State ex rel. Reynolds v. Jost

175 S.W. 591, 265 Mo. 51, 1915 Mo. LEXIS 6

Opinion

GrEAVE'S, J.

Original action in mandamus. Belators constitute the majority of the Board of Police Commissioners of Kansas City, acting as and for such board. The respondents are the mayor and members of the common council of said city.

Before the beginning of the fiscal year of 1914 the Board of Police Commissioners certified to the mayor and common council the amount that would be re quired to maintain the police force and the police department of the city. This estimate was $725,000. The mayor urged that such sum could not be appropriated, and the Board of Police Commissioners cut out some items and finally made their demand for $650,000. The first demand included the following items:

“For the cost of the department as now organized ;

Salaries ...........................$445,120.00

For the cost of maintenance, repairs, rents, provisions, materials, supplies and incidental expenses .... 61,763.83

For the cost of the proposed increase in the number of policemen necessary for the discharge of the duties imposed upon and entrusted to the Board of Police Commissioners as authorized by

the statutes ................... 158.760.00

Renting of apparatus for police alarms, fire alarms, or for the purchase of new or additional equipment, arms or other apparatus .. 43,336.17 Necessary repairs, repainting and

overhauling of stations......... 16,000.00

Total .....................$724,980.00”

As modified, by cutting out, the demand stood: “For the cost of the Department as now organized:

Salaries ...........................$445,120.00

For the cost of maintenance, repairs, rents, provisions, materials, supplies and incidentals ........... 36,120.00

For the cost of proposed increase in the number of policemen necessary for the discharge of the du-

ties imposed upon and entrusted to the Board of Police Commissioners as authorized by statute.. 168,760.00'

$650,000.00'”

The petition for our writ averred that the respondents refused to appropriate more than $500,000 for the police department of such city, and prayed for our writ of mandamus to compel the respondents to appropriate the full amount of $650,000. Our alternative writ was issued and respondents made return thereto. This return, as amended, would seem (1) to challenge the right of relators to make a valid demand at all, and (2) that if they had such right the demand made was unreasonable, and respondents were therefore justified in refusing it. The return is quite lengthy, but when the admissions made therein are taken with the other matters pleaded, the foregoing is the substance thereof. If other matters pleaded become necessary they can and will be noted in the course of the opinion.

Relators base their authority in the premises upon section 9778, Revised Statutes 1909, which reads:

“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. If the board shall be required to call out an extra police force and the expense thereof shall not have been contemplated in their first estimate, they shall immediately certify the expense of such additional force, and the additional amounts so required shall be appropriated for that purpose. The estimate made at the beginning of each fiscal year shall embrace the cost of the department as then organized, the cost of any proposed increase in the number of policemen necessary for the discharge of such duties and authorized hereunder, and the cost of any proposed erection of station houses, the renting of apparatus for police alarms, fire alarms, or the purchase of new or additional equipment of' arms or other apparatus. The term common council, as used in any provision hereof, shall be construed to mean the municipal assembly or other body having legislative authority in such city.”

Respondents seek to hide behind the powers which they claim to be granted to them by the city charter adopted under the provisions of section 16, article 9, of the Constitution.

The two questions suggested, supra, are at least, the two vital questions. There are other minor questions, which can be best stated in connection with the points made. This sufficiently outlines the case.

Commissioner's Findings: Assignment of Exceptions.

I, It is urged by relators that as no formal assignment of exceptions was made to our commissioner’s finding of facts, the respondents and this court is bound by such findings. In this relators are in error. We have no statutory regulations as to the powers and duties of the commissioner appointed by this court in cases of this kind. We usually prescribe his duties by an order made at the time. Sometimes we direct him to make findings both as to the facts and the law. At other times we limit his work to the findings of facts alone. We always require him to not only take, hut to report the testimony to this court. There would be no necessity of reporting the testimony if we were going to be bound by the commissioner’s finding of fact. It could, of course, he argued that we would have to have the evidence in event there were exceptions filed to his findings of facts. But we neither have a statute nor a rule of court fixing this practice. We have therefore provided for no exceptions. These cases' are usually cases of vast importance, and we would he loth to permit a commissioner — a mere arm of the court — to cut off a full investigation of either the facts or law of the case. The better rule, and one which we have usually followed, is that the findings of facts made by our commissioner is merely advisory, but in no sense binding upon us. We have reserved and should reserve the unrestricted right to reach our own conclusions as to the facts, and with a free hand apply our views of the law. We have, at times, required our commissioner to report to us his conclusions of law, but we have never deemed such conclusions as binding upon the court. They are advisory merely. So likewise should be the findings as to facts. The court is the body which is responsible for the final disposition of these very important cases, and we do not feel like announcing any rule which would, in any sense, restrict a full examination of the facts by the court, either upon a suggestion of a party to the suit, or upon our own motion. It would follow that we should go into the facts when challenged, whether formal exceptions were filed before argument or not. The better practice for the lawyers in the case would be to formally point out by exceptions what findings were challenged, and in this way the scope of the case might1 be more compact upon the argument. Whether this be done or not, the court should reserve to itself the right to go to the entire record for the facts. This view disposes of relators’ contention contrary to their ideas.

II. Whilst we have reserved the right to go into the record, and find the facts contrary to the findings made by the commissioner, yet our examination of this record discloses that our learned commissioner has not only been fair, but he has been exceedingly careful and painstaking in making his findings of facts. We shall note the more serious objections made to his findings, as it becomes necessary to use the particular findings of fact in the further course of this opinion. If such particular finding does not accord with the evidence, we shall so state.

„„ ^ Police System.

-III. The importance of this case is apparent from the statement made, supra. The life of the metropolitan police system of Kansas City is at least at stake, if not more. In fact it might well be said that the metropolitan police systems 0f the State are involved, because if some of the contentions of respondents be good, there is no such thing as a metropolitan police system. In other words, if the State has the mere control of the police body, with the power left in the municipality to starve the police force to death by refusing to appropriate funds for its support, then there can be no metropolitan police force. The municipality, the creature of the State, can rise up against the State and kill any metropolitan police force which the State may establish. No set of officers can or will serve without pay, and if the pay of a metropolitan police system is left to the caprice of a municipal government, ofttimes at war with the State government, there can be no effective police force under State control. The question is therefore a vital one to the State. The first questions are: (1) Can the State establish a police system for one of its municipal creatures, and compel that creature to properly sustain such police system out of the funds gathered for municipal purposes; and (2) if it can, is the demand made by the relators in this case within the State power, under the law it has enacted, supra? These questions we take in their order.

Power of state Over city Revenues,

IV. The brief of counsel for respondents attacks the validity of the statutes relied upon by relators, i. e., section 9778, Revised Statutes 1909, and other sections relative to the metropolitan pólice system established for Kansas City, iji]^ £[le State can establish in a municipality a metropolitan police force, and require such municipality to pay for the same, has been thoroughly and well settled by the lamented Judge Gantt in a very able opinion in the case of State ex rel. v. Mason, 153 Mo. 23. The doctrine announced is a trite one, i. e., the creature is not greater than its creator. In that case Gantt, C. J., said:

“The fundamental principles underlying the Acts of 1861 and 1899, creating boards of police commissioners for the city of St. Louis, are the same, and' the constitutionality of such legislation has stood the test of the most critical judicial examination and review. Laws like these and those of other states providing a metropolitan police system for large cities, are based, upon the elementary propositions 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 municipalities. The right to establish the peace and order of society is an inherent attribute of government, whatever its form, and is co-extensive with the geographical limits thereof, and touching every part of its territory.

“Prom this duty existing in the very nature of the State government, flows the corresponding power to impose upon municipalities of its own creation a police force of its own creation, and to compel its support out of the municipal funds. Such is the conceded doctrine by the most learned of our writers upon con stitutional law, and such the consensus of judicial decision throughout the United States.

“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 po- - lice forces are State officers and fall clearly within legislative control.”

The distinguished jurist then reviewed the authorities upon the question, and quoted at length from both Cooley and Dillon, showing the views of both of those great jurists were in harmony with his own. Cases from Michigan, Massachusetts, Maryland, Louisiana, and Kansas, were likewise cited and quoted from to the same effect. At the expense of brevity I quote from the Mason case, supra, the language of Judges Cooley and Dillon. In the Mason case it was further said:

“Judge Cooley in his work on Taxation (2 Ed.), p. 681, says: ‘ One of the first and highest of all duties devolving upon the State is to preserve the public peace. For this purpose, peace officers are chosen, judges selected, the militia organized, and the executive armed with very high powers to meet the contingencies of riot and disorder. ... In general, the belief has prevailed that the public peace and good order were better preserved by apportioning the duty among the several municipal divisions, retaining only a State supervision over all. . . . But if the local authorities were allowed unlimited discretion to levy or refuse to levy the necessary taxes for the support of the local police force, it might possibly happen, that, from neglect or refusal to do so, one part of the State might be left a prey to disorder and violence, to the general detriment of the State at large. Of course no .State could safely, for a single day, tolerate such a condition of affairs. A city or township could no more be left at liberty to decline taxation for police purposes, when the police laws and police force, and the tax which supports them are made by local law, than if all were general. The police organization of the State is really general, however it may vary in different localities, and the obligation to support it is general, however it may be apportioned. . . . The power that prescribes police regulations and varies them to meet the needs of different localities has undoubted authority to apportion the money raised for general purposes, on its own view of the local needs. The Legislature may, therefore, require a county to appropriate part of its revenue to the special needs of the police board within its limits, and an act for that purpose is liable to no constitutional objections.’

“Judge Dillon in his admirable work on Municipal Corporations (4 Ed.), in note 1, section 60, says: ‘There is nothing in the maxim that “taxation and representation go together, ’ ’ that can preclude the Legislature from establishing in a city a metropolitan police board, with power to estimate the expenses of the police, and compelling the city authorities to raise by taxation the amount so estimated. Every city is represented in the State Legislature; and it is for that body to determine how much power shall be conferred by the municipal charters which it grants.’

“Judges Cooley and Dillon in these extracts clearly sum up the result of the authorities.”

It would be a step backward for us now to say that the State of Missouri can’t provide a police system for its great cities. It is a mistaken view to urge that the cities alone are interested in this matter of a police force adequate to maintaining the public peace and safety of our citizenship. The State has a vital interest. The citizens of the State, and all parts of it, are forced to these metropolitan centers for business and other reasons. They may not linger long, but while there, they are entitled to that protection which only an adequate and efficient police force can give. It is not for the cities to say to the State that “we will give your citizens just such protection as we think is best.” Nor can such cities say to the State, “You may man and control the police force if you desire, but if so we will starve your system to death — we hold the purse strings. ’ ’ These municipal corporations are subordinate to the sovereign power of the State, and whilst they do in a sense hold the purse strings, they so do by the consent of the State. Without the authority of the sovereign they would not even have a purse, much less the strings of one. The power which gave them the purse can limit the use of it. The power which placed upon that purse the strings, can loosen the strings.

So that we reiterate, by saying that it would be taking a step backward in jurisprudence to hold that the State cannot provide a metropolitan police force for our cities and compel those cities to pay the expenses thereof.- Upon this question we are fully satisfied with the ruling in the Mason case, supra, and adhere to that ruling.

Y. Counsel for respondents urge that inasmuch as Kansas City is operating under a special charter adopted under the provisions of section 16 of article 9 of the Constitution it is beyond the control of the-State in matters of local self-government, and arguendo they insist that such city has control of the police located therein. This is not the first time that Kansas City has made this contention with reference to its police department. [Vide State ex rel. v. Police Commissioners, 80 Mo. App. 206, 184 Mo. 109.] In this case it was contended that the charter of the city was a law unto itself and the State law must give way to the provisions of the charter. But neither the Court of Appeals nor this court took that view of it: ' In ’ an elaborate and cautiously written opinion, Ellison, J., for the Kansas City Court of Appeals, said:

‘ ‘ The important question to determine and which, as we have just said, was not considered in the Vallins case, 140’ Mo. 523, since it did not arise therein and was not referred to by court or counsel therefore, is whether the Laws of 1874 and of 1875 and 1881 amendatory thereof, are yet in force and govern the Board of Police Commissioners, and, in any point of substantial repugnancy, which must give way, the law or the charter. Kansas City is organized under a special charter adopted by its own people. In matters of purely municipal concern the provisions- of the charter supersede the provisions of the general law on the same subject existing when the charter was adopted, when not inconsistent, or out of harmony, with the general law. Thus, though the general law of the State provided a procedure for the exercise of the power of eminent domain in the condemnation of streets, yet this was superseded by the provisions of the charter in that respect, those provisions preserving the same substantial rights to parties affected which were guaranteed by the general law. [State ex rel. v. Field, 99 Mo. 352; Kansas City v. Oil Co., 140 Mo. 458.]

“ While much'important governmental power concerning matters of strictly municipal or local concern may be legally embodied in the charter, yet the charter must remain in subjection to the general law. This is constantly iterated by the Supreme Court in what are known as the Park cases. [Kansas City v. Oil Co., 140 Mo. 458; Kansas City v. Ward, 134 Mo. 172; Kansas City v. Scarritt, 127 Mo. 642.] In the Oil Company case it is said that whenever a charter so framed comes under judicial review the inquiry is, is it in harmony with and subject to the law of the State? It is there further said, that the charter must not invade the prov ince of general legislation, or attempt to change the policy of the State. In respect to all matters involving the relation of the city to the State and the full exercise of what is commonly known as the police power of the State the act of the Legislature will annul provisions of such a charter on the same subject. [St. Louis v. Dorr, 145 Mo. 466.]

“There are a number of illustrations of these general statements. Thus, there was a conflict between the general law and the charter of St. Louis as to the method of extending taxes and it was held the charter must give way. [State ex rel. v. Railroad, 117 Mo. 1.] In the same city there were specific provisions as to- the licensing of dramshops and the collection of the revenue therefrom. In 1893 the Legislature provided for the appointment by the Governor of an excise commissioner, who, under the provisions of the act, took charge of that general subject, including the city license and revenue. The act has been upheld and the city ordinances, passed under the charter, superseded. [State ex rel. v. Bell, 119 Mo. 70.] The same recognition of the rule that special charters like those of Kansas City and St. Louis are subject to the general law of the State is found in numerous other cases. [State ex rel. v. Tolle, 71 Mo. 645; State ex rel. v. Miller, 100 Mo. 439; State ex rel. v. Higgins, 125 Mo. 364.]

“After the people of St. Louis had adopted their special charter, the Legislature passed an act concerning elections and for the appointment of a recorder of voters in all cities having a population of one hundred thousand or over, which included St. Louis. By the provisions of the charter and ordinances of that city it was the duty of the mayor thereof to appoint judges and clerks of election ten days before election day. An election was about to take place in said city for president of the board of assessors. The mayor was engaged in appointing the judges and clerks and at the same time the recorder of voters, appointed by the Governor under the act of the Legislature, was also about to appoint men to the same positions. On an injunction to restrain the recorder the Supreme Court held that provisions of the charter and ordinances inconsistent with the act of the Legislature were annulled. It was said by the court that the charter was subject to the law; and that cities acting under such charters were not to be considered as a sovereignty within a sovereignty.”

Later on in the same case Judge Ellison further says: “But where, in the discretion and judgment of the board the force is more numerous than it should be, it has the additional power under the law to reduce the number by discharge from the service without notice or hearing. That the charter cannot change the State law in this respect is apparent, unless we set up the charter as" superior to the State law. To grant such potency to the charter we would be brought to the position, as stated by the Supreme Court, that the power of appointment could be taken from the Governor and invested in some city functionary. And furthermore that a wholly different system of police could be introduced by the city, or indeed none at all; and thus the policy of the State be subverted.”

The case reached this court, and in 184 Mo. l. c. 132, this court said:

1‘ 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 State 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 mazes of adjudication, perhaps to become lost in the labyrinth of the ingenious and divergent reasons which pervade the cases, in re spect 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 repealing 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 be 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 board and such metropolitan police officers are State officers. In that case Gantt, C. 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 ordeigin 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 municipalities. 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 belongs to the State, in which every citizen of the State had an interest, and which was therefore not simply a matter of local 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 contains 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.’ ”

In fact the very constitutional provision behind which respondents seek to hide, limits the scope of their charter powers. Such document, upon matters of general State concern, as is the peace and safety of its citizens, must be subject not only to the Constitution, but the laws of the State as well.

The first board of police commissioners for Kansas City was created by the Act of 1874. [Laws 1874, p. 327.] By this act the Governor appointed all three of such commissioners. By Act of 1875 (Laws 1875, p. 193), the law was amended so that the mayor was made eco officio a member of the said board, and the Governor appointed the other two. This provision continues to this day, although many amendments to the original act have been made. In these acts the city was specifically named. After 1875 the laws began to assume the plane of general laws. But we need not go into detail. There is a law of the State which covers this governmental question of State interest, and it makes no difference whether such law antedates the, city charter or not, such city charter must give way to the general law. [State ex rel. v. Police Commissioners, 80 Mo. App. 206, 184 Mo. 109, supra; State ex. rel. v. Bell, 119 Mo. l. c. 75; State ex rel. v. Railroad, 117 Mo. l. c. 11.]

There is therefore no substance in this contention of the respondents. A metropolitan police force is a matter of general State concern, so that even if there were diverse provisions in the city charter (a matter we do not discuss, because not necessary) such provisions of the charter must yield to the State law. The establishment of a metropolitan police system for the large cities is but the exercise of the police power of the -sovereign State.

, . . Kansas city charters.

VI. Counsel for respondents are finally driven to the position that the law applicable to Kansas City is different from the St. Louis law considered m the Mason case, supra, and for reasons not discussed in that case, this law is bad. It is first said:

“There are, in fact, a number of essential differences between the statute applicable to St. Louis (Secs. 9802 et seq., R. S. 1909) and the statute applicable to Kansas City (Secs. 9764 et seq., R. S. 1909).

“(a) By section 9806, the police commissioners of St. Louis are required, without discretion, to employ a specific number of policemen.

“By section 9787, Revised Statutes 1909, the police commissioners of Kansas City ‘may, as the service requires, appoint’ not a specified number of policemen, but ‘as the service requires,’ in their discretion, officers and policemen.”

Counsel do not make a fair comment upon this section 9787. The section in full reads:

“The board may, as the service requires, appoint officers and patrolmen, as follows: A chief of police, at a salary of four thousand dollars per annum, and he shall not receive any fees or perquisites; one chief of detectives, at a salary of two thousand eight hundred dollars per annum; a secretary of the board, at a salary of two thousand and one hundred dollars per an.num; captains, not to exceed one for each police district, at a salary of one thousand and eight hundred dollars each per annum; lieutenants, not to exceed one for each police district, at a salary of one thousand and five hundred dollars each per annum; sergeants, not to exceed four to each police district, at a salary of one thousand and two hundred dollars each per annum; secretary of the chief, at a salary of one thousand and five hundred dollars per annum; a police surgeon, at a salary of not to exceed one thousand and eight hundred dollars per annum, to he 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 one thousand and five hundred dollars each per annum; police- detectives, not to exceed one for every fifteen patrolmen, at a salary of one thousand and three hundred and eighty 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 deemed necessary in its judgment. The salary of regular patrolmen shall be one thousand and eighty dollars each per annum, and probationary patrolmen shall receive seven hundred and eighty dollars each per annum; police matrons, at a salary of seven hundred and twenty dollars each per annum; police signal operators, not to exceed three for each police station, at a salary of seven hundred and twenty dollars each -per annum; one property clerk, at a salary of one thousand and two hundred dollars per annum; hostlers, not to exceed two for each police station, at a salary of seven hundred and twenty dollars, each per annum; turnkeys, not to exceed two for each police station, at a salary of seven hundred and twenty dollars each per annum; drivers, not to exceed two for each police station, at a salary of seven hundred and twenty dollars each per annum.”

This statute places a limit upon every act of the commissioners save and except the number of pólice 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. The number of the patrolmen is the real basis of the force. That is definite which can be made definite. The utmost limit of patrolmen is one for every 700 inhabitants, the population from time to time to be determined by the Board of Police Commissioners. The Legislature has thus fixed a limit beyond which the Board of Police Commissioners cannot go in establishing the force. The salaries of each class is fixed. It is true-that it is left to the commissioners to determine the population, but this does not invalidate the act. It may also be true that such commissioners are left to fix the number of police districts, and if they increase or decrease the number it makes but little change in the force. The basis of the force, under the statute, is the number of patrolmen, and that number cannot exceed one for every 700 population. To add a district would only add one captain, one lieutenant and four sergeants. To cut off a district would only cut off these six men. The law was intended to be flexible, and rightfully so, but this does not make it violative of any constitutional provision.

There are these and some other differences between the St. Louis law (long since declared to be constitutional) and the Kansas City law, but we are pointed to no constitutional provision which would be violated by this law, which would not be violated by the St. Louis law. In fact, the amended return in this case does not charge that the law creating the metropolitan police system for Kansas City is unconstitutional in anyway, save and except that it is claimed that under the Constitution the charter provisions have precedence over the law. The only thing in this amended return which even touches the constitutionality of the law reads as follows:

“Respondents allege that Henry L. Jost is a duly elected and qualified mayor of Kansas City, Missouri, and that the other respondents in said cause constitute the Upper and Lower House of the common council and as such are controlled by the provisions of the charter of said Kansas City, which city charter was adopted under the provisions of section 16, article 9, of the Constitution of the State of Missouri, and that such charter provides ‘that within the first month of each fiscal year the mayor and common council shall by ordinance as far as practicable make an apportionment of the revenues to be raised for such year to the expenses of the several departments and for all public work under the proper headings and for such other objects as it may be necessary to provide for, and the money then in the treasury subject to the apportionment and municipal revenues shall be distributed accordingly. ’

■ ‘ ‘ The respondents say that in accordance with the provisions of the said charter; after estimating the revenues of the city for the fiscal year beginning April 20, 1914, at the sum of $2,820,000, which said estimate was proper and reasonable, an ordinance was introduced in the common council of Kansas City, Missouri, apportioning said amount among the several departments of the city, which sums so apportioned comprised an estimate, of all revenue that would be derived from all sources during the fiscal year of 1914, and said ordinance being ordinance No. 19780 and entitled an ordinance apportioning the general fund and revenue- of Kansas City, Missouri, for the fiscal year 1914, made the' following apportionment.” ■'

From the beginning to the end -of this amended return , this is the 'only hint of a constitutional question, and .it goes to a point already disposed of in this opinion, i. e., that the charter provisions, whilst pro- mitigated under section 16, article 9, of the Constitution must give way to a State law. The constitutionality of the St. Louis law was directly reviewed from several angles, but this court held it constitutional. That ruling, with what we have added here, as to the Kansas City charter provisions being subservient to the State law, leaves the metropolitan police law applicable to Kansas a valid and live law. Respondents themselves do not further question it, as indicated by this excerpt from their return, supra, and we shall discuss that branch of the case no further.

Amount of Demand: Population: Insufficient Revenue.

VII. Proceeding now upon the theory that the law relating to the police system of Kansas City is a valid and binding law, how stands the case1? Respondents urge that Kansas City hasn’t a population of 275,000, but say that we must take the United States census of 1910 as the basis. The law does not say so. The number of patrolmen must not exceed “one for every seven hundred inhabitants, the estimate to be taken from the best known source for obtaining such informationThis means at the date and time the estimate is made. Under the law the police commissioners are empowered to estimate the population, but they need not go to the last United States census for it.. They, under the law, may go to “the best known source for obtaining such information. ’ ’ The law uses the word ‘ ‘ estimate, ’ ’ which does not.indicate that the United States census is the only source of information referred to by the legislators. A census is a finding of the population and not an estimate of the population. The lawmakers had in mind that some cities might forge far’ ahead between the decennial periods of the Federal census, whilst others might fall back. They aimed to meet this situation in •this law, by authorizing an estimate of the population. The police commissioners took into consideration the last school returns, the last election returns, the estimate of the waterworks department of Kansas City, based upon recognized rules for estimating population, and other similar sources. Upon this question, the commissioner appointed by this court made the following finding:

‘ ‘ Therefore, I find that the estimate of the population by the Board of Police Commissioners was fair and reasonable and that on the 20th day of April, 1914, the number of the inhabitants in Kansas City, Missouri, was at least the sum of two hundred and seventy-five thousand.”

As to the appropriation demanded the commissioner of this court found:

“From the foregoing, and considering also a large volume of other evidence on the subject not summarized here, I find:

“First. That there existed on April 20, 1914, a necessity for the addition of more men to the police force of Kansas City, Missouri.

“Second. That the sum of money demanded by relators, to-wit, $650,000, will provide an adequate police force for the protection of the lives and property of the citizens of Kansas City, Missouri; and that there exists a reasonable necessity for the expenditure of said sum for that purpose in the fiscal year.

“Third. That the expenditure of said sum will not produce a police force in excess of the number authorized by the provisions of section 9787, Revised Statutes 1909.”

It should he stated that our commissioner also found that the appropriations actually made by respondents to other departments of the city were necessary to the needs of those departments. All of these findings are well founded in the facts of the case, and we shall accept them as correct. In fact, counsel for respondents do not deny that $650,000 is not a rea sonable sum for the police department of the city, but only claim that it would tend to cripple other departments to take that much out of their general fund for this one purpose.

The mayor of the city, in a splendid argument of his case before this court, did not deny the fact that more police protection was necessary, but argued that he could not afford more than $500,000 out of the funds he had at his disposal, and properly take care of a deficit created before his term, and the other departments of the city government. These admitted facts bring us to face a plain legal proposition, and this we take up now. It is found that the demand made by relators was clearly within the law. It is found that the number of policemen provided for in the demand of relators is not in excess of the number provided by law. In other words the Board of Police Commissioners have made a demand fully authorized by the law, and even less than' they might have demanded. On the other hand it is contended that, considering the demands of other departments, the demand of the police commissioners is unreasonable. We have here the square issue. Even if it be conceded that there is a discretion in the police commissioners as to the demands of their department, what governs that discretion? If the law gives them a discretion, and they have exercised that discretion clearly within the limits fixed by the law, can it be disturbed? We think not. Their discretion goes to the demands of the police department solely.

But let us go deeper. If, as we have held, the State can by law establish a metropolitan police system, and if by law, as, we have held,' the State can compel the municipality to pay the support of such system, then isn’t the fault with the Legislature and not with the officers called upon to enforce the legislative act. Had this law said there must be one policeman for every 700 inhabitants and fixed the salaries as it does, what could the city have said when the demand was made for the necessary funds for support. Evidently she could have only said that the Legislature had passed an unreasonable and harsh law, if in fact it was such a law. But the law is not bad for that reason. The Legislature is the sole judge of the reasonableness of the law. Even the courts cannot declare laws void, because the courts may deem them unreasonable. The remedy is with the Legislature and not elsewhere.

' Now, if the respondents could not evade the demand under a law where the State had said you must pay for one patrolman, and other necessary officers with the patrolmen, for every seven hundred inhabitants, how can they evade the demand of the police commissioners, the State’s agents, who are empowered to fix a number within a given maximum? Under the Mason case, supra, they could not evade the demand in the first-mentioned case. Can they in the latter? We think not. Under the Kansas City law the State empowers a given body to fix the required force from time to time, within given limits. This body in good faith, and clearly within the terms of the act fixes the force. In the absence of fraud or bad motives, these acts cannot be questioned. We need not discuss bad motives, for it is conceded in this case that the police department for efficiency needs the men. The law may be unreasonable, but that does not empower this court to act. The Legislature is the judge of that. Had the Legislature said to Kansas City and other cities of her class, you must use one-half of your funds for the metropolitan police system established by the State, this court might think the law an unreasonable law, but we could not permit an evasion of it for that reason. We can declare- ordinances void for being unreasonable in their particular application, hut not laws.

If therefore we concede the power of the State to establish a metropolitan police system, as we must, and if we concede the power of the State to" demand of the city the support of that system, as we must concede, then the reasonableness of the State’s demands as to amounts as fixed by law is not for the courts. So in this case if the demand made is one thoroughly within the law, this court is powerless to help the respondents.

The very able mayor of this unfortunate city has asked us to point to the place where he can get the money to meet the demands. Counsel for relators undertake to point to the place. But we will not go into the matter of facts. We will only say that the record before us shows increased appropriation for most of the departments from 1910 to date, whilst it shows a decrease for the police department. We can only say to those officers of Kansas City that the law points to them the way. It requires the police commissioners to make their estimate.and demand at the beginning of your fiscal year. If that demand is within the law, you are then in position to meet it. At the time the law requires it. to be made you have before you the whole- city loaf to be cut and distributed. The law says that at - the instance of the sovereign State you must cut a certain slice of that loaf for police protection to your citizens and the other citizens of the State. You then had it-within-your power to meet the demands of the law. If the law is a harsh one go to the Legislature.

There are other minor matters in the briefs, which we have examined and found to be without substance.

From what has been said it follows that our peremptory writ should go, and it is so ordered;

Brown,1 Bond and Blair, JJ., concur; Woodson, G. J., dissents in an opinion filed; Baris, J., dissents; Walker, J,, not sitting.

WOODSON, C. J.

I am unable to fully agree with the conclusions reached in the majority opinion filed in this case, and must therefore express my views as to points of diversion.

I do not endorse the extreme views taken by counsel for either party.

In my opinion, it was not the intention of the lawmakers to empower the Board of Police Commissioners with unlimited authority to compel the city to appropriate whatever sum of money it might see proper to demand for the use of the police department regardless of the requirements of the city for the support and maintenance of the various other departments thereof. If that was true then the Board of Police Commissioners would have the power to compel the city to appropriate for its use and support the entire revenues of the city, the $1,800,000, and thereby completely destroy the city government.

Nor upon the other hand, do I believe that it was the intention of the lawmakers to invest the city with the arbitrary power to withhold all support from the police department. If so, then the city would totally destroy the metropolitan police system, a State institution as well as a city institution, and thereby place its authority above the power of the State; and at the same time endanger the peace and safety of the city, by destroying all police protection and regulations.

My opinion is that it was the intention of the lawmakers that the entire revenues of the city should be ascertained for each fiscal year, and after that had •been done, the police board and the city authorities should meet and consult together and consider the various departments of the city, including the police department, and estimate the proportionate amount each will contribute to the peace, safety, health and wellbeing of the city, and the relative amount of money that will be required for their support and maintenance, and then apportion the entire revenues of the city among all of the departments upon that basis.

In other words, the laws creating the other departments of the city are just as valid and binding as that creating the police department, and just as useful for the wellbeing of the city, differing only in degree, all of which must be maintained out of the revenues of the city, and that should be done in proportion to the amount of good each contributes to the wellbeing of the city. This is unquestionably what the lawmakers intended, and if that mode of distribution of the revenues of the city is followed, then all departments will be maintained upon an equal footing, and equally prepared to perform their duties to the city and State; and at the same timé prevent the city from crippling the police department, and the latter from crippling the city or any of her departments.

Getting down to the facts of this case: Luring oral argument I was of the opinion that the deficits of the city were not legal obligations against it, and should not therefore be taken into consideration in the distribution of the revenues among the various departments. But since investigations made I have changed my opinion in that regard; and find that they are legal demands against the city, and she must pay them, which must come out of the revenues of the city.

With these preliminary observations as to the rules of law which should govern these matters, and after applying them to the distributions made to each department, when considered in thé light of their relative benefits to the city, as shown by the evidence in the ease, I am unable to see wherein any unjust discrimination has been made against the police department.

I therefore dissent.