State on Information of Dalton ex rel. Shepley v. Gamble

• Court: Missouri Supreme Court
• Writing for the Court: STORCKMAN
• Citation: State on Information of Dalton ex rel. Shepley v. Gamble, 280 S.W.2d 656, 365 Mo. 215 (Mo. 1955)
• Decision Date: 23 June 1955
• Docket Number: No. 44978,44978
• Parties: STATE of Missouri, on the information of John M. DALTON, Attorney General, ex rel. Arthur B. SHEPLEY, Jr., Relator, v. Clark R. GAMBLE, Irving Edison, Walter L. Metcalfe, Arthur B. Baer, and Frank Aschemeyer, Members of and constituting the Board of Police Commissioners of St. Louis County, Missouri, and Albert B. DuBois, Superintendent of Police of St. Louis County, Missouri, Respondents.

Page 656

280 S.W.2d 656

365 Mo. 215

STATE of Missouri, on the information of John M. DALTON Attorney General, ex rel. Arthur B. SHEPLEY, Jr., Relator, v. Clark R. GAMBLE, Irving Edison, Walter L. Metcalfe, Arthur B. Baer, and Frank Aschemeyer, Members of and constituting the Board of Police Commissioners of St. Louis County Missouri, and Albert B. DuBois, Superintendent of Police of St. Louis County, Missouri, Respondents.

No. 44978.

Supreme Court of Missouri, en Banc.

June 23, 1955.

Carroll J. Donohue, St. Louis, Lynn Meyer, Clayton, for relator.

Herbert C. Funke, Counselor of St. Louis County, Clayton, David L. Millar, St. Louis, for respondents.

Erwin Tzinberg, Clayton, for amicus curiae, Elmer E. Hilpert, University City, of counsel.

STORCKMAN, Judge.

This information in the nature of quo warranto attacks the authority of the newly created police department of St. Louis County to take over and perform the law enforcement functions heretofore vested in the sheriff and constables of St. Louis County. The proceeding, instituted by the attorney general at the relation of the acting marshal and chief of police of the city of Ladue in St. Louis County, is directed against the members of the board of police commissioners and the superintendent of police of St. Louis County. It is an original remedial writ of whih this court has jurisdiction. Sec. 4, Art. V, Constitution of Missouri 1945, V.A.M.S.

On March 28, 1950, the county of St. Louis, by a vote of its people, adopted a charter for its own government pursuant to Sec. 18, Art. VI, of the 1945 Constitution of Missouri. Art. II of the charter provided that among the 'County Officers' to be elected were four constables and a sheriff. It also provided that the 'elective County Officers * * * shall have all the powers and perform all the duties provided by law, except as otherwise provided by this charter' and in the event of a vacancy in any elective county office 'the same shall be filled by the County Supervisor subject to confirmation by a majority of the Council.' Art. III, Sec. 6 of the charter provided: 'The governing body of the County shall be the County Council which, except as otherwise provided in this charter, shall have and exercise all the powers and duties vested in counties and county governing bodies by the Constitution and laws of the State of Missouri and by this charter. All legislative power of the County shall be vested in the Council.'

Section 22 of Art. III of the charter provided: 'Pursuant to and in conformity with the Constitution of Missouri and without limiting the generality of the powers vested in the Council by this Charter, the Council shall have, by ordinance, the power: * * * (2) To provide for the compensation of elective County officers unless such compensation of all elective officers shall remain the same as now set by law until changed by ordinance.'

The charter as permitted by the constitution provided for its amendment 'By ordinance adopted by the Council and submitted to the voters at a general or special election and approved by a majority of those voting on the proposition;' St. Louis County Charter, Art. VIII, Sec. 82(2). Thereafter, on August 25, 1954, the county council enacted Ordinance No. 500 which provided for the submission to the voters of St. Louis County of a proposal to amend the county charter. This proposal was adopted by the voters of St. Louis County at the November 2, 1954, election.

The central purpose of the amendment is shown by Sec. 4.10, Art. II of the charter as amended, which reads as follows:

'All powers and duties of the offices of Sheriff and Constables of the County with respect to preservation of order, prevention of crimes, and misdemeanors, apprehension and arrest, conserving the peace, and other police and law enforcement functions other than those relating to civil actions and the detention, care, custody and control of persons or prisoners in the County Jail, provided by law, shall be vested in and performed by the Superintendent of Police and the Department of Police of the County as hereinafter provided, and the Sheriff and Constables of the County shall have no power or duties with respect to the same except when called upon by the Superintendent of Police as hereinafter provided.'

Section 49, Article V of the amendment makes provision for a department of police consisting of a board of five police commissioners, a superintendent of police and the department personnel. The superintendent of police is appointed by the board of police commissioners and the superintendent selects the other personnel on the basis of merit.

The substantial duties and powers of the superintendent and the police department appear in the charter as amended, Sec. 49.10 of Art. V, in part, as follows:

'The Superintendent of Police and the Department of Police, including the duly authorized officers, agents and deputized representatives thereof shall have all the powers and perform all the duties of the Sheriff and the Constables, as provided by law, except those powers and duties expressly vested in the Sheriff and Constables of the County under Section 4.10 of this Charter. In addition thereto, the Superintendent and the Department of Police shall enforce the ordinances and orders of the Council, and have such other powers and duties as may be provided by ordinances of the Council, including, but not limited to, the performance of police duties in incorporated areas of the County under contract authorized or entered into the Council with the governing body of any such incorporated area. He shall also have the power to deputize members of the police departments of the various municipalities of the County under such standards, conditions and regulations as the Board of Police Commissioners shall approve.'

Other parts of the charter amendment are more or less definitive and in aid of the provisions quoted. The St. Louis County Council on February 11, 1955, adopted its Ordinance No. 570 implementing the charter amendment with respect to the creation, organization, administration and operation of the police department. Under the terms of the amendment and Ordinance No. 570, the transfer of functions from the offices of sheriff and constables to the department of police is scheduled to become effective July 1, 1955.

The charter of St. Louis County, the amendment, the ordinances attacked and the form of ballot are all before us in their entirety and there is no dispute about the facts. We have been aided by able briefs of the parties and of the St. Louis County Bar Association as amicus curiae. The case is thus submitted without oral argument.

The relator makes numerous attacks upon the right and authority of the respondents to hold and to exercise the powers and duties of the offices of members of the board of police commissioners and of superintendent of police of St. Louis County. Generally, the essence of these charges is the contention that the sheriff and constables of St. Louis County are not county officers within the meaning of Sec. 18 of Art. VI of the Constitution of 1945, but, on the other hand, are state officers performing governmental functions which cannot be taken from them by the charter of St. Louis County. Most of the other contentions are ancillary or supplementary to this central proposition.

If St. Louis County has the right to do what it is undertaking, its authority must be derived from Sec. 18, Art. VI, of the 1945 Constitution. This being so, we must determine the intent and purpose of these constitutional provisions. The section first appeared in the 1945 Constitution and is wholly new. So far as we have been able to discover, it has never been interpreted or construed by this court. Because of the novel provisions of the section, prior decisions are of little help. Fortunately, the intent is expressed with sufficient clarity that few, if any, construction aids are needed.

The sections of Article VI with which we are chiefly concerned are:

'Sec. 18(a). County government by special charter--limitation * * * Any county having more than 85,000 inhabitants, according to the census of the Unites States, may frame and adopt and amend a charter for its own government as provided in this article, and upon such adoption shall be a body corporate and politic.

'Sec. 18(b). Provisions required in county charters * * * The charter shall provide for its amendment, for the form of the county government, the number, kinds, manner of selection, terms of office and salaries of the county officers, and for the exercise of all powers and duties of counties and county officers prescribed by the constitution and laws of the state.

'Sec. 18(c). Provisions authorized in county charters--participation by county in government of other local units * * * The charter may provide for the vesting and exercise of legislative power pertaining to public health, police and traffic, building construction, and planning and zoning, in the part of the county outside incorporated cities; and it may provide, or authorize its governing body to provide, the terms upon which the county shall perform any of the services and functions of any municipality, or political subdivision in the county, except school districts, when accepted by vote of a majority of the qualified electors voting thereon in the municipality or subdivision, which acceptance may be revoked by like vote.

* * *

* * *

'Sec. 18(e). Laws affecting charter counties--limitations * * * Laws shall be enacted providing for free and open elections in such counties, and laws may be enacted providing the number and salaries of the judicial officers therein as provided by this constitution and by law, but no law shall provide for any other office or employee of the county of fix the salary of any of its officers or employees.'

St. Louis County, regardless of its charter, remains a legal subdivision of the state. Art. VI, Secs. 1 and...