police commissioners of that city. The defendants are the four commissioners appointed by the governor as members of the board. At a meeting of the board, a resolution was adopted, over the protests of the plaintiff, which is 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 misapprehension which may exist in the premises, rule No. 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 departments, 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."

1. The plaintiff insists that this resolution is invalid, because it deprives him of rights and powers vested in him by law. The first specific issue will be best understood by stating the claims of the litigants in the language of their counsel, namely: The mayor's position is that the state law has made him president of the board, and that he has the right to speak for it when not in session, and to issue such orders as are necessary to give effect to the will of the board; that he is the executive officer of the board, selected and named by the legislature for that purpose. Defendants say the mayor is in no sense of the term a police commissioner, has no power as such, and has no power whatever in police matters, save as a member of the board while it is sitting.

The board of police commissioners was established in 1861. Acts of 1860-61, p. 447. The mayor of the city has been a member of the board from the time it was established. Reference will be made to this act and the amendments thereto as compiled in Revised Statutes 1879, p. 1528. Section 2, among other things, provides: "There shall be and is hereby established within and for the city of St. Louis, a board of police commissioners of the city of St. Louis, to consist of four commissioners, as is hereafter provided, together 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." The said commissioners shall be citizens of this state. Before entering upon the duties of their said office, the said commissioners and the said mayor shall take and subscribe the oath. A majority of the board of police shall constitute a quorum; and the failure or refusal of the mayor or acting mayor of the city of St. Louis to qualify or act hereunder shall in nowise impair the right or duty of said commissioners to organize and proceed as herein provided. Other sections of the law make it the duty of the governor, with the advice of the senate, to appoint four commissioners. Vast powers are conferred upon the board, as a board, and to execute these powers the board is required to appoint a permanent police force.

It is to be observed that these statutes, in speaking of the board as a board, designate it by the terms, "board of police commissioners of St. Louis," "board of police," and "police commissioners." When the four persons, appointed by the governor, are mentioned, they are designated, in general, "commissioners." There can be no doubt but the mayor, when he qualifies by taking the oath, is a member of the board. He is as much a member of the board as any one of the four persons designated by the governor. His duties in the board are the same as that of either of the commissioners. In short he is a police commissioner.

His claim to be the executive officer of the board, when not in session, is based on these words, ...