State Ex Rel. Field v. Smith

49 S.W.2d 74, 329 Mo. 1019, 1932 Mo. LEXIS 707

• Court: Supreme Court of Missouri
• Decided: March 15, 1932
• Status: Published

Opinions

RAGLAND, J.

-This is an original proceeding commenced in this court by the Police Commissioners of Kansas City to obtain a peremptory writ of mandamus against the City Council of that city to compel the appropriation, under the provisions of Chapter 38, Article XXIII, Revised Statutes 1929, of the sum of $1,442,425, the amount estimated by the relators as the cost of the police department of Kansas City for the fiscal year 1931-2. The return alleges the uneonstitutionality of the Statute.

What is now Article XXIII of Chapter 38, Revised Statutes 1929, creates and establishes within every city of the State having a population of 200,000 and less than 500,000 (there is but one, Kansas City) a board of police, and through such board a system of metropolitan police. The system so set up in and for Kansas City is a department of the State Government and not of the municipal government of that city. [American Fire Alarm Co. v. Board of Police Commissioners, 285 Mo. 581, 591, 227 S. W. 114.] The validity of Sections 7513, 7515, 7516, 7524, 7535, found in said Article XXIII, are challenged as delegating legislative powers to an administrative board. Said sections are as follows:

Sec. 7513. “To enable the board to perform the duties imposed upon them, they are hereby authorized and required to employ a permanent police force for the city, which they shall equip and arm as they may deem necessary. [R. S. 1919, sec. 8924.] ”

See. 7515. “It shall be the duty of the board of police at the beginning of each fiscal year to estimate what sum of money will be necessary for the ensuing fiscal year to enable them to discharge the duties hereby imposed upon or entrusted to them, and they shall forthwith certify the same to the common council or municipal assembly of the city, who are hereby required in the first apportionment ordinance of that fiscal year to set apart and appropriate the amount so required, payable out of the next annual revenue of the city. . . . [R. S. 1919, sec. 8926.]”

Sec. 7516. “The board of police is hereby authorized to make requisition monthly upon the treasurer, comptroller or other proper disbursing officer or officers of the city as it may deem necessary for executing their duties for that month, and the sum so required shall be appropriated and by said disbursing officer or officers placed to the credit of the police department hereby created, and such money so appropriated shall be paid out of the city treasury only upon warrants drawn by the president of the board and countersigned by the city comptroller as it may be needed to meet the current expenses of the board of police. [R. S. 1919, sec. 8927.] ”

See. 7521. “The board may, as the service requires, appoint officers and patrolmen as follows: A chief of police, at a salary of five thousand dollars per annum, and he shall not receive any fees or perquisite; one chief of detectives, at a salary of not less than three thousand dollars or more than forty-two hundred dollars .per annum; a secretary of the board at a salary not less than two thousand five hundred or more than three thousand dollars per annum; and an assistant secretary, at an annual salary of not less than eighteen hundred dollars nor more than twenty-five hundred dollars; captains, not to exceed one for each police district except at headquarters, where two captains may be allowed at a salary of three thousand dollars each per annum; lieutenants, not to exceed one for each police district, at a salary of twenty-four hundred dollars each per annum; sergeants, not to exceed four to each police district, at a salary of twenty-one hundred dollars each per annum; secretary of the chief, at a salary not less than eighteen hundred dollars or more than twenty-four hundred dollars per annum; a police surgeon, at a salary of not to exceed twenty-four dollars per annum, to be fixed by the board, and he shall perform such additional duties as may be prescribed by ordinance; detective sergeants, not to exceed one for every fifteen detectives, at a salary of twenty-four hundred each per annum; police detectives, not to exceed one for every twelve patrolmen, at a salary of twenty-one hundred dollars each per annum; patrolmen not to exceed one for every seven hundred inhabitants, the estimate to be taken from the best known source for obtaining such information: Provided, however, that for extraordinary emergencies the board may raise such additional force as may be not to exceed fifteen hundred dollars per annum; class e, patrolmen shall be regulated and paid according to the following classes: class a, not to exceed eighteen hundred dollars per annum; class b, not to exceed sixteen hundred and eighty dollars per annum; class c, not to exceed fifteen hundred dollars per annum; class c, patrolmen shall be the probationary patrolmen, and shall serve a period of six months; police matrons, at a salary of not less than twelve hundred dollars nor more than fifteen hundred dollars each per annum; superintendent of police signal system at a salary of twenty-five hundred dollars each year; police signal operators, not to exceed three for each police station at a salary of fifteen hundred dollars, each per annum; property clerks, at a salary not to exceed twenty-four hundred dollars per annum; janitors not to exceed two for each police station, at a salary of twelve hundred dollars each per annum; turnkeys, not to exceed two for each police station, at a salary of twelve hundred dollars each per annum; chauffeurs, not to exceed two for each police station, at a salary of fifteen hundred dollars each per annum. In addition to the above enumerated police officers, the board of police commissioners shall have the power and authority to appoint a traffic squad and said board shall have the power to determine the number, the grades and the rate of salary, and shall have the power to employ such numbers as they deem necessary from time to time, the salaries of officers and patrolmen of the traffic squad shall not exceed those paid to officers and patrolmen of like grade in the-regular force of the department as herein prescribed. [R. S. 1919, sec. 8935, Amended, Laws 1921, p. 478.] ”

Sec. 7535. “The board of police commissioners shall provide itself with a secretary and assistant secretary and such clerks and other help as may be necessary for the transaction of its business, and shall have power to divide the city into police districts and furnish all the necessary materials and .provisions for a perfect and complete organization and equipment of the police force and police department of the city, and may, under the direction and control of the board of public works, by and with the consent of the common council, evidenced by ordinance appropriating money therefor, erect in any police district station house, jails and other accommodations for the use of the police department. [R. S. 1919, see. 8946.] ”

The statute in question was enacted in 1919 (Laws 1919, p. 557) and was amended in important particulars in 1921 (Laws 1921, p. 478). It differs in material respects from the statute considered and construed in the case of State ex rel. v. Jost, 265 Mo. 51, 175 S. W. 591, decided in 1915. In neither that case nor the later one of State ex rel. v. Beach, reported in 325 Mo. 175, 28 S. W. (2d) 105, was the constitutional question now presented either raised or considered. With reference to the particular statute here involved the question of the delegation of legislative power is one of first impression. It should be premised that whatever may be said in passing upon that question should not be construed as in any wise going to the constitutional validity of the statutes creating police systems for the city of St. Louis and for cities of the first class operating under general law, because those statutes differ radically from the one now in. judgment. It will be time enough to consider their constitutionality or that of either of them when, if ever, it is so challenged in a case before us as to call for our determination.

As stated, the metropolitan police system of Kansas City is a State agency, a department of the State government, created or attempted to be created by the Legislature.

“One of the settled maxims in constitutional law is, that the power conferred upon the Legislature to make laws cannot be dele gated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional agency alone the laws may be made until the Constitution itself is changed. The power to whose judgment, wisdom and patriotism this high prerogative has been entrusted cannot relieve itself oE the responsibility by choosing other agencies upon which the power shall be devolved, nor .can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust.” [1 Cooley on Cons. Limitations, 224.]

“The Legislature may not delegate the power to enact a law, or to declare what tire law shall be, or to exercise an unrestricted discretion in applying a law; but it may enact a law complete in itself designed to accomplish a general public purpose, and may expressly authorize designated officials within definite valid limitations, to provide rules and regulations for the complete operation and enforcement of the law within its expressed general purpose.” [Bailey v. Van Pelt, 78 Fla. 337.]

“The Legislature may, without violating any rule or principle of the Constitution, confer upon an administrative board or officer a large measure of discretion, provided the exercise thereof is guided and controlled by rules prescribed therefor.” [People v. Products Co., 195 Cal. 548; see also Ex parte Cavanaugh, 313 Mo. 375, 280 S. W. 15; St. Louis v. Ice & Fuel Co., 317 Mo. 907, 296 S. W. 993; Merchants Exchange v. Knott, 212 Mo. 616, 111 S. W. 565, and cases cited.]

Looking to the challenged sections with the principles just stated in mind, it may be fairly said of them by way of general characterization that, after prescribing merely the nucleus of the personnel of a police force, they confer upon the police commissioners an unlimited authority and an uncontrolled discretion with respect to appointing, organizing, arming and equipping a permanent police force for Kansas City: They specifically empower the commissioners to “equip and arm” a permanent police force “as they may deem necessary,” to provide themselves with “such clerks and other help as may be necessary for the transaction of its (the Board’s) business,” and to “furnish all necessary materials and provisions for a perfect and complete organization and equipment of the police force and the police department of the city.” The correctness of the general characterization made will be confirmed by an analysis of . some of the specific provisions of the sections. Section 7524 limits captains and lieutenants to one, and sergeants to four, for each police district, but Section 7535 without prescribing any conditions whatever gives the commissioners carte blanche to divide the city into as many police districts as they may see fit. Signal operators are limited to three, and janitors, turnkeys and chauffeurs to two, for each police station. But there may be just as many police stations as the commissioners in their wisdom — or caprice — may establish. Police matrons at a salary from twelve to fifteen hundred dollars per year each and property clerks at twenty-four hundred dollars each may be appointed. But the statute neither limits the number nor prescribes any rule or guide which would serve as a limitation with respect thereto upon the commissioners. While Section 7524 purports to limit patrolmen to one for every seven hundred inhabitants, it in fact authorizes the appointment of such officers without limit. Note its concluding language:

“In addition to the above enumerated police officers, the board of police commissioners shall have the power and authority to appoint a traffic squad and said board shall have the power to determine the number, grades and the rate of salary, and shall have the power to employ such numbers as they deem necessary from time to time. The salaries of officers and patrolmen of the traffic squad shall not exceed those paid to officers and patrolmen of like grade in the regular force of the department as herein prescribed.”

Finally, the statute, without prescribing a single condition or limitation, even as to expenditures, gives the police board a blanket power of attorney to arm and equip a police force, to provide itself with “such clerks and other help as may be necessary for the transaction of its business, . . . and furnish all the necessary materials and provisions for a perfect and complete organization and equipment of the police force and police department of the city.”

By virtue of Section 7519 the patrolmen constituting a traffic squad are state officers. The positions filled by them are public offices. The attempted delegation to the board of police of the power to create such offices is clearly void. [State ex rel. v. Smiley, 304 Mo. 549, 557, 263 S. W. 825; State ex rel. v. Mason, 153 Mo. 23, 48, 54 S. W. 524.] In the Smiley case just cited it was held that the Legislature may create a public office (as that of county counselor), potentially, to come into actuality upon the happening of a future contingency, such as the exercise of the power of appointment to such office conferred upon the county court. But the blanket power “to appoint a traffic squad” and to “determine the number, grades and rates of salary” of the members of such squad does not create an office, or offices, potentially or otherwise; it confers the power to create offices indefinitely and at the pleasure of the donee of the power.

There is no hard and fast rule, applicable under all conditions and circumstances, for differentiating administrative from legislative powers, and the uncontrolled discretion given the board, in respect to arming and equipping a police force and providing such help, materials and provisions as it deems necessary to make the force and the department perfect and complete, might be regarded as relating to ministerial duties but for tbe fact that it operates as a power to tax. Kansas City is required to pay all the expenses of the department. Section 7515 provides: “It shall be the duty of the board of police at the beginning of each fiscal year to estimate what sum of money will be necessary for the ensuing fiscal year to enable them to discharge the duties hereby imposed upon or entrusted to them, and they shall forthwith certify the same to the common council or municipal assembly of the city, who are hereby required in the first apportionment ordinance of that fiscal year to set apart and appropriate the amount so required, payable out of the next annual revenue of the city.” And under Section 7516 — “The board of police is hereby authorized to make requisition monthly upon the treasurer, comptroller or other disbursing officer or officers of the city as it may deem necessary for executing their duties for that month, and the sum so required shall be appropriated and by said disbursing officer or officers placed to the credit of the police department.” The funds that find their way into the municipal treasury of Kansas City are derived from taxation. In requiring the city to pay from tax funds the expenses of the police department, the Legislature is in effect compelling it to levy taxes for that purpose. And in so far as the Legislature has delegated to the police board the power to determine, without legislative control or guidance of any sort, but at its own discretion, the amount of the city’s revenue that shall be appropriated and expended for the maintenance of a police department, it has to that extent delegated to the board the power to tax. The power to levy a tax and the power to create a debt to be discharged by the levy of a tax are substantially the same thing. [Lovingston v. Wider, 53 Ill. 302, 305.]

The power to tax is a legislative power, and like other legislative powers is non-delegable, except in the case of municipal corporations, and where there is an express constitutional warrant. Section 1 of Article X of the Constitution provides:

“The taxing power may be exercised by the General Assembly for State purposes, and by counties and other municipal corporations, under authority granted to them by the General Assembly, for county and other corporate purposes.”

Section 10 of the same Article is as follows:

‘‘ The General Assembly shall not impose taxes upon counties, cities, towns or other municipal corporations or upon the inhabitants or property thereof, for county, city, town or other municipal purposes, but may, by general laws, vest in the corporate authorities thereof the power to assess and collect taxes for such purposes.”

These sections impose limitations upon the taxing power inherent in the legislative branch of the State government. But virtue of the limitations so imposed the Legislature can exercise the power for “State purposes” only; it must delegate to cities the power to impose taxes for “municipal purposes.” If, therefore, the Legislature can compel Kansas City to levy, collect and appropriate taxes for the maintenance of the police department of that city, it is because such maintenance is a “State purpose,” and it has been so held. [State ex rel. v. Mason, 153 Mo. 23, 50.] Kansas City in levying, collecting and appropriating taxes under such compulsion is not exercising the taxing power delegated to it under its charter, but merely performing ministerial duties laid upon it by the statute.

Assuming that the creation and maintenance of a police force within and for Kansas City is a State and not a municipal function, a theory to which the writer is not committed, the Legislature may impose upon the property within the boundaries of the city a tax sufficient to meet the costs of such creation and maintenance. This it can do through an express enactment fixing the specific rate of taxation, or specifying the exact sum to be raised. Or it can impose upon an administrative board the.duty of ascertaining the requisite amount, provided, it prescribes such conditions, rules, regulations and standards for such ascertainment that the municipal council or any taxpayer of the city can determine therefrom, just as well as the administrative board, the amount authorized by statute to be gathered from taxes for the maintenance of the police department. The statute in question, however, furnishes no such legislative guidance. On the contrary it confers upon the police board an unrestrained discretion to appropriate from Kansas City’s revenues whatever sum or sums it deems necessary for the enlargement and maintenance of the police force and the police department. In doing so it delegates to the police board the legislative power to tax, in violation of the organic law. [State ex rel. Fargo v. Wetz, 5 A. L. R. 731, 748; 1 Cooley on Taxation (4 Ed.) sec. 78; See also State ex rel. v. St. Louis, 318 Mo. 870, 904, 2 S. W. (2d) 713.]

The Kansas City Police Act is without a parallel in the statute laws of this State. The insurance and other departments of the State government present to the Legislature biennially estimates of the funds necessary for their continued operation and maintenance. With these estimates before it the Legislature in the exercise of its own judgment makes such appropriations for the respective departments as it deems adequate or necessary. But the estimates of the department of police of Kansas City are not subject to legislative supervision or review. The police board without check or restraint of any kind may demand, and by force of the statute the custodian of Kansas City’s revenues must stand and deliver. Under the statute relating to the police department of St. Louis, that city must set aside from its revenues the amounts necessary to pay the interest on the municipal indebtedness, the expenses of the city hospital, health department and for street lighting, and in addition the sums required by law to be placed to the credit of the sinking fund, before making any appropriation to meet the estimates of the police board. [Sec. 7551, R. S. 1929.] And under Section 6369, Revised Statutes 1929, cities of the first class, having a population of less than 200,000, cannot be required to appropriate for the use of the police board in any fiscal year an amount of money in excess of one-sixth of the revenue for such year. No such limitations as these are found in the statute applicable to Kansas City; under its broad and unrestricted terms the entire revenue of the city is subject to appropriation by the board of police commissionei’s. So that between the unlimited forays which the board of police may make upon the city and the inhibitions imposed by Sections 10 and 11 of Article X of the Constitution which prevent it from increasing its revenue, its municipal functions may be greatly impaired, if not wholly destroyed. [Strother v. Kansas City, 283 Mo. 283, 223 S. W. 419.]

From the analysis which has been made of sections of said Article XXIII it is manifest that certain of its provisions, taken collectively, purport to confer upon the board of police of Kansas City the power to appropriate from the annual revexxues of the city, at its discretion, whatever sums it deems necessary for the maintenance of the police departmexxt. The power to determine the amounts to be so appropriated is essentially a power to tax, — a legislative power, axxd as such non-delegable. The provisions of the statute purporting to confer the power are therefore void, and as they are inseparably interwoven with its other provisions the statute as a whole must fall with them. ' It has been suggested that the invalid provisions of the statute may be eliminated without affecting the remainder. But no complete or workable law would be left after the unconstitutional delegations of power are stricken from it. And this is true of the statute as it existed before the amendment of 1921 as it is now. Kansas City has ample authority under its charter to organize and maintain a department of police (Charter — Art. I, See. 27; Art. II, Sec. 32), until such time as the Legislature may in its wisdom see fit to provide for the city, by a constitutional statute, a system of metropolitan police.

Before concluding we desire to again refer to the cases of State ex rel. v. Mason, State ex rel. v. Jost and State ex rel. v. Beach, because relators insist that in those eases the question presented on the record in this has been ruled upon by this court adversely to the contention of respondents. We do not deem it necessary to enter upon an exhaustive review of the decisions in the eases just mentioned or the statutes with which they dealt. As to the Mason case it is sufficient to say that in passing upon the question of the delegation of legislative powers, with reference to a section found ixi an act passed in 1899 for the creation of a police force for the city of St. Loxxis, the court by an arbitrary and strained constructioxi narrowly escaped the compulsioxx of de-. daring the section unconstitutional. The statute was shortly afterward repealed and one enacted in lieu of it which more fully con formed to constitutional requirements. The Mason case, rightly construed, is an authority for our holding in this. [153 Mo. l. c. 48.] We refer of course to its implications with reference to the delegation of legislative power. While there are many other questions discussed and ruled in the case, such as whether the Legislature may require a part or all of the revenues of a city to be appropriated to the support of a state controlled police department in preference to other departments of its municipal government and whether the imposition of the cost of such a police department effects taxation without representation, none of them has the slightest bearing on the single, clear-cut issue presented for decision on the record in the case now before us.

In the Jost ease this language is found, and for some reason stressed by relators: ‘ ‘ This statute places a limit upon every act of the commissioners, save and except the number of police districts, and as to that nothing' is said. In every other respect there is a limit beyond which the board' of police commissioners cannot go.” That language was used with reference to Section 9787, Revised Statutes 1909. The section was repealed and reenacted in 1919 with many additions. [Laws 1919, p. 564; Sec. 8935, R. S. 1919.] It went through a similar process in 1921 (Laws 1921, p. 478), it being now said Section 7524 above set forth. With reference to the language quoted above two things may be said of it: First, it is wholly obiter, there was no question of the delegation of' legislative powers in the case; and, second, if applied to the present Section 7524, its inaccuracy is glaring, as a reading of the section will disclose.

In the Beach case the constitutionality of the statute was in no respect challenged. Only its construction was in question. The court held in effect that what is now said Section 7524 did prescribe some limitations, but that said Section 7535 encompassed its grant of power with boundaries that were all but intangible. When the case was under submission here, some of us were then of the opinion that the statute was unconstitutional in that it attempted to delegate the power to tax, but that question could not be raised by the court, ex mero motu, in a case of that nature.

Relators in their briefs have quoted certain statements from Cooley on Taxation which, isolated from the context, seem to lend color to the soundness of their contention that the statute in question does not delegate the power to tax. We do not deem it necessary to set out of the full text of the learned author’s disquisition on the delegation o'f the legislative power to tax. [1 Cooley on Taxation (4 Bd.) pp. 193 to 197 inclusive.] It is sufficient to say that the doctrine therein enunciated is not only in complete accord-with the conclusion announced by the courts in many cases, but itself supports that conclusion, namely, that the delegation of an unlimited and uncon trolled power to create a debt to be discharged by taxation is the equivalent of the delegation of the power to tax. [Lovingston v. Wider, 53 Ill. 302; Metropolitan Utilities Dist. v. City of Omaha, 198 N. W. (Neb.) 858; State ex rel. v. Mayor of Des Moines, 103 Iowa, 76; Water Co. v. Steele, 20 Mont. 1; Commissioners of Wyandotte County v. Abbott, 52 Kan. 148.]

The alternative writ heretofore issued in this cause is quashed.

Ellison, Henwood, White and Gantt, JJ., concur; Frank, J., dissents in separate opinion in which Atwood, O. J,, concurs.