State ex rel. Wander v. Kimmel

• Decision Date: 02 April 1914
• Citation: 165 S.W. 1067,256 Mo. 611
• Parties: THE STATE ex rel. ARTHUR E. WANDER and ST. LOUIS POLICE RELIEF ASSOCIATION v. KARL KIMMEL, Judge, and THOMAS J. HAUK, Clerk, of First District Police Court of City of St. Louis
• Court: Missouri Supreme Court

165 S.W. 1067

256 Mo. 611

THE STATE ex rel. ARTHUR E. WANDER and ST. LOUIS POLICE RELIEF ASSOCIATION v. KARL KIMMEL, Judge, and THOMAS J. HAUK, Clerk, of First District Police Court of City of St. Louis

Supreme Court of Missouri

April 2, 1914

Writ denied.

Johnson Rutledge & Lashly, Thomas G. Rutledge and J. M. Lashly for relators.

(1) Sec. 3459, R. S. 1909, makes definite provision for the allowance of the witness fee to the relator herein, Officer Wander, for the exclusive use and benefit of relator St Louis Police Relief Association. It does not fix the amount of the fee, but provides for the payment of the fees otherwise fixed by law. This section does not exclude any class of police officers from receiving witness fees. It assumes, under the statute law of this State, that all police officers, as well as other witnesses, will get witness fees and provides that such officers as are members of any police relief association shall turn over their fees to the association as a consideration for their membership, and in partial compensation for the benefits derived by them and their families from membership in such association. State ex rel. v. Gifford, 70 Mo.App. 522. (2) Sec. 5388, R. S 1909, does not refer to police courts (either before or after amendment) and their exclusion from the enumeration shows the legislative intent that policemen should be entitled to witness fees in police court cases. The section refers to criminal cases, but does not mention civil suits. Since action in police courts are civil suits, it is plain that they were not included, or meant to be. Sec. 1863, Ordinances of St. Louis, 1912; Cannon v. Daniel, 188 Mo. 207; Hannibal v. Dudley, 158 Mo.App. 261; Gallatin v Tarwater, 143 Mo. 40; Delaney v. Police Court, 167 Mo. 667; St. Louis v. Weitzel, 130 Mo. 612. The amendment of 1913 to this section shows the general intent of the Legislature that these police officers should receive witness fees. (3) A proper construction of ordinance 1897, Code 1912, authorizes the payment of witness fees to all police officers. The only persons excluded by the ordinance from receiving witness fees in police courts are "city officers and prosecutors," and under the statute and charter, it should be construed as not referring to the metropolitan police, who do not come under either of these classifications. State ex rel. v. Walker, 132 Mo. 211; State ex rel. v. Gifford, 70 Mo.App. 522. The power given by the charter to "establish" witness fees in police courts does not include the power to exclude police officers from receiving fees. St. Louis v. Quarry Co., 148 S.W. 948; Peters v. St. Louis, 226 Mo. 62. (4) In so far as policemen are state officers, the city of St. Louis would have no power to pass ordinances limiting their State-given rights or powers, nor to discriminate against them, nor to pass an ordinance in conflict with the State statutes on the same subject. Whether they shall receive any other compensation in addition to their salary is left to the board of police commissioners. Badgley v. St. Louis, 149 Mo. 122; State ex rel. v. Stobie, 194 Mo. 14; State ex rel. v. Police Comrs., 184 Mo. 109; St. Louis v. Meyer, 185 Mo. 583; State ex rel. v. Mason, 153 Mo. 23; State ex rel. v. Telephone Co., 189 Mo. 83; Constitution, sec. 23, art. 9; R. S. 1909, secs. 9802, 9810. (5) Section 3459, R. S. 1909, creates no new right in favor of any one, nor does it exclude any one from the enjoyment of any right previously possessed. As the law existed in 1881, at the passage of this act, policemen and all other persons received witness fees. There was no law denying them fees. The Legislature had a right to assume that all police officers received fees. While expressly providing for the allowance of witness fees to members of police relief associations, it directs that they be used for the maintenance of such associations, and is a part of the enabling act providing for the organization of police relief associations, and particularly providing for one method of maintenance of these associations by the payment to them by its members of all witness fees earned by them. (a) The law is not special or exclusive. (b) It is not a grant of public money to any individual or association. (c) It does not seek to authorize a political subdivision of the State to grant public money to any one. (d) It does not seek to deny to any person within the jurisdiction of the United States equal protection of the laws. State ex rel. v. Herman, 75 Mo. 354; Lynch v. Murphy, 119 Mo. 163; White v. Railroad, 230 Mo. 287; State v. Rawlings, 232 Mo. 544; Allen v. Board, 81 N. J. L. 135; Budd v. Hancock, 66 N. J. L. 133; Trustees v. Boone, 29 Hun, 391, 93 N.Y. 313; Bullock v. Bilheimer, 175 Ind. 428. (6) Under the doctrine of stare decisis this question is settled in favor of relators. State ex rel. v. Gifford, 70 Mo.App. 522. (7) The validity and constitutionality of a statute is to be presumed. There is likewise a presumption against unconstitutionality and all doubts are to be resolved in favor of the validity of the act. Humes v. Railroad, 82 Mo. 221; State ex inf. v. Life Ins. Co., 150 Mo. 135; Phillips v. Railroad, 86 Mo. 543.

William E. Baird and Robert Burkham for respondents.

(1) Sec. 3459, R. S. 1909, creates an arbitrary and, therefore, an unconstitutional discrimination between police officers who are members of relief associations and those who are not. (a) A discrimination actually exists: Secs. 3459, 5388, R. S. 1909. (b) The discrimination is arbitrary and therefore unconstitutional: Missouri Constitution, art. 4, sec. 53, clause 26; State ex rel. v. Tolle, 71 Mo. 645; State ex rel. v. Miller, 100 Mo. 439; State v. Loomis, 115 Mo. 307; State v. Julow, 129 Mo. 163; State ex rel. v. Railroad, 246 Mo. 512; State v. Baskowitz, 250 Mo. 82. (2) Sec. 3459, R. S. 1909, creates an arbitrary and, therefore, an unconstitutional discrimination between police officers of the city of St. Louis, the discrimination consisting in this: That under the statute, police officers who are members of the St. Louis Police Relief Association are entitled to witness fees in police courts, whereas, under a valid ordinance covering all city officers, police officers who do not belong to this association are prohibited from receiving witness fees in the same courts. 1st. The ordinance referred to (Sec. 1897, Revised Code, St. Louis, 1912), excludes police from the fee privilege. This is seen from the following: (a) The history of the ordinance. (b) The ordinance taken in connection with Sec. 9825, R. S. 1909. Carrington v. St. Louis, 89 Mo. 208; State ex rel. v. St. Louis, 174 Mo. 125. (c) The ordinance taken in connection with its long continued interpretation. State ex rel. v. William Jewell College, 234 Mo. 299; Timmonds v. Kennish, 244 Mo. 318; Construction Co. v. Ice Rink Co., 242 Mo. 241. (d) The ordinance in connection with its purpose. 2nd. The ordinance as interpreted above is valid for (a) St. Louis has always possessed plenary control over witness fees in its own courts. Art. 3, sec. 26, clause 8, Charter; Charter of 1835, sec. 32; Charter of 1839, art. 3, sec. 1, clause 34; Revised Ordinances of St. Louis, 1843, p. 324. (b) A witness fee is not a right but only a privilege granted. Healy v. Hillsborough County, 70 N.H. 588; Floyd County v. Black, 65 Ga. 384; Shawnee County v. Ballinger, 20 Kan. 590; Lewis v. Wake County, 74 N.C. 194; 40 Cyc. 2181. (c) A witness fee is not part of a police officer's compensation. (d) The ordinance is in accord with the policy of the State: Sec. 5388, R. S. 1909. (e) The Legislature intended that St. Louis should control its own courts. Authorities cited under "a," above; Secs. 3459, 5388, R. S. 1909. (3) So much of section 3459 as provides for the payment of witness fees to the police relief fund is in reality a grant of public money to a private association, and in reality requires municipalities to grant public money to a private association. As such it is unconstitutional. Constitution, art. 4, secs. 46 and 47. 1st. History of constitutional provisions, court decisions and legislation showing the policy of Missouri on the subject of pensions or grants to public officers. State ex rel. v. Ziegenhein, 144 Mo. 283. 2nd. The St. Louis Police Relief Association is a private corporation. 3rd. The St. Louis Police Relief Association exists for a private purpose. Constitution of St. Louis Police Relief Association, art. 4. 4th. The Legislature may not constitutionally authorize St. Louis to pay over public money to the St. Louis Police Relief Association. State ex rel. v. St. Louis, 216 Mo. 47. 5th. The Legislature, in the statutes here considered, has attempted by indirection to make a grant of public money to a private association. R. S. 1909, secs. 3459, 5388. 6th. The single case cited by relators, Trustee of Exempt Firemen's Fund v. Boone, 29 Hun (N.Y.), 391, is valueless for three reasons, viz.: (a) The provisions of the New York Constitution respecting grants of public funds are less strict than those of the Missouri Constitution. 1 Dillon, Mun. Corps. (5 Ed.), sec. 430; People ex rel. v. French, 46 Hun, 232; People ex rel. v. Andrews, 89 Hun, 452; People v. Cooperage Co., 187 N.Y. 142; State ex rel. v. St. Louis, 216 Mo. 47. (b) This decision is generally criticized. Aetna Ins. Co. v. Jones, 78 S.C. 445; Association v. Wood, 39 Pa. St. 73. (c) The doctrine of this case is repudiated in Missouri. State ex rel. v. Ziegenhein, 144 Mo. 283.

OPINION

In Banc

Mandamus.

LAMM C. J.

-- This is an original proceeding in mandamus. One Lile was fined in the First District Police Court of St. Louis for violating a city ordinance regulating street traffic. Relator Wander, a member of the city's police force and also a member of his...