State v. Mason

• Decision Date: 05 December 1899
• Parties: STATE ex rel. HAWES et al., Police Com'rs, v. MASON, City Auditor.
• Court: Missouri Supreme Court

54 S.W. 524

153 Mo. 23

STATE ex rel. HAWES et al., Police Com'rs, v. MASON, City Auditor.

Supreme Court of Missouri.

December 5, 1899.

MUNICIPAL CORPORATIONS — POLICE DEPARTMENT — ACT REGULATING — VALIDITY — OBSERVANCE BY APPROPRIATIONS — METROPOLITAN POLICE BOARD — POWER OF APPOINTMENT — LIMITATION — DELEGATION OF LEGISLATIVE POWER — CONSTITUTIONAL LAW — SPECIAL LEGISLATION — MANDAMUS — CITY AUDITOR — MINISTERIAL DUTY — NECESSARY PARTY.

1. The act of March 15, 1899 (Laws 1899, p. 51), applying to and reorganizing the police department of the city of St. Louis under a metropolitan police board, authorizes the board (section 6) to appoint, enroll, and employ a permanent police force, and provides that its various divisions shall be constituted of not less than specified numbers, which shall be increased to such additional force as extraordinary emergencies may require. Held to limit the permanent force to the numbers specified, and that it was not a delegation to the board of power to appoint permanent policemen ad libitum.

2. The act was not violative of Const. art. 10, § 10, prohibiting the general assembly from imposing taxes on cities for municipal purposes, because it requires the city (section 13) to support the police department out of its revenues, since the purpose for which the department was created is not a municipal, but a state, function.

3. It is no objection to such act that it requires the city (section 13) to support the police department out of its revenues, in preference to other equally necessary departments, since the state has the same power over the city's revenues that it has over its own.

4. An objection that such act is special legislation, in violation of Const. art. 4, §§ 53, 54, does not apply, as the city is created by the constitution, and the purpose of the act is to "carry the constitution into effect," as authorized by section 15 of the schedule.

5. The act is not a violation of section 1 of the fourteenth amendment to the federal constitution, in that it requires the city (section 13) to support the department out of its revenues, as conceding that the city can have in its treasury funds as a private proprietor discharged from state control in preserving public peace and order, as the revenues clearly refer to moneys derived from taxation, and other municipal funds not impressed with a trust, and which may be applied by the state to other public municipal uses than those originally designated, and hence the federal question could not arise.

6. The requirement of section 13 of such act, that claims against the board and salary rolls, when certified by the board, shall be duly audited and paid out of any moneys in the city treasury not appropriated to specific purposes enumerated thereby, imposes on the city auditor a ministerial duty to draw his warrant for such expenses, enforceable by mandamus, though no appropriation has been made therefor as such section also requires, and the city is organized under a constitutional freeholders' charter, prohibiting warrants on any appropriation unless there is an unexpended balance sufficient to cover them, and money in the treasury to pay them.

7. An appropriation made March 15, 1899, by an ordinance of the municipal assembly under Laws 1860-61, p. 446, then in force, for its police department, not restricting it to the payment of a force appointed under any special act of the legislature, was a pro tanto compliance with such act, which repeals the former law, and requires appropriations (section 13) for the increased force of the department organized thereunder; and the fact that the ordinance makes certain artificial divisions of the fund is immaterial.

8. A city is not a necessary party to a mandamus proceeding to compel its auditor to perform a ministerial duty by issuing warrants to pay the expenses of its police department.

In banc. Application for mandamus by the state, on the relation of Harry B. Hawes and others, police commissioners, against Isaac M. Mason, auditor of the city of St. Louis. A peremptory writ ordered to issue as prayed.

This is an original proceeding commenced in this court by the police commissioners of St. Louis to obtain a peremptory writ of mandamus against the city auditor of St. Louis to compel him to issue warrants for the payment of the monthly pay roll and police expenses for the month of August, 1899. The return alleges the unconstitutionality of the act of March 15, 1899, under which relators are proceeding as police commissioners, and denies that any appropriation has been made by the city for the payment of this pay roll. In view of the fact that nearly 1,000 peace officers have been serving the state for three months without their monthly wages, the cause has been docketed and advanced as rapidly as the magnitude of the cause and the practice of the court would permit.

Since the year 1861 a metropolitan police system has been established in the city of St. Louis. The original act will be found in Laws Mo. 1860-61, p. 446. That act supplanted the municipal system which had existed prior to that time, and provided in the third section that a board of police, to be called the "Police Commissioners of the City of St. Louis," consisting of four commissioners, should be appointed by the governor; and these, together with the mayor of the city, were authorized and required to appoint and employ a permanent police force for said city. The number of policemen was limited to the number then employed by the city. It was provided by the sixth section of the act that for "extraordinary emergencies the board might raise such additional force as the exigencies might in their judgment demand." As indicative of the purpose of the legislature, it may be noted that section 14 of the act of 1861 provided for the organization of the board and notification of the city authorities, and continued: "From and after the first meeting aforesaid, the whole of the then existing police force of the city of St. Louis, both officers and men, shall pass under the exclusive management and control of the said board, and be subject to no other control, and entitled to receive no orders or pay (except arrearages then due) from any other authority, and shall so continue, subject, however, to removal or suspension at the discretion of said board, and with power in said board to fill vacancies until the board shall publicly declare that the organization of the police force created by this act is complete. Upon such public declaration, and from the time thereof thenceforward, all ordinances of the city of St. Louis are hereby annulled and declared void so far as they conflict with this act or assume or confer upon the mayor or any other person or persons the power to appoint, dismiss, or in any other way, to any extent, employ or control any police force organized or to be organized under said ordinance, or any of them; and from and after such public declaration as aforesaid, the police force organized or which may be organized under such ordinance, or any of them, shall cease to exist and all its functions and powers to be at an end." Section 15 of the act made it the duty of the board to estimate the sum of money required for each current fiscal year, to certify the same to the board of common council of the city of St. Louis, who were required in the first appropriation ordinance of the fiscal year to set apart and appropriate the amount so certified, payable out of the net annual revenue of the city of St. Louis, "after first having deducted the amount necessary to pay the interest upon the indebtedness of said city, the amount necessary for the expenses of the city hospital and health department, the amount necessary for lighting the city with gas, and the sum of ten thousand dollars required by law to be placed to the credit of the sinking fund of said city." It was also provided in the same section that in case the common council failed to make the appropriation, or the disbursing officer of the city failed to pay the money over, then the board were authorized to issue certificates of indebtedness for the amount, bearing interest at 10 per cent. per annum, payable not more than 12 months after date; and they were authorized to raise money by pledging or selling such certificates, which were receivable at par in the payment of city taxes, and binding as obligations of the city. Under section 16 of the act, penalties by fine and imprisonment were provided against any officer of the municipality who should hinder or obstruct the organization of the police established by the act, and in addition to fine and imprisonment it was provided that the party so convicted should thereafter be forever disqualified from exercising any office or employment under the city. On the 5th day of February, 1864, this act was amended by the general assembly so as to require the county of St. Louis to pay one-fourth of the expense of maintaining this police force. The county court resisted the payment, insisting the act was unconstitutional for various reasons, but its constitutionality was sustained after the most thorough argument. State v. County Court of St. Louis Co., 34 Mo. 546. The act of 1861 was afterwards amended at different times, and twice construed by this court, in State v. Board of Police Com'rs of St. Louis, 88 Mo. 144, and Francis v. Blair, 89 Mo. 291, 1 S. W. 297, and Id., 96 Mo. 515, 9 S. W. 894. When the people adopted the constitution of 1875, they provided that the city of St. Louis might frame its own charter, which, however, should be in harmony with and subject to the laws of Missouri. In that charter (article 3, § 26, subsec. 2) it was expressly provided "that no system of police shall be established or maintained other than the present metropolitan system as long as the same is established by law." Accordingly no effort has ever been made by the city to substitute a municipal system of its own in lieu of that...