The State ex rel. Hawes v. Mason

• Decision Date: 19 December 1899
• Citation: 54 S.W. 524,153 Mo. 23
• Parties: THE STATE ex rel. HAWES et al. v. MASON
• Court: Missouri Supreme Court

54 S.W. 524

153 Mo. 23

THE STATE ex rel. HAWES et al. v. MASON

Supreme Court of Missouri

December 19, 1899

Peremptory writ awarded.

F. N Judson, John H. Overall and R. H. Kern for relators.

(1) The Act of March 15, 1899, is constitutional. First. It is established law that the State has the power to impose a police force upon its municipalities, and compel their support out of the municipal revenues derived from taxation. 1 Dillon on Mun. Corp. (4 Ed.), secs. 58 and 61; Tiedeman on Mun. Corp., sec. 18; Cooley on Taxation, p. 481; State ex rel. v. County Court of St. Louis County, 34 Mo. 546; Mayor of Baltimore v. State ex rel., 15 Md. 376; People v. Draper, 15 N.Y. 532; People v Mahaney, 13 Mich. 481; State ex rel. v. Hunter, 38 Kan. 578; Police Commissioners v. Louisville, 2 Bush (Ky.) 797; Diamond v. Cain, 21 La. Ann. 309. Second. The State can make this power effective by applying the municipal revenues directly to the support of the police establishment, this being done in the exercise of its sovereign control over the revenues of its cities and counties. 1 Dillon on Mun. Corp. (1 Ed.), sec. 62; Comm v. County Court, 34 Mo. 546; State ex rel. v. Field, 119 Mo. 614; State v. Owsley, 122 Mo. 68; State ex rel. v. Pike County, 144 Mo. 275. (2) The contention of respondent that the Act involves an unconstitutional delegation of legislative power, is unfounded. First. This contention is based upon the alleged power to increase the force contained in section 6, which is construed by counsel to give the board the power to increase the permanent police force ad libitum. But even if this construction is correct, there is no attempt in this case to exercise such power, and it will be time enough to determine whether the Act assumes to give such power when the board assumes to exercise it. People v. Mahaney, 13 Mich. 481. The power to increase is clearly separable from the power to appoint the force in the Act. The invalidity of the power to increase can not possibly affect the validity of the power to appoint. People v. Mahaney, 13 Mich. 481; Tarkio v. Cook, 120 Mo. 1; Grimes v. Eddy, 126 Mo. 168; State v. Bockstruck, 136 Mo. 335. Second. The construction upon which the contention is based is erroneous. The Act properly construed does not authorize the commissioners to increase the permanent police force ad libitum, and only differs from the Act of 1861 in that it contains a definite requirement not only as to the salaries but number of the force, leaving the city free to increase the force above the minimum, the only increase which the board is authorized to make without the city's consent being the temporary increase for extraordinary emergencies, as in the Act of 1861. Third. But even if there was any doubt as to the proper construction of the Act, and conceding for the argument the contention of counsel, that the effect of their construction would invalidate the Act, the court is bound to give the Act a construction in case of doubt which would make it constitutional. Black on Interp. of Laws, pp. 93 and 94; Parsons v. Bedford, 3 Peters 433. Fourth. But counsel's contention as to the effect of their construction is also erroneous. Even if the Act is construed as conferring upon the board of police commissioners the power to increase the permanent force, such power to increase would not be an unlawful delegation of legislative power, but would be the delegation of a mere administrative or executive function. 6 Am. and Eng. Ency. of Law (2 Ed.), p. 1029; Locke's Appeal, 72 Pa. St. 498; Railroad v. Comm., 1 Ohio St. 88; Field v. Clark, 143 U.S. 694. It may or may not be unwise legislation to omit providing the maximum increase, but the question involved is not of the wisdom of the legislation, but the power. Pueblo Co. v. Smith, 22 Colo. 534; Morris v. People, 8 Colo.App. 379; Ex parte Bassit, 90 Va. 679; Nelson v. Troy, 11 Wash. 435; State v. Bicker, 3 So. Dak. 29; In re Gilson, 34 Kan. 641; Winston v. Stone, 43 S.W. 338; Johnson v. Martin, 75 Kan. 33; State v. Higgins, 125 Mo. 364; Newark v. Lyon, 53 N. J. L. 632. (3) The Act of March 15, 1899, is violative of no provision of the constitution. It is not violative of section 10 of article X. There is no tax in this case imposed upon municipal corporations for municipal purposes. 1 Dillon on Mun. Corp. (4 Ed.), sec. 141; Ewing v. Hoblitzelle, 85 Mo. 64; State ex rel. v. Field, 119 Mo. 614; State v. Owsley, 122 Mo. 68; State v. Board of Education, 141 Mo. 49. (4) Nor is the Act violative of sections 53 and 54 of article IV of the Constitution. This objection also applied to the law of 1861, and that Act was recognized and adopted in the charter of St. Louis, adopted under the Constitution of 1875. State v. Miller, 104 Mo. 339; State v. Bell, 119 Mo. 470; State v. Arnold, 136 Mo. 446; State ex rel. v. Miller, 104 Mo. 339; Dunn v. Railroad, 131 Mo. 4; State v. Shields, 4 Mo.App. 59. It has been repeatedly held by this court that legislation in pursuance of the constitutional direction can not be local or special in any sense. State ex rel. v. Tolley, 121 Mo. 645; State ex rel. v. Yancey, 123 Mo. 391; Spalding v. Brady, 128 Mo. 653; State ex rel. v. Higgins, 125 Mo. 364; Kansas City v. Stegmiller, 52 S.W. 723. (5) The Act is not violative of section 1 of the Fourteenth Amendment of the Constitution of the United States. It does not deprive the city of property without due process of law. Dillon on Mun. Corp. (4 Ed.), sec. 61; State ex rel. v. St. Louis County Court, 34 Mo. 546. (6) The writ of mandamus was properly issued from this court against respondent to compel the payment of the pay roll in question. (a) General principles governing issuance of the writ. State v. Francis, 95 Mo. 57; Mansfield v. Fuller, 50 Mo. 339; State v. Howard Co., 39 Mo. 375; State v. Bordelon, 4 Cal. 177; McCauley v. Brooks, 16 Cal. 47; High on Extra. Legal Rem., secs. 324 and 325; Dillon on Mun. Corp., sec. 831. (b) The Constitution vests original jurisdiction in this court to issue writs of mandamus. State v. Walbridge, 123 Mo. 524; State v. Philips, 97 Mo. 331; State v. Tracy, 94 Mo. 220; State v. Treasurer of Callaway Co., 43 Mo. 228; State ex rel. v. St. Louis Court of Appeals, 99 Mo. 221. (c) Under the Act in question there is a clear ministerial duty imposed upon respondent to audit and pay the claims and salary-rolls certified by the police board. Mansfield v. Fuller, 50 Mo. 338; State v. Oliver, 116 Mo. 194; Merrill on Mandamus, secs. 126, 104 and 105; High on Extra. Legal Rem., sec. 351; State v. Kennedy, 10 Mont. 488; People v. Flagg, 16 Barb. 503; State v. Mount, 21 La. Ann. 352; State v. Buffalo Co., 6 Neb. 454. (7) The Act of itself makes an appropriation, as in the original Act of 1861, and no appropriation by the municipal assembly was necessary. Reynolds v. Taylor, 43 Ala. 420; Gilbert v. Moody, 25 P. 1092; San Francisco v. Dunn, 69 Cal. 73; State v. Hickman, 9 Mont. 370; Thomas v. Owens, 4 Md. 189; State v. Weston, 4 Neb. 216; State v. Hickman, 10 Mont. 497; Riggs v. Brewer, 64 Ala. 284; Riggs v. Comptroller, 4 Stew. & P. 154; Opinion to Governor, 49 Mo. 216; State ex rel. v. Bell, 119 Mo. 75; State ex rel. v. St. Louis Co., 34 Mo. 546. (8) The Act of March 15, 1899, despite its title, is as to the police system of St. Louis essentially an amendatory act, and the provisions of Act of 1861, re-enacted, are to be construed as continuing, and not as new enactments. St. Louis v. Alexander, 23 Mo. 483; St. Louis v. Foster, 52 Mo. 513; State ex rel. v. Heidorn, 74 Mo. 411; State ex rel. v. Woodson, 128 Mo. 512; Black on Interp. of Laws, p. 368. (9) The city of St. Louis is not a necessary party to this proceeding. State ex rel. v. Smith, 89 Mo. 408; State ex rel. v. Smith 15 Mo.App. 412; Strother v. Green, 45 Cal. 149; State ex rel. v. Johnson, 123 Mo. 43.

B. Schnurmacher and Chas. Claflin Allen for respondent.

(1) The General Assembly can not delegate its legislative power to a mere ministerial board, or to mere executive officers. St. Louis v. Russell, 116 Mo. 248; State ex rel v. Pond, 93 Mo. 606; State v. Patrick, 65 Mo.App. 653; Cooley's Const. Lim. (5 Ed.), 139. (2) Nor can the assembly legislate in part, and leave to other hands the completion of its work. Lammert v. Lidwell, 62 Mo. 188; O'Neill v. Ins. Co., 166 Pa. St. 72; Ford v. Harbor Comm. 81 Cal. 37; Smith v. Strother, 68 Cal. 194; Com. v. Adams, 95 Ky. 588; Pueblo Co. v. Smith, 22 Colo. 534. (3) The Act of March 15, 1899, under which relators claim to have organized, is violative of section 10 of article X of the Constitution of Missouri, which provides that the General Assembly shall not impose taxes upon counties, cities, towns or other municipal corporations, or upon the inhabitants or property thereof. While the Act does not in terms give the police commissioners the power to levy a tax, it does give them power to create debts and obligations which the city can only discharge by means of taxation, and, therefore, brings the case within the condemnation of the constitutional provision. Lovingston v. Wider, 53 Ill. 302; Wider v. East St. Louis, 55 Ill. 133; People v. Mayor, 51 Ill. 17. No such provision as section 10, article X, above referred to, was contained in the Missouri Constitution when the police Act of 1861, upheld in the case of St. Louis Police Commissioners v. St. Louis County Court, 34 Mo. 546, was passed. (4) The Act is also violative of section 1, Amendment XIV of the Constitution of the United States, in that it seeks to subject to the demands of the police commissioners any moneys in the city treasury without regard to whether the funds so sought to be made subject to said demands were derived by the city by means of taxation, or from the carrying on of enterprises by the city in its private corporate character; as for...