State v. City of St. Louis.

• Decision Date: 01 April 1903
• Citation: 73 S.W. 623,174 Mo. 125
• Parties: STATE ex rel. CROW, Atty. Gen., v. CITY OF ST. LOUIS et al.
• Court: Missouri Supreme Court

73 S.W. 623

174 Mo. 125

STATE ex rel. CROW, Atty. Gen., v. CITY OF ST. LOUIS et al.

Supreme Court of Missouri, Division No. 1.

April 1, 1903.

POLICEMEN — REMOVING NUISANCE FROM STREET—REIMBURSEMENT FOR EXPENSE— CONSTITUTIONAL LAW—CONSTRUCTION OF CHARTER.

1. Where a policeman, pursuant to orders, and in discharge of his duty to prevent and remove nuisances in the streets (Acts 1860-61, p. 448, § 5), shoots at a mad steer in the street, but, though using due care hits a child, for which judgment is recovered against him, the city may reimburse him, in the absence of provisions to the contrary.

2. Charter of St. Louis 1876, art. 3, § 30 (Rev. St. 1899, p. 2489), containing no punctuation marks except commas, provides the assembly shall not have power (1) to release any citizen from the payment of a lawful tax, (2) to exempt him from any burden imposed on him by law, (3) to ordain the payment of any demand not authorized and audited according to law, (4) nor to ordain or authorize the compromise of any disputed demand, or any allowance therefor or therein except as provided in the contract therefor, (5) to ordain the payment of any damages claimed for alleged injuries to person or property, "except by ordinance," etc. This was made up by adding to Charter of 1870, art. 3, § 5 (Acts 1870, p. 467), which contained the first two subdivisions, the other three and the proviso. Held, that the proviso applied to all the subdivisions, and not merely to the one immediately preceding it.

3. An ordinance appropriating the expenses that a police officer incurred and paid, while in the discharge of his duty as such officer, in removing a nuisance from a highway, as expressly required by law, does not make a donation of public money to an individual in contravention of Const. art. 4, §§ 46, 47.

Appeal from St. Louis Circuit Court; Jas. E. Withrow, Judge.

Injunction suit, on the relation of Edward C. Crow, attorney general, against the city of St. Louis and others. From an adverse judgment, defendants appeal. Reversed.

This is a proceeding by injunction to enjoin the city of St. Louis, its auditor and treasurer, from paying to the defendant William Desmond the sum of $971.30, pursuant to an ordinance of the city of St. Louis, numbered 19,716, entitled "An ordinance for the relief of William Desmond," approved March 10, 1899. Said ordinance is as follows:

                                "19,716
                      "An Ordinance for the Relief of
                           William Desmond
                

"Whereas, on the 6th day of July, eighteen hundred and ninety-two, a wild steer had escaped from the people who had charge of said animal, and was running loose upon the streets of the city of St. Louis, at or near the Four Courts building in said city; and said wild steer was charging upon the people of said streets; and there was danger that some one would be hurt thereby, and a number of persons were shooting at said animal in an endeavor to kill same and prevent accident to persons on said streets; among said persons firing shots at said animal being William Desmond, then and now acting as Chief of Detectives of the Metropolitan Police Force of the City of St. Louis, who fired such shots at the instance and under the orders of his superior officer, Chief of Police L. Harrigan; that while said Desmond was leaning out of a window of the Four Courts building, firing a shot or shots at said animal, under said directions of his chief, a shot struck one Albert Tolch, a minor, who was standing on the north side of Clark Avenue, opposite the said Four Courts building, and between Eleventh and Twelfth Streets, which said shot may or may not have been fired by the said William Desmond, who was acting under orders from said Chief Harrigan, and was acting to the best of his ability in the discharge of his duty as a city officer at the time of firing such shot or shots; and,

"Whereas, afterwards, by his next friend, the said Albert Tolch brought a suit against said Desmond in the Circuit Court of the City of St. Louis, claiming damages for being so injured, which suit was tried before a jury, which said jury rendered a verdict against said William Desmond, which resulted in a judgment against him for fifteen hundred dollars, which judgment he afterwards compromised for the sum of seven hundred and fifty dollars and costs, in all amounting to the sum of eight hundred and seventy-one dollars and thirty cents, and he also became liable for attorney's fees in the sum of one hundred dollars, making a total expended by him of nine hundred and seventy-one dollars and thirty cents; therefore,

"Be it Ordained by the Municipal Assembly of the City of St. Louis, as follows:

"Section 1. The Auditor is hereby authorized and directed to draw his warrant on the City Treasurer, in favor of William Desmond, for the sum of nine hundred and seventy-one dollars and thirty cents, and take his receipt in full of all claims against the City of St. Louis. Said warrant to be charged to appropriation for relief of William Desmond.

"Sec. 2. There is hereby appropriated and set apart out of municipal revenue the sum of nine hundred and seventy-one dollars and thirty cents to fund for the relief of William Desmond.

"Approved March 10, 1899."

The petition charges that the ordinance is contrary to the provisions of the charter of said city, and in excess of the powers of said assembly, and is null and void."

The answer admits the passage of the ordinance, and that the city and its officers intend to carry it into effect, sets up the facts substantially as recited in the preamble to the ordinance, and asserts the power and authority of the city to pass the ordinance. The plaintiff demurred generally to the answer. The court sustained the demurrer. The defendants refused to plead over. Final judgment was entered upon demurrer for the plaintiff, and the defendants appealed.

Johnson & Richards and Chas. C. Allen, for appellant Desmond. Chas. W. Bates and Wm. F. Woerner, for appellant city of St. Louis. Chas. S. Reber, for respondent.

MARSHALL, J. (after stating the facts).

William Desmond is, and at the times hereinafter mentioned was, an officer of the metropolitan police force of the city of St. Louis, being the chief of detectives. The board of police commissioners of St. Louis was created by the act of March 27, 1861. Acts 1860-61, p. 446. The original act was amended by the act of 1867 (Acts 1867, p. 179), and by section 11 of that act the members of the police force were expressly declared to be officers of the city and also officers of the state. This dual capacity was recognized as lawful, under the laws as they existed, by this court, in Carrington v. St. Louis, 89 Mo., 1 loc. cit. 214, 1 S. W. 240, 58 Am. Rep. 108. Section 11 of the act of 1867 was re-enacted as section 25 of the act of 1899. Acts 1899, p. 60. By the terms of all the acts creating the board, the city of St. Louis is required to pay all the salaries and expenses of the police (except from 1864 to 1876, when the county of St. Louis was required to pay one-fourth thereof. State ex rel. Police Commrs. v. County Court, 34 Mo. 546. But upon the separation of the city and county, in 1876, this obligation ceased).

Thus the predicates are established that the police of St. Louis are both state and city officers, and that the city is under obligation to pay the expenses of the force. The preamble to the ordinance recites, and the answer avers, and the demurrer admits, the fact to be that a mad steer was running wild in the city of St. Louis, and the people and their property were in imminent danger. when the chief of police ordered the defendant Desmond to shoot it, and thus prevent such threatened injuries; that such order came from said defendant's superior officer; that, in obedience to said order, he leaned out of the window, and with due care shot at the steer; that other persons were also shooting at the steer; that a shot struck a boy, who was on the opposite side of the street; and that suit was brought by said boy against the defendant Desmond, and a judgment rendered against him, and that the ordinance in question is intended to reimburse said defendant for the judgment and costs which he was thus obliged to pay.

This establishes the further predicate that the liability which the defendant Desmond incurred and paid, and which the ordinance is intended to relieve him from, was a liability incurred by him in the bona fide discharge of his duties as a police officer, as those duties are defined in the acts creating said police force. The act of 1861 (Acts 1860-61, § 5, p. 448) made it the duty of the police to "preserve the public peace, * * * protect the rights of persons and property, guard the public health, * * * prevent and remove nuisances in all streets, highways, water and other places." A mad steer running wild on the streets of a populous city, and threatening the lives of the people, is a nuisance on such streets. There was, apparently, on hand no gaily attired matadore, with red shawl and keen-edged sword, to remove the animal with neatness and dispatch, nor was there a Bossie Mulhall to lasso and tie the steer with speed and grace. Under the circumstances, and under the act aforesaid, it was clearly the duty of the police to remove the nuisance. It does not appear from the record how it fell out that Desmond could hit a boy on the opposite side of the street while leaning out of a window and shooting at a steer in the street below him. It would not be contended that he made a "bull's-eye" on that shot. In fact, such a remarkable exhibition of marksmanship could not even be explained upon the theory that

"Many an arrow at random sent, Hits mark the archer little meant."

It rather depends for solution upon the precedent recorded in the nursery rhyme, "He shot at the goose, and hit the gander." In short, but for the fact that the verdict of the jury in the damage suit so declared, the idea that such a thing could have...