State ex rel. St. Louis Police Relief Ass'n v. Igoe

• Decision Date: 04 June 1937
• Docket Number: 34315
• Citation: 107 S.W.2d 929,340 Mo. 1166
• Parties: State of Missouri at the relation of St. Louis Police Relief Association, a Corporation, v. William L. Igoe, George T. Priest, Albert Bond Lambert, John J. Phelan and Bernard F. Dickmann, as Members of the Board of Police Commissioners of the City of St. Louis, Appellants
• Court: Missouri Supreme Court

107 S.W.2d 929

340 Mo. 1166

State of Missouri at the relation of St. Louis Police Relief Association, a Corporation, v. William L. Igoe, George T. Priest, Albert Bond Lambert, John J. Phelan and Bernard F. Dickmann, as Members of the Board of Police Commissioners of the City of St. Louis, Appellants

No. 34315

Supreme Court of Missouri

June 4, 1937

Appeal from Circuit Court of City of St. Louis; Hon. Harry A Hamilton, Judge.

Affirmed.

Edgar H. Wayman and John G. Burkhardt for appellants.

(1) The police retirement pension system is constitutional. Art. IV Sec. 48-A, Mo. Const.; State ex rel. Hocker v Nolte, 330 Mo. 299, 48 S.W.2d 916. (2) Sections 8906-8916, Revised Statutes 1929, superseded or repealed sections 8978 and 8979, providing for the support of the Relief Association. Sec. 8915, R. S. 1929; Smith v. State, 14 Mo. 152; State v. Roller, 77 Mo. 120; Maguire v. Draper, 47 Mo. 29; Matacia v. Buckner, 300 Mo. 359; Poindexter v. Pettis, 295 Mo. 629; Pool v. Brown, 89 Mo. 675; State ex rel. Hocker v. Nolte, 330 Mo. 299. (3) No benefits are to be received by the police from any other organization supported directly or indirectly by the State after election to take under the provisions of the pension system. Sec. 8908, R. S. 1929. (4) If sections 8978 and 8979 were not repealed by the enactment of the pension system, the new sections are cumulative and upon election of the police to take under the pension system the pension system inures to the benefits provided for support of the Relief Association. State v. Wells, 109 S.W. 758; Pabst v. Milwaukee, 45 A. L. R. 1164. (5) Section 8979, Revised Statutes 1929, is null and void because it attempts to authorize and grant public money to a private corporation. De Runtz v. St. L. Police Relief Assn., 162 S.W. 1053; State v. Kimmel, 256 Mo. 611. (6) Section 8979, Revised Statutes 1929, is not validated by the subsequent adoption of Article IV, Section 4-A of the Constitution of Missouri. State ex rel. Scott v. Kircks, 211 Mo. 568; State ex rel. v. Westminster College, 175 Mo. 52; State ex rel. Wab. Ry. Co. v. Pub. Serv. Comm., 317 Mo. 172; Christine v. Luyties, 280 Mo. 416; Gilsonite Const. Co. v. Greffet, 174 Mo.App. 176; Biedermann v. Mermod, Jaccard & King Jewelry Co., 210 Mo.App. 158; Calhoun County v. Galbraith, 99 U.S. 214, 25 L.Ed. 410; Shreveport v. Cole, 129 U.S. 36, 32 L.Ed. 589; San Antonio v. San Antonio Pub. Serv. Co., 255 U.S. 547, 65 L.Ed. 777; Harris v. Walker, 199 Ala. 57, 74 So. 40; Wilcox v. Edwards, 162 Cal. 455, 123 P. 278; Lansing v. Michigan Power Co., 183 Mich. 400, 150 N.W. 250; State ex rel. v. Tufley, 22 P. 1054; Cooley on Constitutional Limitations, p. 136; 12 C. J. 727. (7) Payment of the funds in question to the Relief Association is violative of Sections 3774 and 3778, Revised Statutes 1929. Secs. 3774, 3778, R. S. 1929; Hope v. Costello, 222 Mo.App. 187; Pritchett v. Reynolds, 21 Mo.App. 674; St. Louis Dairy v. Northwestern Bottle, 204 S.W. 81; 1 C. J. 6.

Jacob M. and Arthur V. Lashly for respondent.

(1) Sections 8906-8916, inclusive, of the Police Retirement or Pension System Act do not expressly or impliedly repeal Sections 8978 and 8979 of the Relief Association Act providing for the support of respondent Relief Association. (a) Because there is a presumption against the alleged intention of the Legislature to repeal by implication. State ex rel. Moseley v. Lee, 319 Mo. 976, 5 S.W.2d 83. (b) Because repeals by implication are not favored by the law, and if upon any reasonable ground both legislative acts can stand, that construction is always adopted by the courts. Gasconade v. Gordon, 241 Mo. 569, 145 S.W. 1160; Decker v. Deimer, 229 Mo. 296, 129 S.W. 936; State ex rel. Hulsey v. Clayton, 226 Mo. 292, 126 S.W. 502. (c) Because the Police Retirement or Pension System Act does not cover the entire subject matter of the Police Relief Association Act, does not cover the same subject matter embraced in the Relief Association Act, and even assuming that the Retirement Act covered the entire subject matter of the Relief Association Act the Retirement Act would not operate as an implied repeal of the Relief Association Act because the rule is well established to the effect that a subsequent legislative act covering the entire subject matter of a former act, will not operate as an implied repeal of the earlier act, but will be treated as cumulative, particularly where, as in the instant cause, the Legislature has manifested its intention that the former act shall remain in full force and effect. There must be positive repugnancy between the provisions of the old law and the new in order to effectuate a repeal by implication. State ex rel. Heimburger v. Wells, 210 Mo. 601, 109 S.W. 758; Pabst Corp. v. Milwaukee, 190 Wis. 349, 208 N.W. 493. (2) Section 8908 of the Police Retirement System Act, stating that "policemen shall receive no pension or retirement allowance from any other pension or retirement system supported wholly or in part by the said cities or State of Missouri," and the election of police to take under the provisions of the Retirement Act does not justify a denial of respondent Relief Association's claim to the funds provided for it under Section 8979 of the Relief Association Act. (a) Because the aid, relief and benefits inuring to members of the St. Louis Police Relief Association do not fall within the restrictive legislative definition of the term "pension" enacted for the purposes of the Retirement Act, nor do said benefits fall within the accepted judicial definition of the word "pension," and therefore the provisions of said Section 8908 of the Retirement Act carry no significance as to the matter in controversy and have no application to the respondent or any of its members. State ex rel. Wander v. Kimmel, 256 Mo. 611, 165 S.W. 1067; R. S. 1929, sec. 8906, subsec. 15. (b) Because the St. Louis Police Relief Association is not a "pension" or "retirement system" within the meaning and intent of said Section 8908 of the Retirement Act. State ex rel. Wander v. Kimmel, 256 Mo. 611, 165 S.W. 1067; R. S. 1929, sec. 8906, subsecs. 1, 15, sec. 8907. (c) Because the respondent St. Louis Police Relief Association is not "supported wholly or in part by" the city of St. Louis or the State of Missouri, and is not supported by "public" funds, therefore it follows that the provisions of said Section 8908 of the Retirement Act have no application to the respondent or any of its members, and have no relevancy to respondent's right of recovery herein. Gartley v. People, 28 Colo. 227, 64 P. 208; Beaumont Ry. Co. v. State, 173 S.W. 641; State ex rel. Stearns v. Olson, 43 N.D. 619, 175 N.W. 714; People ex rel. Nash v. Faulkner, 107 N.Y. 477; Robinson v. Luches, 220 Mich. 490, 190 N.W. 227; 50 C. J., sec. 40, pp. 854-55; R. S. 1929, sec. 8979. (3) Section 8979 of the Relief Association Act does not violate Article IV, Sections 46 and 47 of the Missouri Constitution prohibiting the General Assembly from granting or authorizing the grant of public money to any corporation. (a) Because money derived from the sale of unclaimed personal property, or from gambling raids, or from fines assessed against any delinquent police officer by the board of police commissioners, or from percentages of rewards allowed to a member of any police force under the regulations of its department is not "public" money, and therefore a statute regulating the distribution thereof does not contravene the aforementioned constitutional provisions. Gartley v. People, 28 Colo. 227, 64 P. 208; Beaumont Ry. Co. v. State, 173 S.W. 641; State ex rel. Stearns v. Olson, 43 N.D. 619, 175 N.W. 714; People ex rel. Nash v. Faulkner, 107 N.Y. 477; Robinson v. Luches, 220 Mich. 490, 190 N.W. 227; 50 C. J., sec. 40, pp. 854-55. (4) Payment of funds in question to respondent Relief Association will not violate Sections 3774 and 3778, Revised Statutes 1929, relating to the disposition of property alleged to have been stolen, purloined, embezzled or obtained by false pretenses. (a) Because the agreed statement of facts herein discloses that the property in controversy was not stolen, purloined, embezzled or obtained by false pretenses, but, on the contrary, was obtained by police officers in the course of the performance of the duties imposed upon them by law, and therefore the aforementioned sections of the statute have no application.

Frank, P. J. All concur, except Douglas, J., not voting because not a member of the court when cause was submitted.

OPINION

FRANK

Action in mandamus brought in the Circuit Court of the City of St. Louis by the St. Louis Police Relief Association against the members of the Board of Police Commissioners of said city to compel them to forthwith deliver to petitioner certain moneys now in their possession. An alternative writ of mandamus was granted which, on final hearing, was made peremptory. This appeal followed.

The St Louis Police Relief Association was organized as a corporation in the year 1900 under statutory authority (now Sec. 8978, R. S. 1929). That section reads as follows:

"Any police force organized or existing by authority of the laws of this state in any city having a population of over one hundred thousand inhabitants, and in any city of the second class, is hereby authorized and empowered to form a relief association under the general incorporation laws of this state, and to create a fund for the purpose of affording relief to such members of their organization as may become sick or disabled while in the discharge of their duties, or who may become incapacitated by long years of service, and for aiding the families of police officers who may die while in the service of any police department, and for such other similar purposes as may be set forth in their articl...