King v. Priest

• Citation: 206 S.W.2d 547,357 Mo. 68
• Decision Date: 10 November 1947
• Docket Number: 39954
• Parties: Daniel King, Robert Goldsmith, Albert Dallas, John R. Judge, Tobin Anderson, Julius Hoff, Chester Walk, John Rooney and Frank Dempsey, for and on Behalf of Themselves and All Other Patrolmen, Sergeants and Turnkeys of the Metropolitan Police Force of the City of St. Louis, Similarly Situated, Appellants, v. H. Sam Priest, Thomas H. Cobbs, Francis L. George, Ben. L. Liberman and Aloys P. Kaufmann, Constituting the Board of Police Commissioners of the City of St. Louis
• Court: United States State Supreme Court of Missouri

206 S.W.2d 547

357 Mo. 68

Daniel King, Robert Goldsmith, Albert Dallas, John R. Judge, Tobin Anderson, Julius Hoff, Chester Walk, John Rooney and Frank Dempsey, for and on Behalf of Themselves and All Other Patrolmen, Sergeants and Turnkeys of the Metropolitan Police Force of the City of St. Louis, Similarly Situated, Appellants, v. H. Sam Priest, Thomas H. Cobbs, Francis L. George, Ben. L. Liberman and Aloys P. Kaufmann, Constituting the Board of Police Commissioners of the City of St. Louis

No. 39954

Supreme Court of Missouri

November 10, 1947

Rehearing Denied December 8, 1947.

Appeal from Circuit Court of City of St. Louis; Hon. Eugene J Sartorius, Judge.

Reversed and rights declared.

Hay & Flanagan, S.D. Flanagan and E. D. Franey for appellants.

(1) It is not necessary that the petition show grounds for injunctive relief in order to present a case for a declaratory judgment. Secs. 1126-1140, R.S. 1939; Nashville, Chattanooga & St. Paul Ry. v. Wallace, 288 U.S. 249, 53 S.Ct. 345, 77 L.Ed. 730; Davis v Cook, 55 F.Supp. 1004; Black v. Little, 8 F.Supp. 867. (2) Although the courts may not control the exercise of discretion vested by law in an administrative officer or agency, when such officer or agency is threatening to act without jurisdiction, the courts may prevent such action by injunction. Carson v. Sullivan, 284 Mo 353, 223 S.W. 571; State ex rel. Public Service Commission v. Blair, 347 Mo. 220, 146 S.W.2d 865; Park Transportation Co. v. Mo. State Highway Comm., 332 Mo. 592, 60 S.W.2d 388; State ex rel. Brokaw v. Board of Education, 171 S.W.2d 75. (3) A suit for a declaratory judgment is a particularly appropriate method for the determination of controversies relative to the construction and validity of statutes, ordinances, and orders of administrative boards and agencies. City of Joplin v Jasper County, 349 Mo. 441, 161 S.W.2d 411; Currin v. Wallace, 306 U.S. 1, 83 L.Ed. 441; Redlands Foothill Groves v. Jacobs, 30 F.Supp. 995; Publix Cleaners, Inc., v. Florida Dry Cleaning & Laundry Board, 32 F.Supp. 31; Interstate Natural Gas Co., Inc., v. Louisiana Public Service Comm., 34 F.Supp. 980; Alston v. School Board of City of Norfolk, 112 F.2d 992; Fieldcrest Dairies, Inc., v. City of Chicago, 35 F.Supp. 451; Penn v. Glenn, 10 F.Supp. 483; School District of Kansas City v. Smith, 342 Mo. 21, 111 S.W.2d 167. (4) Even if it might be said that appellants have an adequate remedy by certiorari to review the action of the Board of Police Commissioners dismissing one or more of them for violating Rule 23, Section 342, of the Police Manual, this would not prevent the court giving relief in a suit for a declaratory judgment, as the existence of another adequate remedy does not bar relief by declaratory judgment. Penn v. Glenn, 10 F.Supp. 483; Doehler Metal Furniture Co. v. Warren, 129 F.2d 43; Adams v. New York C. & St. L.R. Co., 121 F.2d 208; Maryland Cas. Co. v. Faulkner, 126 F.2d 175; State Mutual Life Assur. Co. of Worcester v. Webster, 148 F.2d 315; Delno v. Market St. Ry. Co., 124 F.2d 965; Chicago Metallic Mfg. Co. v. Katzinger Co., 123 F.2d 518. (5) The remery by certiorari, however, would be inadequate because a writ of certiorari brings up only the record proper, and none of the evidence can be availed of. State ex rel. Kennedy v. Remmers, 340 Mo. 126, 101 S.W.2d 70. (6) On certiorari, therefore, the court could not consider any evidence before the Board bearing on the unreasonableness of Rule 23, Section 342 of the Police Manual as applied to membership in a union such as Local 549. A court can declare an ordinance unreasonable upon its face by a mere inspection of the ordinance, but can also declare an ordinance unreasonable upon the showing of facts which makes it unreasonable. St. Louis v. Theatre Co., 202 Mo. 690, 100 S.W. 627; Stegman v. Weeke, 279 Mo. 140, 214 S.W. 137; 43 C.J. 312. (7) And rules adopted by the Board of Police Commissioners are tested by the same standards applicable to municipal ordinances. State ex rel. Kennedy v. Remmers, 340 Mo. 126, 101 S.W.2d 70. (8) Furthermore, the remedy by certiorari is inadequate considering the large number of individuals who are interested in having the validity of Rule 23, Section 342, determined. State ex rel. Baumes v. Mason, 348 Mo. 436, 154 S.W.2d 67. (9) The remedy by certiorari is also inadequate because if a large number of policemen were dismissed from the force it would be necessary for the Police Board to replace them, thereby making it impossible for the dismissed men to recover their lost salaries, even if later reinstated, because the payment of salary to a defacto officer holding under color of title is a complete defense to liability to the de jure officer for salary during the occupancy of the office by the de facto officer. State ex rel. Gallagher v. Kansas City, 319 Mo. 705, 7 S.W.2d 357. (10) The fact that Section 7692, R.S. 1939, gives the Police Board exclusive jurisdiction to try charges preferred against patrolmen does not prevent the courts from declaring a rule of the board invalid. State ex rel. Kennedy v. Remmers, 340 Mo. 126, 101 S.W.2d 70. (11) A controversy as to the validity of rules and regulations of administrative boards is a justiciable controversy which may be determined by the court in a suit for a declaratory judgment. Borchard on Declaratory Judgments (2d Ed.) 909; Sage-Allen Co., Inc., v. Wheeler, 119 Conn. 667, 179 A. 195, 98 A.L.R. 897; Brown v. University of State of New York, 273 N.Y.S. 809, 242 A.D. 85, dismissing appeal, 267 N.Y.S. 859, 150 Misc. 193, and motion denied 192 N.E. 416, 265 N.Y. 290, affirmed 195 N.E. 217, 266 N.Y. 598; Reynolds v. Walz, 278 Ky. 309, 128 S.W.2d 734; Institute of the Metropolis, Inc., v. University of the State of New York, 159 Misc. 529, 286 N.Y. 660; Wiener v. Valentine, 17 N.Y.S. (2d) 355; Francis v. Allen, 54 Ariz. 377, 96 P.2d 277; Wallace v. Hudson-Duncan & Co., 98 F.2d 985; Kentucky Natural Gas Co. v. Public Service Comm., 28 F.Supp. 509; Sunshine Mining Co. v. Carver, 34 F.Supp. 274. (12) If a rule adopted by the Police Board is unreasonable it cannot stand. State ex rel. Kennedy v. Remmers, 340 Mo. 126, 101 S.W.2d 70. (13) Rule 23, Section 342 of the Police Manual is unreasonable because it bars membership in all unions, and does not except from its operation a union such as Local 549, which does not have the right to strike, places the obligations of its members to the police department above any obligation to the union, and has no tendency whatsoever to interfere with the proper functioning and discipline of the police department. An ordinance (and likewise a rule of an administrative board) may be unreasonable on one state of facts although reasonable upon another. St. Louis v. Theatre Co., 202 Mo. 690, 100 S.W. 627; 37 Am. Jur., pp. 803, 804. (14) The petition raised the issue of the unreasonableness of Rule 23, Section 342 of the Police Manual as applied to appellants' membership in Local No. 549. This issue should have been determined by the court after hearing evidence as a motion to dismiss a complaint should not be granted unless it appears to a certainty that plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. Publicity Bldg. & Realty Corp. v. Hannegan, 139 F.2d 583; Howard Transmission Co. v. Neuland, 58 F.Supp. 747; Benedictus v. Sundstrand Machine Tool Co., 185 F.2d 504. (15) Rule 23, Section 342 of the Police Manual is unreasonable because it denies the right of appellants to become members of a labor union. The right of an individual to join a labor union is a fundamental right which does not depend on any statute or constitutional provision. Natl. Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 81 L.Ed. 893; Amalgamated Utility Workers v. Consolidated Edison Co. of New York, 309 U.S. 261, 84 L.Ed. 738; 63 C.J., pp. 656, 657, 658; 31 Am. Jur., p. 851. (16) The intent of the Constitutional Convention that Section 29 of Article I should include employees of the state and of municipalities and agencies thereof was made clear when the convention defeated a proposed amendment to the section which expressly excluded such employees. Printed Journal of the Constitutional Convention of 1943-1944, covering the proceedings of the 135th day thereof, page 25; Ex parte Oppenstein, 289 Mo. 421, 233 S.W. 440; Ex parte Helton, 117 Mo.App. 609, 93 S.W. 913. (17) The word "employees" as used in Section 29 of Article I of the Constitution of Missouri is broad enough to include appellants even though they are officers of the City of St. Louis and State of Missouri. United States v. Maurice, 2 Brock 96; Secs. 7692, 7695, R.S. 1939; Kirby v. Nolte, 349 Mo. 1015, 164 S.W.2d 1; 20 C.J. 1242. (18) The appellants and other members of the police department had the right to join a labor union, at meetings of which they might assemble and exercise their right of freedom of speech to discuss matters affecting their employment. The rights of freedom of assembly and freedom of speech are fundamental rights guaranteed to all persons by the First and Fourteenth Amendments to the Constitution of the United States from abridgement by a state. Thornhill v. State of Alabama, 310 U.S. 88, 84 L.Ed. 1093; Douglas v. Jeannette, 319 U.S. 157, 87 L.Ed. 1324. (19) These fundamental rights of freedom of assembly and freedom of speech are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect, and even then legislative intervention can find constitutional justification only by dealing with the abuse, and the rights themselves must not be curtailed. Whitney v. California, 274 U.S. 357, 71 L.Ed. 1095; DeJonge v. Oregon, 229 U.S. 353, 81 L.Ed. 278; West Virginia State Board of Education v....