State ex rel. Police Comm'r of St. Louis v. Cnty. Court of St. Louis Cnty.

Decision Date31 March 1864
PartiesSTATE, ex rel. THE POLICE COMMISSIONERS OF THE CITY OF ST. LOUIS, Relators, v. THE COUNTY COURT OF ST. LOUIS COUNTY, Respondent.
CourtMissouri Supreme Court

Petition for Mandamus.

Sharp & Broadhead, for relators.

I. It is objected by the respondent that the act of the Legislature, of the 5th of February, 1864, gives the Board of Police Commissioners an unlimited authority to make requisitions upon the county; that the whole revenue of the county is thus subjected to their control, and that this being true, the County Court can never know how to provide for the payment of these requisitions, nor what proportion of the county revenue to set apart for that purpose, nor what taxes to levy.

Whatever force there may be in these objections, so far as the constitutionality of the law is concerned, it is very clear that the law does not bear that construction. In the first place, supposing there were no limit to the estimate which the Police Commissioners may make for the expenses of the police force, as was the case under the act of March 27, 1861, which created the board, except the limit to be inferred from the fact that the law fixes the number of police and the pay which they are to receive, the amendatory act of December 12, 1863, does limit the amount, by declaring, “the whole of said appropriation for police purposes not to exceed the sum of one hundred and seventy-five thousand dollars.” (Act of Dec. 12, 1863, § 5.) This act provided for the increase of pay and an increase in the number of police officers, but had made no special provision for an appropriation by the City Council for the expenses of the current fiscal year, caused by this increase of pay; therefore, the second section of the act of February 5, 1864, authorized the City Council to make an additional appropriation for such expenses for the year 1864; and when the fiscal year ended, they can act as before, under the law of 1861, and make their regular annual appropriation.

The third section then goes on to provide, that the county of St. Louis shall be chargeable with one-fourth of this expense and the city with three-fourths. There is no change, either expressly or by implication, in the limit of $175,000 prescribed by the former law; but it is simply provided that the County Court shall make appropriations to meet that proportion (of one-fourth) out of the county treasury. The number of the police force, their pay, and the aggregate amount which may be demanded by the commissioners, are all limited.

II. It is claimed that there is no money in the county treasury which can be legally appropriated out of the county treasury to pay this requisition, because the County Court is required by the general law to estimate the amount of money required for different purposes connected with the affairs of the county, and to raise money by taxation for those purposes; that the money so raised belongs to those purposes, and cannot be diverted from them.

It is not necessary for us to contend, that the Legislature, which regulated by law the amount and mode of taxation that may be levied upon the inhabitants of a county, and also declares the object to which the money, when raised, may be applied by the county court, may also change the law both as to the mode and amount, as well as the direction in which the money may be applied. The ground urged in the second cause of the return is, that the money cannot be appropriated, because it has been raised for a different purpose. Now, it is very clear, that no interest under the peculiar protection of the County Court, whether it be the road interest, the educational interest, or any other interest, can have any vested right in any money raised for those purposes, which is beyond the power of the Legislature to control, until there has been an appropriation or setting apart of the money for those particular purposes.

A county is a public corporation, and public corporations are created and exist for public political purposes; they constitute parts of the political organizations, and are and ought to be subject to changes, alterations, and in most respects to the control of the supreme legislative power of the State. They may be created or altered with the consent of a bare majority of the inhabitants residing within their limits, or without the consent of any of them, (City of St. Louis v. Thos. Allen, 13 Mo. 414,) and may be abolished by the same power without the consent of any of the inhabitants. If any individual, or any number of individuals, have acquired rights in property under the action of a municipal corporation, legitimately exercised, that is a different question; as, for example, if a man has contracted to build a bridge or a county jail, and money has been raised and appropriated for the purpose of paying him, neither the Legislature nor the county, perhaps, could divert that fund to another object.

The respondent does not deny that there is money in the county treasury sufficient to pay the amount required, nor is it averred that the money has been appropriated to other purposes; but that there is no money which can be legally appropriated, because the money was raised for other purposes. Now, it may turn out that it is very impolitic, contrary to the public interest, that those purposes should be carried out, or that there is some other purpose more important to which the money may be applied. The consent of the corporation is nothing, because it is a public corporation, and has no consent to give, except in accordance with the will of the State. Chief Justice Story says, in the case of Dartmouth College v. Woodward, 4 Wheaton, 518:“Public corporations are such only as are founded by the government for public purposes, where the whole interests belong also to the public; they are such as towns, cities, parishes, and counties.” Such corporations can have no property, no interest, which may not be taken away by the effect of legislation.

But, even if the money raised by the county has been appropriated to the object specified, and there be no surplus over and above the appropriation, and no contingent fund for county expenditures, which is not at all probable, it is a very easy thing for the County Court to draw a warrant on the county treasury, to be paid out of any money not otherwise appropriated, or out of the fund for the pay of the police for St. Louis, as provided by this law, and then to levy an additional tax to take up such warrants. The county tax is collected annually. The assessor's books are returnable on or before the first of June of each year, and after those books are corrected and adjusted, the tax is levied which may be needed under the law. The county, by the general law, is authorized to levy a tax, not exceeding three-fifths of one per cent. The present tax is one-fourth of one per cent. The whole amount required of the county by the law, for the payment of the police force, could not exceed the sum of $43,750. By the general revenue law, the County Court of each county, after the tax-book is corrected and adjusted, shall ascertain the sum necessary to be raised for county purposes, and fix the rates of taxation, so as to raise the required sum. (R. C. 1855, § 2, p. 1350; Sess. Acts 1859-60, § 13, p. 521.) This is to be done after the first day of June, in each year, when the assessor's books are returned. There is no difficulty in anticipating this fund, as is often done by drawing the warrant upon it, to be paid when the tax is collected, even if there should be no money on hand at the time of the requisition, and when the assessor's books are returned, to levy a tax to pay it. In this case they refuse to issue the warrant.

It is said that a special tax cannot be levied without an act of the General Assembly authorizing it. As no money can well be raised by the county except by taxation, which is the general mode provided by law for raising money by a county, except what arises from the proceeds of fines and forfeitures, and as the act of February 5, 1864, requires the money to be paid, it may well be held that act authorizes the county to raise it in the manner provided by law for raising funds for other purposes, and that any supposed instructions in former laws are repealed by this act. But the act of March 14, 1859, (Sess. Acts of 1859, p. 448,) will not bear the construction contended for. The fourth clause of the nineteenth section provides that the “total of taxes ordered to be assessed and levied by said Board of County Commissioners, for all purposes, general and special, ordinary and extraordinary, shall not be greater than three-fifths of one per cent.” The thirty-first section of the same act provides, “that whenever a deficiency shall occur in the revenue of the county of St. Louis to meet any necessary expenditures, &c., the Board of County Commissioners (now the County Court) shall make application to the General Assembly to levy a special tax.”

It is very clear that a limitation of three-fifths of one per cent. in the amount of taxation that may be levied, is equivalent to a grant of power to levy to the extent of three-fifths, and this extends to all objects of county expenditures, including all purposes, general and special, ordinary and extraordinary. The limitation of power contended for would be inconsistent with this grant and absurd, because it would require the court to ask the Legislature to permit them to do what they are already authorized to do, if it be true that the court has not exhausted the power to levy taxes to the extent of three-fifths. To give force and effect to both sections, the thirty-first section must be so construed as to apply to a case in which the board has already levied to the extent of three-fifths.

III. The constitutional objections urged against the validity of the act are three-fold:

1. That it is retrospective in its operation.

2. That it appropriates private property without just...

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