American Fire Alarm Co. v. Board of Police Com'Rs

Citation285 Mo. 581,227 S.W. 114
Decision Date02 December 1920
Docket NumberNo. 21467.,21467.
PartiesAMERICAN FIRE ALARM CO. v. BOARD OF POLICE COM'RS OF KANSAS CITY et al.
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

Action by the American Fire Alarm Company against the Board of Police Commissioners of Kansas City, Mo., composed of James Cowgill, President, etc. A demurrer was sustained to the petition, and plaintiff appeals from a final judgment rendered against it. Affirmed.

Darius A. Brown, and J. M. Johnson, both of Kansas City, for appellant.

E. M. Harber, Francis M. Hayward, Burr N. Mosman, and Ilus M. Lee, all of Kansas City, for respondents.

GOODE, J.

A demurrer was sustained to the petition in this case; and, the plaintiff having refused to amend, and electing to stand on its petition, final judgment was given against it, and from that judgment this appeal was taken.

The question for decision is whether the action can be maintained against the board of police commissioners of Kansas City as a body politic, the title of the cause being:

"American Fire Alarm Company, a Corporation, v. Board of Police Commissioners of Kansas City, Missouri, Now Composed of James Cowgill, President, John R. Ranson and John Halpin, Commissioners, Defendant."

The only defendant named in the title was the board of police commissioners of Kansas City, Mo., and various allegations of the petition show the intention was to sue that body alone, and to sue it as a corporation.

The first allegation of the first count alleges:

"The defendant, board of police commissioners of Kansas City, Mo., is, and was at all times mentioned herein, a quasi public corporation, created, organized, and existing under and by virtue of the statutes of Missouri, said board being composed of three members, two of them appointed by the Governor and confirmed by the state Senate, the third member being the mayor of Kansas City, who, by virtue of his office, is ex officio president of said board."

The petition then says James Cowgill was the acting mayor of Kansas City at the time the action was begun, and ex officio president of the defendant, the board of police commissioners of Kansas City; and that John R. Ranson and John Halpin were at said time the duly appointed, qualified, and acting members. The petition says Henry L. Jost was the mayor of Kansas City, and, as such, ex officio president of defendant board on said 17th day of May, and for some time before and after, and Fred A. Lambe, Jr., and James S. Lapsley were at those times duly appointed, aualified, and acting members of the board. It will not be neccessary to set out the petition in full, but only the substance of it. It contains averments regarding the power, on May 17, 1915, of the board of police commissioners of Kansas City, Mo., under enumerated sections of the Statutes of 1909, to employ, equip, and arm a permanent police force for the city; to rent apparatus for police alarms and fire alarms, purchase new or additional equipment or other apparatus as it might deem necessary for executing its duties; and furnish all necessary material for a complete organization and equipment of the police force and police department of the city. It is alleged that on said May 17th, M. E. De Shaffon, acting as the authorized agent of the entered into a contract with the plaintiff on behalf of the board for the manufacture by plaintiff and delivery to the defendant at Kansas City of 350 police signal boxes for the price of $80 per box. Other allegations state facts to shows the authority of De Shaffon to make the contract for the board, and the terms of the contract. Then follow averments of the manufacture and delivery by plaintiff to defendant, pursuant to the contract, of 54 of said police alarm boxes, which were accepted by defendant and into service in the police signal system of the city; that afterwards bills were presented by the plaintiff for said 54 boxes, and defendant issued its warrant to pay for of them, but refused to pay for the remaining 14 boxes. The first count of the petition, which contains three counts, asks judgment for $1,120, the unpaid contract price of said 14 boxes.

The second count, after stating the quasi corporate capacity of the board, and who its members at the date of the filing of the petition, and who on the 17th day of May, 1915, alleges plaintiff sold and delivered to defendant 14 police signal boxes, of the reasonable value of $1,120, which were accepted by defendant and put into use; and defendant has refused to pay for them, and is indebted to the plaintiff in said amount, for which judgment is asked. That is a count in the nature of one in indebitatus assumpsit.

The third count, after alleging the facts regarding the membership of the board on the two dates aforesaid, and the terms of the contract as recited in the first count, says plaintiff, relying on the contract and the good faith of defendant to carry it out, manufactured and delivered to defendant 54 boxes, and completed, ready for delivery, with the exception of the wheel numbers, the remaining 296 boxes. The wheel numbers, according to the petition, were to be furnished by the board, and it is alleged that, although often requested to furnish them, defendant refused to do so; that plaintiff was at all times ready to complete said boxes by putting the wheel numbers on them, and deliver them to defendant according to the contract, and that plaintiff tendered delivery. but defendant renounced and repudiated the contract, and refused to carry out its obligations, to the damage of plaintiff in the sum of $24,800, for which judgment is asked. That count seeks recovery for all the boxes, whether delivered or undelivered.

The reasons assigned for demurring are that the case purports to be brought against the board of police commissioners as a legal entity, whereas said board is not a legal entity authorized by law to sue and be sued; and, further, that each count of the petition fails to state facts sufficient to constitute a cause of action.

1. The laws at present in force affecting the Kansas City "Board of Police" as the body is styled in the statutes, are contained in the article comprising the laws applicable to cities of 150,000 and less than 300,000 inhabitants, but the board was established in 1874 by a special act. Laws 1874, p. 327; 3 R. S. 1009, c. 84, art. 17, § 9764 et seq. The public policy of creating in large cities a system of metropolitan police, controlled by a board of police, the members of which were appointed in much the same way, and the expense of the system similarly defrayed, was commenced for St. Louis in 1861. Laws 1860-01, p. 446; Laws 1899, p. 51; State ex rel. Hawes v. Mason, 153 Mo. 23, 54 S. W. 524; 3 R. S. 1909, § 9803 et seq.; State ex rel. v. Stobie, 194 Mo. 14, 92 S. W. 191. And there is in effect a general statute for the establishment within cities of the first class of a similar body called "board of police commissioners, city of ______." S. 1909, 8770. Those commissioners are to be appointed by the Governor, and the expenses of the department paid in the same way as the expense of the police department in Kansas City. 2 R. S. 1909, § 8774 et seq. There are similar statutes for cities of the second class wherein, as in the laws affecting the Kansas City board, the body is designated, but not named a board of police, the members to be called "police commissioners of the city of ______." 2 R. S. 1909, § 9094 et seq.

The members of the police force of St. Louis and Kansas City are officers of their respective cities, and also of the state. 3 R. S. 1909, §§ 9825, 9782; State ex rel. v. St. Louis, 174 Mo. 125, 73 S. W. 623, 31 L. R. A. 593; State ex rel. v. Stobie, 194 Mo. 14, 92 S. W. 191; State ex rel. v. Kimmel, 256 Mo. 611, 165 S. W. 1067. Nevertheless, it has been settled by several decisions of this court that the municipal police officers, including the members of the police boards of the two cities, constitute a part of the measures adopted by the state to preserve peace, and protect the legal rights of persons. State ex rel. Hawes v. Mason, 153 Mo. 23, 54 S. W. 524; State ex rel. Goodnow v. Police Commissioners of Kansas City, 184 Mo. 109, 133, 71 S. W. 215, 88 S. W. 27; State ex rel. v. Jost, 265 Mo. 51, 175 S. W. 591, Ann. Cas. 1917D, 1102; State ex rel. v. Jost, 269 Mo. 248, 191 S. W. 38. The reasons for that rule of law and the authorities which support it are set forth fully in the cited cases, and not be repeated; but we remark that the expense of the police systems, including the board of police of the cities, is borne entirely by the municipalities, is paid out of their treasuries. The mode of raising the necessary funds in Kansas City (and the mode in St. Louis is the same) is prescribed in a section of the statutes which makes it the duty of the board of police to estimate at the beginning of each fiscal year the sum of money that will be needed during the ensuing fiscal year, and certify their estimate the council or municipal assembly of the city, which body is required to appropriate amount of the estimate in the first apportionment ordinance of the fiscal year, and the appropriation is payable out of the next annual revenue of the city. 3 R. S. 1909, § 9778. But though the city carries the expense of the board of police and of the police system generally, it does this pursuant to a law of the state which:t has no discretion about obeying. That is, in raising and appropriating funds to support the system the city acts as an agent of the state. State ex Hawes v. Mason, 153 Mo. 23, 54 S. W. State ex rel. v. Jost, 265 Mo. 51, 175 S. W. 591, Ann. Cas. 1917D, 1102.

The pertinency of the foregoing observations and authorities to the point in hand in the present case consists in their demonstration that the board of police and the police system of Kansas City...

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