State v. Jost

• Decision Date: 02 June 1916
• Docket Number: No. 18549.,18549.
• Citation: 269 Mo. 248,191 S.W. 38
• Parties: STATE ex rel. TRUMAN v. JOST et al., Board of Police Com'rs.
• Court: Missouri Supreme Court

191 S.W. 38

269 Mo. 248

STATE ex rel. TRUMAN v. JOST et al., Board of Police Com'rs.

No. 18549.

Supreme Court of Missouri, Division No. 1.

June 2, 1916.

On Rehearing, December 20, 1916.

Appeal from Circuit Court, Jackson County; Joseph A. Guthrie, Judge.

Application for mandamus by the State, on relation of Ralph E. Truman, against Henry L. Jost and others, Board of Police Commissioners of Kansas City. Judgment denying peremptory writ, and relator appeals. Affirmed on original hearing and on rehearing.

On January 6, 1913, relator filed in the circuit court aforesaid a petition for a writ of mandamus against the police commissioners of said city, who were then in authority. On April 28, 1913, an amended petition was filed, making the present respondents defendants in said action. The purpose of this proceeding is to compel respondents, as police commissioners of Kansas City, Mo., to issue to relator a warrant for $725.83, drawn upon the treasurer or other disbursing officer of said city, and to do every other act and thing necessary to be done by them to secure relator his alleged full compensation of $1,380 per annum, during the period between September 15, 1909, and February 17, 1912, as provided by sections 9778, 9779, R. S. 1909, or show cause why they have not done so. The petition alleged:

That section 6192, R. S. 1899, provided for the appointment of relator as a police detective in said city; "that having previously served a probationary period of one year, relator was, upon February 17, 1909, appointed to the abovementioned office of police detective, for a term of three years, subject, however, to five suspensions or removal for cause, and further subject to discharge without cause, motive, or hearing, if at any time, in the opinion of the board, the police force were larger than the interests of the public require, or if there are not sufficient funds with which to pay expenses of said police department as then organized."

It is then averred that the office of police detective was abolished June 14, 1909, by the Forty-Fifth General Assembly of Missouri; that on said date said section 6192, R. S. 1899, was repealed and a new section enacted in lieu thereof (Acts 1909, p. 319), now known as section 9787, R. S. 1909, of Missouri, and which provides that police detectives should be paid $1,380 per annum. It is further alleged that after the passage of above act, and upon June 14, 1909, relator was duly and legally appointed to the office of police detective, for a term of three years, beginning on said June 14, 1909, and immediately accepted said office, and continuously thereafter, until June, 1912, occupied the same and performed all the duties relating thereto, and thereby became entitled to the salary and emoluments of said office. It is averred that from June 14, 1909, to September 15, 1909, relator was paid at the rate of $1,380 per annum; that from September 15, 1909, to February 17, 1912, he was paid at the rate of $1,080 per annum; that by reason of the premises, he is entitled to his unpaid salary of $725.83, etc. An alternative writ of mandamus, substantially following the language of the petition aforesaid, was issued, and respondents, on May 10, 1913, filed their return thereto, and allege in substance: (1) That the circuit court was without jurisdiction to try the case, in this form of action. (2) They admit that they constitute the present board of police commissioners of Kansas City, Mo. (3) They say that relator, having served more than one year of probationary service as police detective prior to February 17, 1909, was, on said date, appointed police detective for three years, at a compensation of $1,080 per annum, or $90 per month, as provided in section 6192, R. S. 1899; that from the date of said appointment, up to and including February 17, 1912, relator accepted the sum of $1,080 per year as full compensation for his services, except that by mistake he was paid at the rate of $1,380 per annum from June 15, 1909, to September 15, 1909; that when said mistake was discovered, he was thereafter paid, and accepted, the sum of $1,080 per year, in full satisfaction of his salary from said September 15, 1909, until February, 1912. It is further averred that relator's salary, in view of section 48 of article 4, and section 8 of article 14, of the Constitution of Missouri could not be increased during his term of office from February 17, 1909, to February 17, 1912. (4) It is further averred by respondents that from 1909 to 1912, inclusive, there were employed as many officers in the police department of said city as its revenue would permit; that during each of said years, the police department expended all of the money apportioned or appropriated to it; that the Police Commissioners of Kansas City have never had, and have not now, enough money to pay any salaries, or parts of salaries, except as heretofore paid; that if the salaries of police officers in the service at the time of the enactment of section 9787, R. S. 1909, had been increased by said statutes to take effect June 14, 1909, the board of commissioners aforesaid would have been compelled to reduce the number of officers employed in said police department, and plaintiff would have been discharged; that relator held his position during all of said time, by virtue of the salaries fixed when he was appointed in February, 1909, whereby said board of commissioners were enabled to retain him in their service. The return further avers that relator, with full knowledge of all the facts aforesaid, accepted the amount due him twice each month, without objection and in full satisfaction of the amount which Kansas City claimed was due him; that by continuing in said department and accepting the salary paid him the relator is now estopped to claim any greater or additional compensation. The reply of relator put in issue the facts set out in respondent's return. Such portions of the evidence as may be necessary will be considered in the opinion. The trial court found, in substance, that the office held by relator was not abolished by the act of 1909 (Acts 1909, p. 319); that relator was a municipal officer of Kansas City, Mo., within the contemplation of section 8, art. 14, of our Constitution; and that his salary could not be increased during his term of office. The peremptory writ was accordingly denied, and judgment in due form entered in behalf of respondents. Relator filed motions for new trial and in arrest of judgment, both of which were overruled, and the cause duly appealed to this court.

M. E. Casey, Frank D. Rader, and James M. Rader, all of Kansas City, for appellant. J. A. Harzfeld, A. F. Evans, Hunt C. Moore, and A. F. Smith, all of Kansas City, for respondents.

RAILEY, C. (after stating the facts as above).

I. Section 8 of article 14 of the present Constitution provides, that:

"The compensation or fees of no state, county or municipal officer shall be increased during his term of office; nor shall the term of any office be extended for a longer period than that for which such officer was elected or appointed."

Did relator, when he was appointed police detective on February 17, 1909, for three years from said date, at a salary of $1,080 per annum, come within the purview of section 8, art. 14, supra? The safeguards thrown about relator's position, by sections 6189, 6190-6192, and 6193, R. S. 1899, at the time of his appointment on February 17, 1909, constituted him both a state and municipal officer, and precluded his salary from being raised as long as he held the office under said appointment. In State ex rel. v. Mason, 153 Mo. loc. cit. 43, 44, 54 S. W. loc. cit. 529, the court in banc, speaking through Judge Gantt, in construing a law relating to police officers, police detectives, etc., similar in some respects to the above sections of R. S. 1899, said:

"Wherever the Legislature has the right to assume control of a municipal office, it has likewise the right to compel the city to provide for defraying the expenses of such office, and while it is sometimes difficult to draw the line and distinguish whether a given office is of a public or state character, or is simply one to subserve a municipal function, it is almost universally conceded that police boards and metropolitan police forces are state officers and fall clearly within legislative control."

The conclusion reached in the above case was reaffirmed by the court in banc in State ex rel. v. Police Commissioners, 184 Mo. loc. cit. 133, 71 S. W. 215, 88 S. W. 27, cited by appellant.

It is evident that if a felony should be committed in Kansas City, Mo., and there were good grounds for believing that the perpetrator had escaped to some distant part of the state, the respondents would have been justified in calling upon relator, while he was police detective, to locate the criminal and assist in bringing him to trial. These officers who are acting as detectives may not only be sent to various parts of the state, if necessary, in the performance of their duty, but they are likewise municipal officers, as they draw their pay from the city; perform services therein; are subject to the control of the police board thereof; hold their office for a definite time, and their salaries are fixed by legislative enactments.

Without extending the discussion of this subject further, we agree with the trial court that if relator was appointed and held the office of police detective under sections 6192, 6193, R. S. 1899, while...