American Fire Alarm Co. v. Board of Police Commissioners

• Decision Date: 30 December 1920
• Citation: 227 S.W. 114,285 Mo. 581
• Parties: AMERICAN FIRE ALARM COMPANY, Appellant, v. BOARD OF POLICE COMMISSIONERS et al
• Court: Missouri Supreme Court

227 S.W. 114

285 Mo. 581

AMERICAN FIRE ALARM COMPANY, Appellant, v. BOARD OF POLICE COMMISSIONERS et al

Supreme Court of Missouri, First Division

December 30, 1920

Appeal from Jackson Circuit Court. -- Hon. Clarence A. Burney Judge.

Affirmed.

Darius A. Brown and J. M. Johnson for appellant.

(1) Defendant, Board of Police Commissioners, is a quasi-municipal corporation possessing all elements of a legal entity. Art. XVII, Chap. 84, R. S. 1909; State ex rel. v. Jost, 265 Mo. 51; State ex rel. v Jost, 269 Mo. 248; Clarissey v. Fire Department, 1 Sweeney (N. Y.) 224; Police Commrs. v. City of Louisville, 3 Bush. (Ky.) 597; McQuillin on Municipal Corp., sec. 111; Vincennes University v. Indiana, 14 How. (U.S.) 268; 27 Cyc. 128; Scates v. King, 110 Ill. 456; Richardson Co. School Dist. v. Ins. Co., 103 U.S. 707. (2) In the enactments comprised in Art. XVII Chap. 84, R. S. 1909, the Legislature, as it had the power to do, recalled from cities of the class to which Kansas City belongs all power of supervision and control over the police department and conferred those powers and functions upon a separate, independent legal entity designated as the Board of Police Commissioners. Authorities above. (3) The provision for perpetual succession coupled with the investiture in the Governor of the power of appointment, the provision giving funds to the boord, and the disposition thereof, and empowering the board to acquire property free from the domination, control or regulation of the city, completed the elements requisite to the creation of an independent corporate being endowed with the exercise of business functions recalled by the State from the city. Authorities above; also Harris v. Mortgage Co., 244 Mo. 664. (4) With the power to regulate and control, to arm and equip, and to make contracts, the board was invested with the implied authority to sue and be sued. A quasi-corporation has such capacity whether or not the same be expressly conferred. Authorities above. Also Commonweath v. Green, 4 Whart. (Pa.) 531, 598; Elliott on Municipal Corp. sec. 3, p. 7; 35 L. R. A. (N. S.) 243; Trevett v. Prison Assn., 50 L. R. A. 564; Gross v. Ken. Board of Mgrs., 105 Ky. 840; Hopkins v. Agricultural College, 221 U.S. 636; People v. Batcheler, 53 N.Y. 128; Winslow v. Perquimans Co., 64 N.C. 218; Parsons v. Levy Dist., 178 S W. (Mo.) 280; Levy Court v. Coroner, 2 Wall. (U.S.) 501. (5) It was not ultra vires the board to purchase the boxes and to enter into a contract for the purchase of the same. While it may be conceded the board could not ratify an act which was ultra vires, the powers being conferred upon the board by statute it could ratify the unauthorized act of a subordinate which if done by the board itself would be intra vires. Central Transportation Co. v. Pullman Pal. Car Co., 139 U.S. 24; McQuillin on Municipal Corp., sec. 1172; Edwards v. Kirkwood, 147 Mo.App. 599. (6) Mandamus is not a remedy open to plaintiff since a plain and adequate remedy exists at law. Flannigan v. Kansas City, 69 Mo. 462; Sanford v. Kansas City, 69 Mo. 466; Riley v. Kansas City, 31 Mo.App. 446, 14 L. R. A. 773; Smith v. Berryman, 173 Mo.App. 148; State ex rel. Heller v. Thornfield, 174 Mo.App. 469; 26 Cyc. 306, 311; Mansfield v. Fuller, 50 Mo. 338; State v. Macon Co. Court, 68 Mo. 29; Payne v. School Dist., 87 Mo.App. 418; Claude v. Pierce City, 86 Mo. 37. (7) Since the board has perpetual succession, the contract was one it had authority to make regardless of the fact that the contract provided for performance extending beyond the term of office of the incumbent members of the board. Pattison v. Uba County, 13 Cal. 175; Hallenbeck v. Hahn, 2 Neb. 399; Manley v. Scott, 108 Minn. 142; Chapman v. York Co., 79 Me. 267; Pegram v. Cleveland Co., 65 N.C. 114; Monroe Co. v. Strong, 78 Miss. 565; Platter v. Elkhart Co., 103 Ind. 360; Grannis v. Blue Earth Co., 81 Minn. 55; Scioto v. Jerky, Wright, Ohio, 493; Ruhland Co. v. Miller, 16 S.C. 236; McCormack v. Boston, 120 Mass. 499; Detroit v. Railway Co., 184 U.S. 368.

OPINION

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, Misouri, 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, Missouri, 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, Missouri, 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. Lamb, Jr., and James S. Lapsley were at those times the duly appointed, qualified and acting members of the board.

It will not be necessary 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 defendant Board of Police Commissioners of Kansas City, Missouri, under enumerated sections of the Revised 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. DeShaffon, acting as the authorized agent of the board, 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 three hundred and fifty police signal boxes for the price of $ 80 per box. Other allegations state facts to show the authority of DeShaffon 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 fifty-four of said police alarm boxes, which were accepted by defendant and put into service in the police signal system of the city; that afterwards bills were presented by the plaintiff for said fifty-four boxes, and defendant issued its warrant to pay for forty of them, but refused to pay for the remaining fourteen boxes. The first count of the petition, which contains three counts, asks judgment for $ 1120, the unpaid contract price of said fourteen boxes.

The second count, after stating the quasi-corporate capacity of the board, and who were 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 fourteen police signal boxes, of the reasonable value of $ 1120, which were accepted by defendant and put into use; and that 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 fifty-four boxes, and completed, ready for delivery, with the exception of the wheel numbers, the remaining two hundred and ninety-six 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 reason assigned for demurring is 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.

I. 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...