State Ex Rel. Board of Police Commr. v. Beach

*182 GANTT, J. Original proceeding’ in mandamus. Belators as tbe Board of Police Commissioners of Kansas City (herein designated Board), seek to compel the City Manager to submit to the City Council a new budget estimate for the fiscal year 1929-1930 containing the sum of $1,529,172 for the use of the Kansas City Police Department, and seek to compel the City Council (herein designated Council), upon submission of said budget to enact an ordinance appropriating said sum for said use. The Board certified a budget estimate to the City Manager and Council totalling said amount. The City Manager and members of the Council asserted the power to question the reasonableness of the amount estimated, declared that in view of the needs of departments of the city the estimate was unreasonable, refused to make the appropriation, announced that $1,150,000 was more than sufficient and appropriated only said sum for said purpose. Htence this proceeding. All sections herein mentioned refer to Bevised Statutes 1919. We ruled in State ex rel. v. Jost, 265 Mo. 51, l. c. 83, 175 S. W. 591, that the City Manager and Council hare no such power. But they here challenge certain items of the budget as not authorized by statute. Answering this the Board contends it is required to certify only the estimated total amount of money néeded and for that reason the City Manager and Council were without power to question the items. We do not agree to this contention. The word “estimate” as used in Section 8926 means an approximate calculation of the financial needs of the police department for the following fiscal year. Such calculation calls for a statement indicating the different purposes for which the money will be needed. From the beginning police commissioners have so construed the section, and we hold that the City Manager and Council are authorized to so challenge said items. On the oral argument the learned City Counselor proclaimed the high character of the police commissioners, disclaimed an intention of charging them with actual fraud, but insisted that certain items of the estimate amounted to a legal fraud in that they were not authorized by law. Among the items questioned are the following: Superintendent of Bureau of Identification, Superintendent of Bureau of Becords, Drill Master, Band Master, Photographer with the Bureau of Identification, Watchmen, Superintendent of Chauffeurs and Motor Equipment, Superintendent of Bepairs, Shop Foreman, Garage Foreman, Machinists, Mechanics, Superintendent of *183 Print Shop, Printers, Investigator, Electrician, Carpenter, Plumber, BJead Lineman, Linemen and Engineer. The Board concedes that these items are not expressly mentioned in the statute, but insists they are authorized by Section 8946, which follows: “The board of police commissioners shall provide itself with a secretary and assistant secretary and such clerks and other help as may be necessary for the transaction of its business, and shall have power to divide the city into police districts and furnish all, the necessary materials and provisions for a perfect and complete organization and equipment of the police force and police department of the city, and may, under the direction and control of the board, of public works, by and with the consent of the common council, evidence by ordinance appropriating money therefor, erect in any police district station house, jails and other accommodations for the use of the police department.” The City Manager and Council argue that the section only authorizes help at the office of the Board. If so, it adds nothing to the authority of the Board, for by Section 8935 (Laws 1921, p. 478) the Board is authorized to appoint a secretary and assistant secretary, and this is about all the help needed in said office. It does need help to provide “a perfect and complete organization and equipment of the police force and police department.” "We think such help is authorized by the direction to the Board to provide itself with “such clerks and other help as may be necessary for the transaction of its business.” The business of the Board is set forth in Section 8919, which follows: “The duties of the board of police hereby created shall be as follows: They shall at all times of the day and night, within the boundaries of the city . . . preserve the public peace; prevent crimes and arrest offenders; protect |the rights of persons and property; guard the public health; preserve order at every public election and at all public meetings and places, and on all public occasions; prevent and remove nuisances . . . ; provide proper police force at every fire for the protection of firemen and property; . . . ” Thus it appears its business covers the entire city and is directed from its office. By the employees of the department, its business is transacted at police and signal stations, property rooms, garages and carpenter, plumber, machine, print and repair shops of the department. To transact said business and to provide “a perfect and complete organization and equipment of the police force and police department,” the employees above listed are needed. Clearly, the Board was authorized by said section to engage their services and fix their compensation. *184 Moreover, Section 8924 provides for the equipment of a permanent police force. Therefore, the provision in Section 8946 that the Board “shall have power to . . furnish all the necessary-materials and provisions for a perfect and complete organization and equipment of the police force and police department,” must be held to authorize the equipment of such adjuncts to the permanent force as may be necessary to the organization of a complete police department. It must be conceded that a Bureau of Identification, Bureau of Records, Garages and Machine, Print, Carpenter, Plumbing and Repair Shops are necessary equipment. If so, the Board is authorized to provide such equipment, engage the services of persons in connection therewith and fix their compensation. The City Manager and Council insist that authority to engage the services of said employees must be expressly given by statute. As supporting this contention they cite State ex rel. v. Jost, supra, l. c. 79, where we said: “This statute places a limit upon every act of the commissioners save and except the number of police districts and as to that nothing is said. In every other respect there is a limit beyond which the Board of Police Commissioners cannot go.” In so stating we referred solely to Section 9787 (now Section 8935 in Laws of 1921, p. 478) which was then under consideration. That section provides only for a permanent police force. The section we are here considering provides for help and equipment necessary to complete the organization of the department. In this connection the City Manager and Council insist that the Board is without authority to create offices and fix salaries. The Board disclaims such authority and answers that it created no offices, but engaged the services of persons in connection with the equipment of the department. The positions challenged are not expressly-provided by law, and the persons holding them are not required to give official bond and do not hold for a fixed term. Our Special Commissioner, to report the testimony with findings of fact and conclusions of law, found that the record disclosed no resolution of the Board creating offices and disclosed no other evidence tending to show an effort to create offices. For convenience, persons holding said positions are designated superintendents and foremen, but they are mere employees and can be dismissed at pleasure. [22 R. C. L. 381; State ex rel. v. Shannon, 133 Mo. 139, 164, 33 S. W. 1137.] Other items challenged follow: Attorney and Assistant Attorney for the Board, Court Bailiff, 54 Chauffeurs and 17 Iiostlers. The Attorney and Assistant Attorney are authorized even under the Council’s theory that the words “other help” must be limited to services rendered the Board at its office. The Court Bailiff attends one of the city courts. Pie is not connected with the permanent force and is authorized under Sec *185 tion 8946. ” The other city court is attended by an old policeman, who was assigned this duty under Section 8934. The fifty-four chauffeurs exceed the limit by thirty-six. Section 8935 (Laws 1921, p. 478). It is shown that these men are uniformed patrolmen assigned to police duty on motor cycles or in automobiles and for that reason must be held to be patrolmen and not chauffeurs. No claim is made that the number of patrolmen, including the thirty-six using motor vehicles, exceed the number authorized by law. It is also shown that the men designated as hostlers perform no such duty. They are janitors and authorized in that number by Section 8935 (Laws 1921, p. 478). The troubles of the Board growing out of the items of the estimate may be traced to a failure to follow the statute in making the estimate. On the face of the estimate the Council was justified in disallowing certain items. However, if the items are shown to be authorized by the facts, they should be allowed. The citizens of Kansas City and the State should not, merely on the face of the estimate, be denied the protection provided for them by law. Ve do not hold that Section 8926 is mandatory, but we note that an estimate made in compliance therewith will afford the Council an ’opportunity to pass on the legality of the items from the face of the estimate. The City Manager and Council also challenge the item for 66 clerks. They admit the authority to employ the clerks, but charge it was wasteful for the Board to do so. The item being within the statute, the City Manager and Council are without authority, to question it. [State ex rel. v. Jost, supra.] At this point the City Manager and Council charge that the Board accepted the appropriation made by the Council and contend, for that ’ reason, it is now estopped to maintain this suit. By paragraph fourteen of the return, they charge the Board with not accepting the appropriation. The Board is further charged ■with, expending each month more than one-twelfth of the sum appropriated, and the City Manager and Council allege they informed the Board several times that they must keep within such appropriation. Thus it appears that the Board did not accept the appropriation, and respondents so understood. The contention is overruled. Other items challenged follow: assistant drill master, $600; tailor, $1680; 2 assistant chiefs of police, $6,000; secretary to the chief of detectives, $2700; 2 captains, $6,000; 13 sergeants, $27,000; 10 detectives, $21,000; 2 assistant surgeons, $1800; totalling, $67,080. After certifying the estimate to the Council, the Board dispensed with the services of the tailor and assistant' drill master. The other items must be classified as part of the permanent force which is created by Section 8935 (Laws 1921, p. 478). The two assistant chiefs of police, two assistant surgeons and the secretary to the *186 chief of detectives are not authorized by said Section 8935, and the two captains, thirteen sergeants, and ten detectives are in excess of the number authorized by said Section 89'35. These items are therefore disallowed. As stated, We held in the Jost case that Section 8935 (Laws 1921, p. 478) “places a limit upon every act of the commissioners save and except the number of police districts and as to that nothing is said. In every other respect there is a limit beyond which the Board of Police Commissioners cannot go.” In this situation the Board asks that our alternative writ be amended. This may be done. [Section 1290, Revised Statutes 1919; State ex rel. v. Baggott, 96 Mo. 63, l. c. 71, 8 S. W. 737.] It appearing that the certified estimate contains legal items in the sum of $1,462,092, our alternative writ is amended to conform to the proof in that respect. It follows that our writ as so amended should be made permanent and should issue against respondents and their successors in office. Let this be done. All concur, except Walker, J., who dissents.