State ex rel. Hocker v. Nolte

• Decision Date: 12 April 1932
• Docket Number: 31383
• Citation: 48 S.W.2d 916,330 Mo. 299
• Parties: State of Missouri ex rel. Lon O. Hocker, Frederick H. Kreismann, Daniel Bartlett, Nicola P. Zimmer and Victor J. Miller, constituting the Board of Police Commissioners of the City of St. Louis, and Loretta Stussie v. Louis Nolte, Comptroller of the City of St. Louis
• Court: Missouri Supreme Court

48 S.W.2d 916

330 Mo. 299

State of Missouri ex rel. Lon O. Hocker, Frederick H. Kreismann, Daniel Bartlett, Nicola P. Zimmer and Victor J. Miller, constituting the Board of Police Commissioners of the City of St. Louis, and Loretta Stussie v. Louis Nolte, Comptroller of the City of St. Louis

No. 31383

Supreme Court of Missouri

April 12, 1932

Alternative writ quashed.

Polk & Williams for relator.

(1) It ought to be possible, under our constitutional system, to support the statute and regulation here in question upon the theory either of contract or moral obligation. (2) The right to provide prospectively for future compensation, in the event of death or injury, is supported by the great weight of available authority. Cobbs v. Home Ins. Co., 18 Ala.App. 206; State v. Love, 89 Neb. 149; Commonwealth v. Walton, 182 Pa. 373; Commonwealth v. Barker, 211 Pa. 610; Mahon v Board of Education, 74 N.Y.S. 172; Hammitt v Gaynor, 144 N.Y.S. 123; People v. Abbott, 274 Ill. 380; O'Dea v. Cook, 176 Cal. 659; Hayes v. Hoboken, 93 N. J. L. 432; 19 R. C. L. p. 727. Distinguishing State v. Ziegenhein, 144 Mo. 283. (3) The right, under the circumstances, to recognize the moral obligation: Wyoming v. Carter (Wyo.), 215 P. 477; Woodall v. Dast (W. Va.), 77 S.E. 264; State ex rel. Crow v. St. Louis, 174 Mo. 125; 2 McQuillin on Municipal Corporations (2 Ed.) 218, sec. 532. (4) There is no prohibition of pensions, eo nomine, in the original Constitution of 1875; and in any event this is not a pension.

Julius T. Muench, Oliver Senti and Leonard J. Holland for respondent.

(1) It was the intention of the Legislature that the benefits provided by the Police Pension Act of 1929 should be in lieu of all other benefits, including those arising under Section 7547, Revised Statutes of Missouri, 1929, that might otherwise be payable to the members of the police department or their dependents by the cities coming within the terms of the act. Secs. 8906 to 8918, R. S. 1929, particularly Sec 8908, clause (1) and Sec. 8911, clause (12). (a) The part of Section 7547 of the R. S. 1929, which undertakes to authorize the Board of Police Commissioners to make rules and regulations for the relief and compensation of the members of the police force injured in person or property in the discharge of their duties, and the families of officers or men killed in such discharge of duty, providing that the allowance shall not exceed in any one instance twelve months' pay, is a provision for a pension. Laws 1860-61, p. 466, sec. 10; Laws 1891, p. 184; Laws 1895, p. 234; Laws 1899, p. 51, sec. 9. (b) A subsequent statute which is clearly repugnant to a prior one necessarily repeals the former, though it does not do so in express terms. State ex rel. Vastine v. McDonald, 38 Mo. 529; State ex rel. Maguire v. Draper, 47 Mo. 29; State ex rel. Matacia v. Buckner, 300 Mo. 359. (2) An act revising the whole subject-matter of a former act, and evidently intended as a substitute therefor, though containing no express words to that effect, repeals the former act. Poindexter v. Pettis County, 246 S.W. 38, 295 Mo. 629; State v. Roller, 77 Mo. 120.

OPINION

Henwood, J.

This is an original proceeding in mandamus by which relators, the members of the board of police commissioners of the city of St. Louis and the widow of a deceased police officer, seek to compel respondent, as comptroller of the city, to audit and approve a voucher for $ 2,160, covering a relief and compensation award by said board to said widow, and to draw his warrant on the treasurer of the city therefor.

Our alternative writ has been issued, respondent has filed his return, and relators have filed a motion for judgment on the pleadings.

It is recited in the alternative writ and admitted in respondent's return that Harry J. Stussie served continuously as a police officer of the city of St. Louis from November 22, 1926, until March 14, 1931; that he was struck by an automobile truck on March 14, 1931, while engaged in the performance of his official duties, and received injuries which resulted in his death on the following day; that he left surviving him his widow, Loretta Stussie, and five minor children, who were dependent upon him for support; that on March 27, 1931, the board of police commissioners of the city, acting under the purported authority of Section 7547, Revised Statutes 1929, and a rule or regulation of the board based on said statute, awarded to his widow the sum of $ 2,160, the equivalent of her deceased husband's salary for twelve months, as relief and compensation; that on March 30, 1931, a voucher covering said award was issued; and that respondent, as comptroller of the city, refused to audit and approve said voucher and to draw his warrant on the treasurer of the city therefor. It is also stated in respondent's return, and not denied by relators, that on April 10, 1931, the board of trustees of the police retirement or pension system of the city of St. Louis awarded to the widow of Harry J. Stussie a pension of $ 84.92 per month, and that she has received said pension ever since, under the provisions of the St. Louis Police Retirement or Pension System Law of 1929.

As a defense to this proceeding, respondent asserts in his return, and in his brief, that the St. Louis Police Retirement or Pension System Law of 1929 repealed that part of Section 7547, Revised Statutes 1929, which purports to authorize the board of police commissioners of the city of St. Louis to make rules and regulations for the relief and compensation of police officers injured while in the discharge of their duties and the families of police officers killed while in the discharge of their duties.

Section 7547, Revised Statutes 1929, among other things, says: "The boards of police are hereby authorized to make all such rules and regulations, not inconsistent with this article, or other laws of the State, as they may judge necessary, for the appointment, employment, uniforming, discipline, trial and government of the police and for the relief and compensation of members of the police force injured in person or property in the discharge of their duties, and the families of the officers of men killed while in such discharge of duty: Provided, that the allowance shall not exceed, in any one instance, twelve months' pay." (Our italics.)

The provision in this section "for the relief and compensation of members of the police force injured in person or property in the discharge of their duties, and the families of the officers or men killed while in such discharge of duty" was a part of the original St. Louis Metropolitan Police Act of 1861 (Laws 1860-1, p. 450, sec. 10), and repealed by the St. Louis Police Pension Act of 1891, and made a part, in amended form, of said Act of 1891 and of the St. Louis Police Pension Act of 1895 (Laws 1891, p. 185, sec. 11, Laws 1895, p. 234, sec. 11), and reenacted in its original form as a part of the new St. Louis Metropolitan Police Act of 1899 (Laws 1899, p. 56, sec. 9), and in its original form has been ever since a part of the St. Louis Metropolitan Police Law in succeeding revisions of our statutes. [Sec. 6216, R. S. 1899; Sec. 9809, R. S. 1909; Sec. 8957, R. S. 1919; Sec. 7547, R. S. 1929.]

In 1929, the Legislature enacted what is known as the St. Louis Police Retirement or Pension System Law, entitled, in part, "An act to provide for the creation, maintenance and administration of a police retirement or pension system in all cities of this State that now have or may hereafter attain a population of five hundred thousand inhabitants or more; . . ." [Laws 1929, p. 300.] This law now constitutes Article 2 of Chapter 51 of the Revised Statutes of 1929, and includes Sections 8906 to 8918.

It seems advisable to quote certain sections and certain part of other sections of this law, as follows:

"Sec 8908. Membership. -- (1) All persons who become policemen and all policemen who enter or re-enter the service of the said cities after the date the retirement system begins operation shall become members as a condition of their employment and shall receive no pension or retirement allowance from any other pension or retirement system supported wholly or in part by the said cities or the State of Missouri, nor shall they be required to make contributions under any other pension or retirement system of the said cities or the State of Missouri, anything to the contrary notwithstanding.

"(2) All policemen in service on the date as of which the retirement system becomes operative shall become members as of that date unless prior thereto, any such policeman shall file with the board of trustees on a form prescribed by such board, a notice of his election not to become a member of the retirement system and a duly executed waiver of all present and prospective benefits which would otherwise inure to him on account of his participation in the retirement system. . . .

"Sec. 8910. Administration. -- (1) The general administration and the responsibility for the proper operation of the retirement system and for making effective the provisions of this article are hereby vested in a board of trustees of seven persons. The board shall be constituted as follows:

"(a) The president of the board of police commissioners of said cities, ex officio.

"(b) The comptroller of the said cities, ex officio.

"(c) Two members to be appointed by the mayor of said cities. . . .

"(d) Three to be elected by the members of the retirement system of said cities. . . .

"(6) Subject to the limitations of this article, the board of trustees shall, from time to time, establish rules and regulations for the administration of funds created by this article and for the transaction of its business.

"Sec 8911....