State Ex Rel. Field v. Smith , 329 Mo. 1019 ( 1932 )

I do not concur in the views expressed in the principal opinion and accordingly express my views in a dissenting opinion.

This is an original proceeding in mandamus brought by the Police Commissioners of Kansas City, to compel the City Council of that City to appropriate the sum of $1,442,425, the amount estimated by said Commissioners as the cost of maintaining the Police Department of Kansas City, for the fiscal year 1931-2.

What is now Article XXIII of Chapter 38, Revised Statutes 1929, creates and establishes within every city in the State having a population of 200,000 and less than 500,000 inhabitants a board of police, to be called the Police Commissioners, and through such board a system of metropolitan police. Pursuant to this statute a system of metropolitan police was set up in and for Kansas City. It is settled, not only by the former decisions of this court but by the weight of authority in other jurisdictions having constitutional provisions similar to our own, that the State has authority to provide by statute for a metropolitan police force for its cities, and compel them to pay the expense thereof by appropriations out of the city's revenues. [State ex rel. v. Mason, 153 Mo. 23, 54 S.W. 525, and cases cited; State ex rel. v. Jost, 265 Mo. 51, 175 S.W. 591; American Fire Alarm Co. v. Commissioners, 285 Mo. 581, 227 S.W. 114; 1 Dillon on Municipal Corporations (5 Ed.) p. 175, secs. 103, 104.] Respondents state in their brief that they do not question the right of the State to provide a system of metropolitan police for Kansas City, and require the city to pay the cost thereof. The contention is that in attempting to do so, the Legislature transgressed certain constitutional provisions.

The statute in question provides, among other things, the following:

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

Pursuant to the mandate of this statute, the Police Commissioners estimated the cost of maintaining the Police Department of Kansas City, for the fiscal year 1931-2 at $1,442,425, and certified such estimate to the common council of the city. Upon the refusal of the council to appropriate the amount so estimated, this mandamus proceeding was brought to compel the making of such appropriation. In their return to the petition for the writ, respondents assert that Section 7515, supra, which requires the council to appropriate the amount estimated by the commissioners, as well as Sections 7516, 7524 and 7535 of the same statute which relate to the organization, equipment and maintenance of the Police Department are each unconstitutional and void.

The principal opinion holds that these statutes prescribe merely the nucleus of the personnel of the police force and confer upon the Police Commissioners an unlimited authority and an uncontrolled discretion with respect to appointing, organizing, arming and equipping a permanent police force for Kansas City. A reasonable construction of the statute does not justify this conclusion. Section 7524 of the statute makes specific provision for the appointment of the following officers and patrolmen and prescribes the limit of their salaries; chief of police, one chief of detectives, a secretary and assistant secretary of the board, one captain for each police district and two captains at headquarters, one lieutenant for each district, sergeants not to exceed four for each district, secretary to the chief of police, police surgeon, detective sergeants not to exceed one for each fifteen detectives, police detectives not to exceed one for every twelve patrolmen, patrolmen not to exceed one for every seven hundred inhabitants, police matrons, superintendent of police signal system, police signal operators not to exceed three for each police station, property clerks, janitors not to exceed one for each police station and chauffeurs not to exceed two for each police station.

As I read this statute, instead of prescribing a mere nucleus of the personnel of a police force and granting to the police commissioners an unbridled discretion to appoint, organize, arm and equip a permanent police force, it does the exact opposite. The basis of a permanent police force is the number of patrolmen. This statute expressly limits that number to one for every seven hundred inhabitants and provides for the necessary officers and other help. It is true the statute leaves some things, which we shall hereafter notice, to the discretion of the police board. Necessarily so, because the Legislature meets only once in two years, and it is a matter of common knowledge that such a body, if it attempted to do so, could not determine all facts necessary to the successful operation of a metropolitan police force. In support of the holding that this statute is invalid, the principal opinion calls attention to the fact that while Section 7524 limits captains and lieutenants to one and sergeants to four for each police district, but Section 7535 without prescribing any conditions whatever gives the commissioners carte blanche to divide the city into as many police districts as they may see fit; that signal operators are limited to three, and janitors, turnkeys and chauffeurs to two for each police station, but there may be just as many police stations as the commissioners in their wisdom or caprice may establish.

The necessary result of this argument is that the statute is invalid because it affords an opportunity to the police board to indirectly increase the number of policemen and employees by creating police districts and establishing police stations. It is true the creating of a police district would add to the force, one captain, one lieutenant and four sergeants, and the establishment of a police district would add three signal operators, two janitors, two turnkeys and two chauffeurs. But even so, I do not agree that the delegation of authority to the police board to create police districts and establish police stations renders the statute invalid, because the delegation of such a power to the board is not the delegation of legislative authority. While the Legislature cannot delegate authority to make a law, it can delegate authority to determine such details as may be necessary to a successful administration of the law. The statute in question does not delegate legislative authority. The backbone of the force is the number of patrolmen and that number is limited to one for every seven hundred inhabitants of the city. The Legislature recognized that in the administration of the law, it would be necessary to divide the city into police districts, and it gave the board authority so to do. The statute limits the number of officers and employees that may be appointed in each police district. The same provision is made as to police stations. The only thing left to the discretion of the board is the number of police districts and stations.

Of necessity, a legislative body could not undertake to determine all the facts incident to the successful operation of such a law. The necessary number of police districts and stations depends upon conditions existing in the city, and such needs may increase or diminish with the growth of or changing conditions in the city. The delegation of authority to the police board to divide the city into police districts and establish police stations is a permissive administrative regulation. While the reasonableness of such administrative regulations might be subject to review by the courts, they do not amount to a delegation of legislative power in violation of the Constitution. [Bailey v. Van Pelt, 78 Fla. 337, 352.] "There are many things upon which wise and useful legislation must depend, which cannot be known to a lawmaking power, and must, therefore, be a subject of inquiry and determination outside the halls of legislation." [State v. Thompson, 160 Mo. 333, 345, 60 S.W. 1077.] No claim is made in this case that the authority given the board to establish police districts and stations is arbitrary or unreasonable. Neither is it claimed that the board, in the exercise of the authority granted to it, has created more districts or stations than is necessary for the successful operation of the Police Department. The contention is that the authority granted the board to establish police districts and stations is delegation of legislative power to the board. For the reasons heretofore stated, this contention cannot be upheld. The authority of the police board of Kansas City to establish police districts was discussed by this court en banc in the case of State ex rel. v. Jost, 265 Mo. 51, 79, 175 S.W. 591. We there said:

"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."

It is claimed that the constitutional question invoked in the instant case was not raised in the Jost case and for that reason what we there said is obiter dictum and therefore, not a precedent. That may be true, but if it be good logic, the fact that it might be obiter in the Jost case, does not prevent us from adopting it as the law in this case, and for the reasons heretofore stated, I think we should do so.

Attention is also called to the following provision of Section 7524:

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

The principal opinion holds that the patrolmen constituting a traffic squad are state officers, and the positions filled by them are public offices. The opinion also holds that the attempted delegation to the board of police of the power to create such offices is clearly void. State ex rel. v. Smiley,304 Mo. 549, 557, 263 S.W. 825, is cited in support of such holding. We agree that members of a traffic squad are public officers, and the positions filled by them are public offices. We also agree that the Legislature cannot delegate to the board of police authority to create a public office. But we do not agree that the statute in question delegated such authority to the board of police, and in my judgment, the Smiley case cited in the opinion is not an authority for holding that it does. The statute construed in the Smiley case provides that counties containing one hundred thousand inhabitants or more might, in their discretion, appoint a county counselor. Contention was made that the statute was invalid on the ground that it attempted to delegate to the county court authority to create the office of county counselor. This court en banc held otherwise. We there said, "The statute itself creates the office, potentially, to come into actuality upon the happening of a future contingency; namely, the exercise of the power of appointment conferred by it upon the county court." If a statute authorizing a county court to appoint a county counselor, creates that office, by the same token, a statute authorizing the board of police to appoint a traffic squad, creates such offices.

The principal opinion calls attention to the provision of the statute which authorizes the board of police to arm and equip a police force, to provide itself with "such clerks and other help as may be necessary for the transaction of its business . . . and furnish all the necessary materials, and provisions for a perfect and complete organization and equipment of the police force and police department of the city."

It would be impractical for the Legislature to attempt to detail the kind and amount of equipment necessary to enable the police department to successfully cope with crime in a great city, or to specify the number of clerks or other employees necessary to a successful administration of the law. The statute declares the general public purpose, limits the force as far as is practical and leaves the details of the administration of the law to the discretion of the board. "The Constitution itself does not require the impracticable or the impossible." [Trimmier v. Carlton (Tex.), 296 S.W. 1070, 1082.] Multiplied instances of this character of legislation could be noted. For example, the Public Service Commission Act (Sec. 5129, R.S. 1929) provides as follows:

"The commission shall have power to employ, during its pleasure, such clerks, stenographers, rate experts, agents, special agents, examiners, engineers, accountants, auditors, inspectors, experts and other employees as it may deem to be necessary to carry out the provisions of this and other laws, or to perform the duties and exercise the powers conferred by law upon the commission."

The gist of the holding in the principal opinion is that the statutory provisions heretofore discussed, which give the police board a discretion in respect to arming and equipping a police force and providing such help, materials and provisions as it deems necessary to make the force and the department perfect and complete, might be regarded as relating to ministerial duties but for the fact that it operates as a power to tax, and therefore amounts to an unlawful delegation of the taxing power to the police board. This conclusion is not sustained by the authorities. We held in the Mason case, supra, that the State levies the tax. We there said:

"The argument that a board without responsibility to the municipality levies the tax is utterly without foundation. 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."

Attention is called to the fact that the statute construed in the Mason case is different from the statute involved in this case in that it requires the council to deduct from the revenue of the city the amount necessary to pay the interest upon the indebtedness of the city, the amount necessary for the expenses of the city hospital and health department, the amount necessary for lighting the city, and the sum required by law to be placed to the credit of the sinking fund of the cities, before paying the amount certified and demanded by the police board, while the statute involved in the instant case requires the council to appropriate the sum certified to it by the board of police regardless of the needs of other departments of the city.

The fact that the statute construed in the Mason case required that the amount necessary to care for the needs of certain other departments of the city should be deducted from the city revenues before paying the demands of the police board, furnishes no reason for saying that a statute which does not make such requirements, or in some way limit the demands of the police board, is unconstitutional. The State is the source of all power to collect revenue in the city, and has authority to require the city to pay the estimated needs of the police board in preference to equally necessary needs and demands of other departments of the city. We so held in the Mason case. We there said:

"The query of learned counsel for the auditor, `Has the General Assembly the further power to require such appropriation to be made in preference to appropriations for other equally necessary departments out of any revenue of such cities, as is attempted by the thirteenth section of the act of March 15, 1899?' is unhesitatingly answered in the affirmative. The State is the source of all power in the city to collect revenue at all, and has the same power over the revenue of the city collected under and by virtue of the laws of the State as it has over state and county revenue, and can require such portion as it may direct to be paid to the support of its constabulary, in preference to any purpose which the city might perchance deem more essential. [Ray Co. v. Bentley, 49 Mo. 236; State v. Board of Education of City of St. Louis, 141 Mo. 45, 41 S.W. 924; State v. Field, 119 Mo. 593, 24 S.W. 752; State v. Owsley, 122 Mo. 68, 26 S.W. 659.]"

The opinion in the Mason case quotes approvingly from Judge DILLON and Judge COOLEY the following:

"Judge DILLON, in his admirable work on Municipal Corporations, in note 1 to 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. Thus, in People v. Mahaney,13 Mich. 481, an act of the Legislature creating a board of police commissioners for Detroit was assailed as unconstitutional, but it was successfully defended by the court in an opinion by Judge COOLEY. One remark in the opinion is peculiarly applicable here. He says: `The taxation under this act, it is said, is really in the hands of the police board, a body in the choice of which the people of Detroit have no voice. This argument is one which might be pressed upon legislative department with great force, if itwere true in fact. But, as the people of Detroit are really represented throughout, the difficulty can hardly be regarded as fundamental. They were represented in the Legislature which passed the Act, and had the same proportionate voice there with the other municipalities in the State, all of which received from that body their powers of local government, and such only as its wisdom shall prescribe within the constitutional limit."

Judge COOLEY in his valuable work on Taxation, Vol. 1 (4 Ed.) page 196, says:

"It is never assumed by the people that the Legislature can take such supervision of all the infinite variety of interests in the State, and of all local as well as general affairs, as to be able to determine in every instance precisely what is needed in matters of taxation, and precisely what purposes shall at any time, under the particular circumstances, be provided for. There is a difference between making the law and giving effect to the law; the one is legislation and the other administration. We conceive that the Legislature must, in every instance, prescribe the rule under which taxation may be laid; it must originate the authority under which, after due proceedings, the tax gatherer demands the contribution; but it need not prescribe all the details of action, or even fix with precision the sum to be raised or all the particulars of its expenditure. If the rule is prescribed which, in its administration, works out the result, that is sufficient; but to refer the making of the rule to another authority, would be in excess of legislative power. For instance, the Legislature, with the utmost propriety, may provide for a court of claims or a state board of audit, whose adjudications against the State shall be final upon it; and may direct that the amounts awarded shall go into the general levy for the year. Here is a rule to be properly worked out by a proper agency."

It may be that a statute which requires a city to pay for the support of the police department, whatever amount the board of police may estimate, without limitation as to the amount that may be estimated, is an unwise law, but the wisdom of legislation is a question for the lawmakers and not the courts. [State ex rel. v. Jost, supra.]

It is said in the principal opinion that the reasons given for holding the statute unconstitutional should not be construed as in any wise going to the constitutional validity of the statutes creating police systems for the City of St. Louis and for cities of the first class operating under general law, because those statutes differ radically from the one now in judgment.

Section 6367, Revised Statutes 1929, applicable to cities of the first class, makes the following provision as to the police board: "Said board shall appoint such subordinates as they may need, at such compensation as may be fixed by the board. Said board may divide the city into the needful number of police districts, and provide each of them, if necessary, a station house or houses, with all things and attendants required for the same, and such other accommodations as may be required for the use of the police." Section 6364 limits the number of captains, lieutenants and sergeants that may be appointed in each district, but there is no limitation on the number of districts that may be created or the stations that may be provided. There is no limitation on the number of subordinates the board may appoint or the compensation it may pay them. Section 6363 of the same statute empowers the board to arm and equip the police force as they may judge necessary.

It appears to me that if the statutes applicable to Kansas City are unconstitutional because they delegate to the board of police the power to tax, the statutes applicable to first class cities operating under the general law are subject to the same objection.

It is true that the general law applicable to first class cities provides that in no event shall a common council be required to appropriate for use of the police board in any fiscal year an amount of money in excess of one-sixth of the revenue of such year. But the fact that these statutes so provide furnishes no reason for holding that the statute applicable to Kansas City is void because it does not place a limit on the amount to be appropriated for the use of the police board. We so held in the Mason case to which we have heretofore called attention.

For the reasons stated, I respectfully dissent. Atwood, C.J., concurs.