State Ex Rel. Sayad v. Zych

642 S.W.2d 907, 1982 Mo. LEXIS 537

• Court: Supreme Court of Missouri
• Decided: December 3, 1982
• Docket: 64264
• Status: Published

Opinions

HIGGINS, Judge.

The St. Louis Board of Police Commissioners seeks a writ of mandamus to compel the City of St. Louis to appropriate the amount of plaintiff’s estimated and certified budget for the fiscal year beginning May 1, 1982. A preliminary order in mandamus was issued August 6, 1982. The question is whether the St. Louis Board of Police Commissioners is a “state agency” subject to the limitations of article X, section 21, of the Missouri Constitution. If the Police Board is a state agency, it is not entitled to a peremptory writ in mandamus. The preliminary order in mandamus is quashed.

The St. Louis Board of Police Commissioners was created by the Missouri Legislature (Act of March 27, 1861, 1861 Mo.Laws 446); it presently governs the St. Louis police force under sections 84.010 to 84.340 RSMo 1978. On March 31, 1980, the Police Board, pursuant to section 84.210.1 RSMo 1978,¹ certified its estimated budget for fiscal year 1980-81 in the amount of $66,634,-713. The City adopted an ordinance, effective November 6, 1980, appropriating the amount of $65,334,715.² On November 4, 1980, the people of Missouri amended their constitution, article X, sections 16 through 24 (the Hancock Amendment), to provide inter alia:

Section 21. State support to local governments not to be reduced, additional activities and services not to be imposed without full state funding. The state is hereby prohibited from reducing the state financed proportion of the costs of any existing activity or service required of counties and other political subdivisions. A new activity or service or an increase in the level of any activity or service beyond that required by existing law shall not be required by the general assembly or any state agency of counties or other political subdivisions, unless a state appropriation is made and disbursed to pay the county or other political subdivision for any increased costs.

This section became effective December 4, 1980. Mo. Const. art. XII, § 2(b).

The Police Board certified a budget in the amount of $73,179,726 for the fiscal year beginning May 1, 1981; the City appropriated that amount by ordinance.³

On March 31,1982, the Police Board certified an estimate of expenses in the amount of $76,272,420. The City refused to appropriate that amount despite the requirement that the City “set apart and appropriate the amount so certified,” section 84.210.1 RSMo 1978; and demanded the Police Board seek funding from the State of Missouri for the amount by which the Board’s 1982-83 budget exceeded its 1980-81 budget. The City took the position that the Police Board is a state agency, and as such cannot compel the City to appropriate an amount of money above the amount appropriated by the City for use by the Police Board as of the effective date of article X, section 21.

On July 21, 1982, the City sought a writ of mandamus in St. Louis Circuit Court to compel the Police Board to seek funding from the State of Missouri in the amount the Police Board’s 1982-83 budget exceeded its 1980-81 budget. On August 6,1982, the Police Board filed this petition for writ of mandamus. Because adequate relief could not be afforded by the lower court, a preliminary order in mandamus was issued the same day.⁴

The present statutes governing the Police Board, sections 84.010 to 84.340, RSMo 1978 and Supp., carry forward the general nature and function of the original Police Board. The specific provisions of the original and present state statutes are similar. Compare sections 84.010 to 84.540 RSMo 1978 and Supp. with Act of March 27, 1861, 1861 Mo.Laws 446. They require that the Police Board be composed of the Mayor of St. Louis (or one who may be officially acting in that capacity) and four gubernatorial appointees; the powers and duties of the Police Board are prescribed; the Police Board is made responsible for the establishment and control of the St. Louis police force; the City of St. Louis is prohibited from interfering with the powers, or the exercise of the powers, of the Police Board. In addition, the statutes require that the Police Board estimate its annual expenses and that the City appropriate that amount.

Shortly after creation of the Police Board, this Court, in State ex rel. St. Louis Police Commissioners v. St. Louis County Court, 34 Mo. 546, 571 (1864), declared “the Police Commissioners are an agency of the State Government, and required to perform within a specified locality some of the most important duties of the government.” This declaration was reiterated in State ex rel. Hawes v. Mason, 153 Mo. 23, 51, 54 S.W. 524, 531 (1899):

The State levies and requires one of its own agencies to collect and pay over the tax to liquidate a certain, not an unlimited, sum, when demanded by its other agency, the board; and it does not lie in the mouth of the City to plead other obligations as superior to the demands of its creator.

The general assembly created a Kansas City Police Board similar to the St. Louis Police Board. The legislation creating the Kansas City Police Board contains provisions similar to the original and present-day St. Louis Police Board statutes. §§ 84.350 to 84.890 RSMo 1978 and Supp. In American Fire Alarm Co. v. Board of Police Comm’r, 285 Mo. 581, 227 S.W. 114 (1920), this Court declared the Kansas City Police Board was also a state agency. Id. 285 Mo. at 589-92, 227 S.W. at 116-17; see also State ex rel. Field v. Smith, 329 Mo. 1019, 1026, 49 S.W.2d 74, 76 (1932) (where the Court accepted the proposition that the Kansas City Police Board was “a state agency, a department of the state govern-ment_”)

Several cases address whether police boards have authority to demand funds from their city. This Court said in the Mason case:

[T]he 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 .... From 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 municipal funds.

State ex rel. Hawes v. Mason, 153 Mo. 23, 43, 54 S.W. at 529. Accord State ex rel. Reynolds v. Jost, 265 Mo. 51, 175 S.W. 591 (banc 1915); State ex rel. Spink v. Kemp, 365 Mo. 368, 283 S.W.2d 502 (1955); State ex rel. Priest v. Gunn, 326 S.W.2d 314 (Mo. banc 1959); ABC Security Service, Inc. v. Miller, 514 S.W.2d 521 (Mo.1974). These cases hold that the State has the power to compel municipalities to fund a police force. The general assembly has delegated this authority in the City of St. Louis to the Police Board; and to the extent of the state’s power, the Police Board can require the City to appropriate the sum certified by the Police Board to the City. Because the Police Board performs these state functions, it is a state agency for purposes of article X, section 21, of the Missouri Constitution.

In Boone County Court v. State of Missouri, 631 S.W.2d 321 (Mo. banc 1982), this Court determined that powers of the general assembly are limited by article X, section 21. Section 50.330, RSMo 1978, required that salaries for county officers be drawn from the county treasury. After article X, section 21, became effective, the general assembly enacted section 52.420, RSMo Supp. 1981, to increase the annual salary of collectors of second class counties by one hundred dollars. This Court held that article X, section 21, required the general assembly pay for such increases. Id. at 326. The Court reasoned that if the county paid the collectors more than was required by law after article X, section 21, became effective, an increase in the county’s level of activity would result. Article X, section 21, prohibited the general assembly from requiring this increased activity unless a state appropriation was made to pay the county for the increased cost. Id. at .325-26. Similarly, article X, section 21, prohibits any state agency from requiring increased activity of counties or other political subdivisions. Consequently, the Police Board, as a state agency, cannot require the City, a political subdivision, to increase its level of activity beyond that required by law when article X, section 21, became effective unless a state appropriation is made to fund the increase.

The Police Board, noting that the City provided the total support for the Police Board prior to the Hancock Amendment, argues that article X, section 21, applies only where the state finances a portion of state mandated local activities. This argument is answered in the comparable situation presented in Boone County where the pre-Hancock statute required counties to pay the entire amount of county officers’ salaries. This Court determined that when the general assembly subsequently mandated increases in these salaries, article X, section 21, required a state appropriation to cover the cost of these increases.

The Police Board is also in error in its assertion that article X, section 21, does not apply to state agencies that are not a part of the state budgetary appropriation process. Article X, section 21, employs the words “any state agency.” When the word “any” is used in a constitutional provision, its meaning is “all-comprehensive, and is equivalent to ‘every’.” Boone County Court v. State, 631 S.W.2d at 325.

The level of the City’s activity in relation to the Police Board required by existing law upon the adoption of article X, section 21, was the amount certified by the Police Board for the fiscal year 1980-81. The City is required by section 84.210.1 RSMo 1978, to appropriate the certified amount unless the proposed expenditure is illegal, or a particular discretionary power given by the state to the Police Board has been arbitrarily or unreasonably exercised. State ex rel. Sanders v. Cervantes, 480 S.W.2d 888, 890 (Mo. banc 1972). There is no evidence that either of these exceptions apply; the certified amount of $66,634,713 is the amount required by existing law for purposes of article X, section 21. Mason, 153 Mo. at 53, 54 S.W. at 534. It would be unconstitutional for the Police Board to require the City to appropriate any more than $66,634,713, the budget certified as of the effective date of the Hancock Amendment. In seeking mandamus, the Police Board must stand upon the existence of a clear, unequivocal, and specific right to enforce an act required by law; the Court may not coerce the performance of an unlawful act. State v. Gunn, 326 S.W.2d at 325.

Article X, section 21, is explicit in its prohibition against state agencies requiring increased activity of cities or other political subdivisions without an attendant state appropriation to cover the increased cost. Mo. Const, art. X, § 21. The Police Board is a state agency subject to this prohibition. Therefore, the Police Board may not require the City to fund an increase in its budget above the amount certified in fiscal year 1980-81 but must look to the general assembly to fund the increase.

Accordingly, mandamus will not lie to compel the City to fund the increase in the Police Board’s certified budget for fiscal year 1982-83, and the preliminary order obtained to that purpose is quashed.

DONNELLY, C.J., and SEILER and WELLIVER, JJ., concur. GUNN, J., dissents in separate dissenting opinion filed. RENDLEN, J., and PINCH, Senior Judge, dissent and concur in separate dissenting opinion of GUNN, J. BILLINGS, J., not participating because not a member of the Court when cause was submitted.

1 . 84.210. Board of police — annual estimate of expenses — claims for expenses (St. Louis). — 1. It shall be the duty of said boards, within thirty days after sections 84.010 to 84.340 shall take effect, and annually thenceforward on the thirty-first day of March of each year to prepare, in writing, an estimate of the sum of money which will be necessary for each current fiscal year, to enable them to discharge the duties hereby imposed upon them, and to meet the expenses of the police department, and they shall forthwith certify the same to the board of common council or municipal assembly, as the case may be, of said cities, who are hereby required to set apart and appropriate the amount so certified, payable out of the revenue of said cities, after having first deducted the amount necessary to pay the interest upon the indebtedness of said cities, the amount necessary for the expenses of the city hospital and health department, the amount necessary for lighting the city, and any sum required by law to be placed to the credit of the sinking fund of said cities.

2 . Although the City is required to appropriate the entire amount certified by the Police Board, limited reductions have not always been challenged by the Police Board. Rather, the Police Board has negotiated increases at a later time if necessary. State ex rel. Priest v. Gunn, 326 S.W.2d 314, 317-18 (Mo. banc 1959). In March, 1981, the City agreed to make an additional $600,000 available to the Police Board. In actuality, the Police Board expended only $65,070,527 in fiscal year 1980-1981.

3 . Although the City appropriated more money for the Police Board in 1981-82 than it maintains the Hancock Amendment permits, the City is not estopped from alleging that the Hancock Amendment limits the Police Board’s annual budget to the level required in 1980-81. Gunn, 326 S.W.2d at 325-26.

4 . Inasmuch as the Police Board is presently operating on its certified budget for 1982-83, prompt disposition of this case has been undertaken.