MARSHALL, L
This is a proceeding by mandamus, instituted in the circuit court of Jackson county, to compel the defendants to reinstate the relator as a policeman and to draw a warrant in his favor for salary while he was prevented by defendants from performing his duties as such policeman. The writ was made peremptory by the circuit court. The defendants appealed to the Kansas City Court of Appeals, where the judgment of the circuit court was reversed, and the Court of Appeals refused to certify the case to this court. [State ex rel. Groodnow v. Police Commissioners, 80 Mo. App. 206.] There were four other cases of like tenor as this case, that were adjudicated in the same way, at the same time. Thereupon the relators in all of the five cases obtained from this court a mandamus against the judges of the Kansas City Court of Appeals, compelling them to certify all of said cases to-this court, which was accordingly done, and said cases have been heard by this court and are now for adjudication here. [State ex rel. Smith v. Smith et al., Judges, 152 Mo. 444.]
The record in the case consists of the pleadings, the judgment, the motion for new trial and the appeal. No evidence is preserved. The petition alleges, substantially, that the Board of Police Commissioners of Kansas City, on November 4, 1895, consisted of the Mayor and two commissioners; that “said board then acting for said city, and exercising the authority conferred by law upon it, and by article XI of the charter of Kansas City, adopted at a special election held in said city on the 8th day of April, 1889, and which became a law and went into effect on the 9th day of May, 1889,” appointed relator a patrolman of the police force of Kansas City, and duly commissioned him as such, for a term of two and one-half years from that date; that relator duly qualified and entered upon his duties and continued in the performance thereof until [121]*121August 22,1896, “when the said Police Commissioners, without authority of law, dismissed and discharged him from his said office;” that he. was entitled to receive seventy dollars a month as such patrolman, and was entitled to hold said office for the full term of two and one-half years, but said Police Commissioners, composed of the Mayor and two commissioners, “appointees of the Governor of the State of Missouri, by authority of law, said board, without authority of law, without notice, without cause, without any charge or complaint whatever, wrongfully and unlawfully dismissed plaintiff, ousted him from and deprived him of his office of a patrolman of the police force, and excluded him from the exercise of the functions of said office and from having and receiving the emoluments pertaining thereto.” “That under the laws of the State of Missouri, and the charter of Kansas City, Missouri, said Board of Police Commissioners had no right, power or authority to dismiss and discharge said relator, remove him from his said office and deprive him of the emoluments thereof without cause therefor, and without a notice to said relator and a hearing by said board. That said relator was dismissed and discharged without a notice to him, without cause, and without a hearing, by said board, and wrongfully and unlawfully deprived him of his said office and the benefits and compensation to be realized from the performance of the official functions pertaining thereto, for the residue of his said term.” That relator on September 10, 1897, demanded to be reinstated and paid. The prayer is that the defendants be compelled to reinstate him and to draw a warrant for his salary while out of office. This action was begun on October 1, 1897.
' The portions of the return necessary to be considered in the determination of this case, are as follows: that the defendants constitute the Board of Police Commissioners of Kansas City; that the relator was on May 4, 1894, appointed a patrolman of the police force [122]*122by tbe then Board of Police Commissioners, composed of the Mayor and the two commissioners appointed by the then Governor of Missouri, and continued to serve as such patrolman until August 22, 1896, when he was discharged by the then Board of Police Commissioners pursuant to the following order of said board:
“Whereas the City Council has failed and refused to make an appropriation to maintain the police department of this city as it is now constituted, and whereas the City Council has failed and refused to appropriate any money for the payment of the expenses of the department for the months of June and July, and whereas it is necessary to reduce the expenses of the department so that for the balance of the year the expenses shall be such as to bring the expenses for- the whole year within the amount appropriated by the City Council, to-wit, $150,000, therefore be it resolved by the Board of Police Commissioners that the police force be reduced, so as to make the necessary reduction in the cost of maintaining the department, and for that purpose three sergeants and thirteen patrolmen be discharged from the force.
“And be it further resolved, that, for the reason above stated and because the board is satisfied that the following named persons now holding commissions are not proper persons to discharge the duties of police officers, they be discharged, to-wit: W. S. Campbell, Walter Whitsett, William Blockburger, Robert J. Miller, G. W. Longan, S. W. Nichols, John Hoboy, Jerry Hogan, John R. Hayes, E. R.--, J. T. Wachs, S. E. Saels, W. H. Goodnow, C. L. Knight, S. G. Smith and P. S. Goodhugh. For the reasons above stated it is by the board ordered that the above named persons, and ■ each of them, be and they and each of them are hereby discharged from the police force of Kansas City, Mo.”
The passage of the above resolution was opposed by Mayor James M. Jones and the following substi[123]*123tute was submitted by him for the action of the board and on vote was lost:
“ As a substitute for the resolution offered by Commissioner Fyke and seconded by Commissioner Johnston, providing for certain dismissals from the police force, it is moved by Commissioner Jones that no such dismissals be made, the force being already inadequate in numbers,' but that the pay-rolls for June and July be so revised and corrected by the board, and the salaries of the police department be so re-adjusted, that the same come within the apportionment of $150,000, making $12,255.20 for June and $12,664.73 for July, and for the remaining months of the present fiscal year the following amounts: August $12,664.73; September $12,256.20; October $12,664.73; November, $12,256,20; December, $12,664.73; January, $12,664.73; February, $11,439.12; March $12,664.73; two-thirds of April, $7,-762.26: which amounts, with the $18,041.64 already paid for the last one-third and for May, make the entire total apportionment for the. year of $150,000.”
“The majority of said Board of Police Commissioners, at the time of the discharge of relator, were confronted with the alternative of either reducing the number of men employed or reducing the salaries of the policemen by revising and correcting and reducing such salaries, as suggested by Commissioner Jones; that the said salaries were no more than reasonable compensation and no more than the law provided should be given to policemen, for which reason, in the exercise of their discretion vested in them by law, the majority of said board on'the 22d day of August, 1896, decided to reduce the number of policemen and officers on the force rather than to reduce the salary and compensation of such as were retained, and keep the entire number intact.
“That for and on account of the existence of the conditions set forth in said record, the then commissioners discharged the said relator; that the Common [124]*124Council of Kansas City, pursuant to law and the charter in such cases made and provided, at the beginning of the fiscal year 1896, first meeting of said council in said fiscal year, held on the 19th day of April. 1896, apportioned the estimated revenue to be collected by said city during the fiscal year 1896, to the several departments of said city, and did then and there apportion the sum of $150,000 to the police department of said city to pay for the salaries of policemen* including relator’s ■ salary, and other expenses of running said department for the fiscal year of 1896.
“That it became apparent and was the fact which the then Board of Police Commissioners were obliged to and did take notice of, that the sum of money apportioned- by said city and collected monthly from the current revenue of said city, was insufficient to pay the salaries and expenses of the police department; that in order to bring said department within the monthly appropriation ordinance passed by the Common Council and approved by the Mayor of Kansas City, it became necessary to economize in the expenditures of the police department, and the then Board of Police Commissioners were compelled, as a matter of financial necessity, to reduce the number of men employed as policemen; that it is provided by section 30, article 4, of the charter of Kansas City, in force now and at the time of the occurrences herein mentioned, that the Common Council of said city shall not appropriate any money for any purpose whatever in excess of the revenue of the fiscal year actually collected and in the treasury at the time of such appropriation and unappropriated, and it is further provided by said section that neither the Common Council, nor any officer of the city, except the comptroller in a single instance in the charter provided, shall have authority to make any contract or do any act binding Kansas City or imposing upon said city any liability to pay money, until a definite amount of money shall first have been appropriated for the liqui[125]*125dation of all pecuniary liability of said city under said contract in consequence of said act, and .the amount of said appropriation shall be the maximum limit of the liability of the city under any such contract or in consequence of any such act, and such contract or act shall be ab initio null and void ns to the city for any further or other liability.
“That on August 22,„ 1896, a majority of the then Board of Police Commissioners were satisfied that the relator, who was then holding a commission under the said board, was not a proper person to discharge the duties of a police officer, policeman, or patrolman, for which reason said relator-was at that time discharged by said board, acting by a majority vote. That ever since the organization of the Board of Police Commissioners in 1874, to-wit, for the'period of 24 years, it has been the uninterrupted custom, practice and usage of the said Board of Police Commissioners, whenever it has been satisfied that any person holding a position under it was not a proper person to discharge the duties of a policeman or police officer, or patrolman, to discharge such person at any time, without any complaint having been made against him. That this custom is immemorial, continued and reasonable and has been acquiesced in and practiced by the said board, all patrolmen and officers and the public at large, ever since the organization of the said Board of Police Commissioners, as aforesaid, and pursuant thereto and relying thereon and also on the provisions of section 22, article XI, of the city charter of 1889, authorizing them so to do, the then Board of Police Commissioners discharged said relator; that relator'acquiesced in his discharge and voluntarily severed his connection with said police force.”
The reply is a general denial. As stated the circuit court ordered the defendants to reinstate the relator as a patrolman, and also draw a warrant for his pay for the time he was kept out, at the rate specified for [126]*126a patrolman, diminished by the amount the relator had earned in other ways during that time.
I.
It is not at all clear from the petition whether the position of the relator is that the State statute of 1874 (Laws 1874, p. 327) creating the board of police commissioners of Kansas City, or that article XI of the charter of Kansas Oity^ adopted in April, 1889, purporting to create a board of police commissioners for Kansas City, is the controlling law. It will be noted that the petition charges that the relator was appointed by the Board! of Police Commissioners, who were then acting for said city, ‘ ‘ and exercising the authority conferred by law upon it, and by article XI of the charter of Kansas City,” etc., and-that the petition also charges “that under the laws of the State of Missouri, and the charter of Kansas City,” the board had no right, power or authority to discharge relator without cause, without notice and without a hearing, as it is charged was done.
It will also be observed that the return claims that the right and power to discharge relator is conferred by section 22 of article XI. of the charter of 1889:. The charter is referred to as authority for discharging any personholding aposition under the board who is deemed by the board not to be a proper person to discharge the duties of a policeman or police officer and the act of 1847 is referred to as authority for reducing the force. That is, the return justifies the discharge on two grounds, first, under the power of the board conferred by the State law to reduce the force at any time; and, second, under the power of the board conferred by section 22 of article XI of the city charter to discharge without notice, complaint or trial, any person holding a commission under them if the board is satisfied such person is not a proper person to discharge the duties of a police officer.
[127]*127Tims both the petition and the return may he said to he double-barreled, in that, each rests partly upon the State statute and partly upon the city charter, but neither intimates that there is any conflict in fact or in a constitutional view between the two.
The relator, however, now contends that the board had no power to discharge him, under either the State law or under the city charter, but that so much of the State statute as permits the board to reduce the number of the police force at any time, does not authorize a reduction in the manner that was done in this case, but that it only authorizes a gradual reduction by not appointing patrolmen as the terms of the number it is desired to dispense with expire,.and further, that if this is not the true construction to be placed upon the State statute, then the State statute was superseded and repealed by the adoption of the city charter in -1889.
It was upon this last contention that this court ordered this case certified to this court. That is, the court held that, the power of cities, like Kansas City, organized under special charters, pursuant to section 16 of article 9 of the Constitution, to adopt a charter that would have the effect of repealing a prior general State law, involved a constitutional question, and hence this court had. jurisdiction. Without this, this case could not be here.
In 1874 the General Assembly of Missouri passed an act entitled “An Act creating a board of police commissioners, and authorizing the appointment of a permanent police force for the'city of Kansas.” The first section of that act permitted the common council of Kansas City to pass all needful ordinances for preserving order, promoting peace and good order, but prohibited it from passing any ordinance conflicting or interfering with the powers of the board of police commissioners created by the' act. The act created a board of three commissioners, to be appointed by the [128]*128Governor, and confirmed by the Senate. In 1875 (Laws 1875, p. 198) the act was amended so as to mate the Mayor of Kansas City ex officio a member of the board, the other two commissioners to be appointed by the Governor, and confirmed by the Senate. The act of 1874 authorized the board! to appoint, enroll and equip a permanent police force for said city. Section 6 of that act is as follows:
“Sec. 6. To enable said board to perform the duties imposed upon them, they are hereby authorized and required, as speedily as may be, to appoint, enroll and employ a permanent police force for the City of Kansas, which" they shall equip and arm as they may judge necessary. The number of policemen to be so appointed and employed, exclusive of officers, shall, at the first organization, be not "exceeding the number now employed by the corporate authorities of the City of Kansas; but the Common Council of said city shall. have power to increase the police force at any time to any number recommended by the Board of Police Commissioners ; and said commissioners may reduce the present or any future number of police as experience may warrant. Provided, however, that for extraordinary emergencies, the board of police may raise such additional force as the exigency may in their judgment demand. No person shall be appointed or employed as regular policeman or officer of police who shall have been convicted of, or against whom any indictment may be pending for, any offense the punishment for which may be confinement in the State penitentiary, nor shall any person be so appointed who is of notoriously bad character, orwho is not a citizen'of the United States, or who is not able to read and write .the English language, or who does not possess ordinary physical strength and courage. The policemen shall be employed to serve for three years, and be subject to removal only for cause after a hearing by the board, who are hereby invested with exclusive jurisdiction in the [129]*129premises. Any policeman whose term of service shall expire, and who during his appointment shall have faithfully performed his duty, shall, if otherwise qualified, be preferred by the board in making their new appointments.”
In 1889 Kansas City adopted' a special charter, pursuant to the power conferred upon cities of over one hundred thousand inhabitants, by section 16 of article 9 of the Constitution. By article XI of that charter, the city undertook to create and establish a board of police commissioners and to authorize them to appoint a police force of its own. The charter in many respects is similar to the State law, as, in providing that the Mayor shall be ex-officio a member and that the other two commissioners shall be appointed by the Governor and confirmed by the Senate, but in many other respects there is a radieal difference between the charter and the State law, as, for instance, under the State law the police are declared to b.e both city and State officers (Laws 1874, sec. 18, p. 333) while under the charter (sec. 20, art. XI, charter) the. police are declared to be simply city officers.
In respect to the power of the board to appoint, remove, reduce and discharge there is a great difference between section 6 of the act of 1874, above set out, and section 22 of article XI of the charter, the charter provision, which is the only provision regulating the discharge of members of the police, being as follows:
“Sec. 22. Policemen — First appointment — Probation — Term of — Removal—Jurisdiction of Board— Discharge of Police. The first .employment of policemen ■ shall be for a probationary term of six months; and the board of police may in its discretion discontinue their services at any time. Having served six months probationary service to the satisfaction of the board such policemen may be appointed for a term of three years, and in case complaint be made against [130]*130them they shall be subject to removal only for canse, after a hearing by the board, and said board is hereby invested with exclusive jurisdiction in such matters. "Whenever the board is satisfied that any person holding a commission under them is not a proper person to discharge the duties of a police officer, he may be discharged at any time without any complaint having been made against him. ’ ’
. The most conspicuous differences between the State law and the city charter in respect to the right to discharge or reduce the force are, first, the State statute gives the commissioners the express power to “reduce the present or any future number,of police as experience may warrant,” whilst the city charter confers no such power. Second, the State law limited the number to the number employed by the city when the act' went into effect, but gave the Common Council power to increase the number at any time to any number recommended by the board of police commissioners; whereas the city charter (sec. 24, art. 11) fixed the number of patrolmen “not to exceed one to each one thousand inhabitants of the city, the estimate to be taken from the best known sources for obtaining such information, as may be prescribed by ordinance.” Third, the State law provided for the appointment of officers of police, “for such time as the board may determine, and be subject to removal by the board for cause, as in the case of policemen;” whereas section 22 of article 11 of the charter, as' construed by this court, in State ex rel. v. Vallins, 140 Mo. 523, permits the removal by the board of any officer of police, as differentiated from a policeman or patrolman or " police officer, at any time, without notice, charges or hearing, if the board does not think he is a proper person to discharge the duties of a police officer. Fourth, the State law provides that the policemen, patrolmen or police officer, that is, the private as distinguished from the officers of police, shall be employed for a [131]*131terra of three years, whereas the charter provides that they shall be first employed for a probationary term of six months, during which they may be discharged at any time in the discretion of the board, and, if satisfactory, shall at the end of the probation be appointed for a term of three years. Other lesser, important differences exist, but are not material in this case.
Under the decision of this court in the case of State ex rel. v. Yallins, 140 Mo. 523, so much of the order of the defendants as predicated a right to discharge relator under the terms of the charter because the board did not think he was a proper person to discharge the duties of a police officer, is void and affords no defense, for the reason that the relator is not an officer of police but is a private of police, and that provision of the charter applies only to officers of police.
In fact, if the charter of Kansas City is the law governing the case, the defendant’s return shows no defense whatever, and the discharge of the relator was without authority.
On the other hand, if the State law still controls, the contention of the relator that the provision thereof giving the board power to reduce the number of police, “as experience may warrant,” means that the number can be reduced only as the terms of the members expire and not as was done in this case, is equally untenable. For it is manifest that such a construction of that provision of the act gives the board no more power than it would have without that provision, that is, the power of non-appointment or of refusing to reappoint as the terms expire; and it is equally apparent that the law-makers intended by the provision authorizing a reduction of the number of police as experience may warrant to confer an express and additional power on the board, which they would not have had without this grant of power. The doctrine “ut res valeat, magis quam per eat,” applies. The provision must be construed as meaning something rather [132]*132than nothing. Construed as relator contends, it means nothing, confers no power that would not exist as fully as if no such provision was found in the act. The power to reduce the number of police as experience may warrant was evidently intended as the converse of the power conferred by the next succeeding sentence of section 6 of the act .of 1874, to raise such additional force as the exigency may in their judgment demand in case of extraordinary emergencies. The position of these two grants of power in the same section of the act, shows that the lawmakers had in mind the fact that it might become necessary to reduce or to increase the police force as the exigencies of extraordinary emergencies required, and so in the same breath the power Avas expressly conferred. The relation of the two ideas to each other and their close connection with each other in the act, conclusively shows that prompt and efficient action, sufficient to meet the exigencies, was contemplated and authorized by the lawmakers, and that a gradual reduction as the terms of the privates expired was not the kind of reduction the law contemplated.
This narrows the case to this: Under the charter the relator was wrongfully discharged, but under the State law his discharge was legal. "Which law governs ? The Kansas City Court of Appeals, in an able and elaborate opinion, by Ellison, J., held that the Staté law controlled, and that the discharge was legal, and that conclusion was right.
It is unnecessary, and would be futile at this time, to tread again the maizes of adjudication, perhaps to become lost in the labyrinth of the ingenious and divergent reasons which pervade the cases in respect to the power of the State over municipalities incorporated under article nine of the Constitution, and in respect to the power of municipalities to adopt charters regulating matters of mere local concern, with which the State at large has no concern, which have the effect of re[133]*133pealing prior general State laws on the same subject, or which place such cities in respect to such matters beyond State control. The views of the author hereof on these questions are well known, and were expressed, in Owen v. Baer, 154 Mo. 434, at great length, with painful care, after exhaustive investigation, and with such poor results, that repetition or reiteration here would he offensive.
No discussion of such questions is appropriate in this case, for this court held in State ex rel. v. Mason, 153 Mo. l. c. 43, that an act creating a board of police commissioners and regulating the appointment of a police force for any city in this State is constitutional, and that such hoard and such metropolitan police officers are State officers. In that case Gantt, O. J., said: “Laws like these and those of other States providing a metropolitan police system for large cities, are based upon the elementary proposition that the protection of life, liberty and property and the preservation of the public peace and order in every, part, division and subdivision of the State, is a governmental duty which devolves upon the State and not upon its municipalities any further than the State in its sovereignty may see fit to impose upon or delegate it to the muncipalities. The right to establish the peace and order of society is an inherent attribute of government, whatever its form, and is coextensive with the geographical limits thereof, and touching every part of its territory. ’ ’
Hence the act of 1874 related to a matter which primarily belonged to the State, in which every citizen of the State had an interest, and which was therefore not simply a matter of locál concern. This being true, no decision that has so far been rendered . gives any color or countenance to the power of the city to repeal such a State law by adopting a special charter under section 16 of article 9 of the Constitution which con[134]*134tains inconsistent or variant provisions touching the same subject.
In fact that section of the Constitution expressly provides that the city may adopt a charter for its own government, but it limits this by requiring that the charter so adopted must be “consistent with and subject to the Constitution and laws of this State.”
It is proper in this connection to say that the question here involved was not decided in the case of State ex rel. v. Vallins, 140 Mo. 523, or in the case of State ex rel. Chapman v. Walbridge, 153 Mo. 194. In the Vallins case the act of 1874 was not called to the attention of this court, but the case was presented as if the city charter was the only authority for the existence of the police board of Kansas City, and the decision in that ease was predicated solely upon an interpretation of the charter provisions and did not pass upon the constitutionality of the charter provisions. In the Walbridge case, no such question was involved, for the reason that there was no such attempt by the city of St. Louis by charter to repeal 'the State law creating the board of police commissioners. That case involved only an interpretation of the State law.
It follows, without more discussion or elaboration, that article 51 of the charter of Kansas City, adopted in 1889, did not have the effect of superseding or repealing the act of 1874, and that so long as that act remains in force it is beyond the power of Kansas City to repeal it or to create a board of police commissioners or a police force of its own. It also follows that the defendants hold their officers by virtue of the act of 1874, and the amendments thereto, and not by force of the city charter, and that the same is true of the relator. It also follows that when relator was appointed a member of the police force, by virtue of the act of 1874, he accepted that appointment subject to all the terms and provisions of that act as fully as if those terms had been specified in his commission. By the [135]*135terms, of that act he could not he removed for any reasonpersonaltohimself, except upon charges, with notice and after trial. But by the terms of that act he, like every one else similarly appointed, held for a term of three years, subject however to that term becoming reduced and subject to the possibility of removal, without notice, charges or trial, in the event that the exigencies of any extraordinary emergencies made it necessary, in the judgment of the board, to reduce the number of the police force, and of that necessity the board was the sole and final arbiter, and id such event any one, officer or private, of the.force selected by the board could be discharged' to meet the exigency.
Under the decision in State ex rel. v. Mason, supra, the failure of the municipality to provide the necessary funds to pay the force as then constituted, would not have been held by this court to present such an obstacle to the enforcement of the law as necessitated a reduction of the force, but by the same measure it cannot be here held that the action of the board in reducing the number for that reason, was unlawful or subject to judicial review.
These considerations draw with them the unavoidable. conclusion that the circuit court erred in granting a peremptory writ of mandamus against the defendants, and hence its judgment is reversed. Inasmuch as the relator is not entitled to the relief sought, the cause is here dismissed at relator’s cost. .
Burgess, G. J., and Brace and Gantt, JJ., concur; Sherwood, Robinson and Valliant, JJ., dissent.