State ex rel. Police Commissioners v. County Court

Bates, Judge, delivered the opinion of the court. The General Assembly, by an act approved March 27th, 1861, “ established within and for the city of St. Louis, a board of police, to be called the Police Commissioners of the city of St. Louis.” This board was charged with the duties within the city of St. Louis, to preserve the public peace, prevent crime and arrest offenders; protect the rights of persons and property; guard the public health; preserve order at every public election and all public meetings and places, and on all public occasions; prevent and remove nuisances in all streets, highways, waters and other places; provide a proper police force at every fire for the protection of firemen and property; protect emigrants and travellers at steamboat landings'and railway stations; see that all laws relating to elections and to the observance of Sunday, and regulating pawnbrokers, gamblers, intemperance, lotteries and lottery policies, vagrants, disorderly persons, slaves and free negroes, and the public health, are enforced; and also all laws and ordinances of the city of St. Louis which may be properly enforceable by a police force. To enable the board to perform these duties it was authorized to employ a permanent police force, the officers of which were designated by the act, and the pay of officers and ordinary policemen fixed by it. The board was authorized to provide such office and furniture and such clerks and subordinates as it might need, and to have and use a common seal, and to provide station houses and requisites for the same. It was also authorized in extraordinary emergencies to raise such additional force as the exigency may demand, and, for the preservation of the public peace and quiet, to require the sheriff of the county of St. Louis to act under their control, and, if ordered by them to do so, to summon the posse comitatus, and employ such posse subject to their direction. They were also authorized to call to their aid any military force, lawfully organized in the city, — 568 — and they were authorized to make arrests in any part of the State. The city of St. Louis was deprived of all control over the police. The commissioners were authorized to make requisitions upon the city of St. Louis, from time to time, for such sums of money as they might deem necessary for executing their duties, which the city was required to pay. The General Assembly by another act, approved December 12, 1863, increased the pay of the policemen, and also provided for an increase of their number. This act also required the city of St. Louis to pay the requisitions of the commissioners for the additional expense and limited the whole amount of appropriations for police purposes to $175,-000. The General Assembly by another act, approved February 5th, 1864, enacted as follows: “ Sec. 3. The county of St. Louis shall be chargeable with one-fourth of the whole expense of the police force of said city of St. Louis for the year 1864, and for each year thereafter ; and the County Court of said county shall from time to time appropriate money out of the county treasury to meet that proportion of said expense; and whenever the said Board of Police Commissioners shall need money to meet the expenses of said police force, they shall make requisition upon said county for one-fourth, and upon said city for three-fourths thereof.” On the 18th day of February, 1864, the Police Commissioners made a requisition upon the county of St. Louis for seven thousand dollars, for one-fourth of the said police expenses for the months of January and February, in the year 1864, which the County Court refused to allow or to make any appropriation for. The Police Commissioners then applied to this court for a mandamus, commanding said County Court to pay said sum and make an appropriation therefor. A conditional mandamus having issued, the County Court made return to it, that — 569 — 1. The act of February 5th, 1864, is in violation of common right and of the Constitution of the State, in that it appropriates private property without just compensation; that it is retrospective in its operation, and that it violates the principles of taxation as laid down in the Constitution. 2. There is no money in the county treasury that can legally be appropriated to pay the same, the money in the treasury having been raised by taxation prior to the passage of said act and for certain specific purposes set forth in the order for the assessment and levy of the taxes from which such funds were derived, and cannot be diverted from the purpose for which they were collected; that it would be necessary to levy a special tax to pay said police force, and no such special tax can be levied without first making application to the General Assembly for permission to do so. 3. The sum of money required is sought to be recovered and applied for the purpose of paying a debt already incurred by said Police Commissioners or the city of St. Louis prior to the passage of said act, an'd in so far said act is retrospective in its nature, and is inoperative and void. 4. It is not stated or shown to this court what the expense of said police force has been or will be for the year 1864, or that the city of St. Louis has made the appropriations contemplated by said act. 5. The expense of said police for the months of January and February, 1864, had already been paid in the manner provided by law at the time of the passage of said act, and of the issuing of said writ. I. In respect to the first cause assigned, why a peremptory mandamus should not issue, that is, that the act of February 5th is repugnant to the Constitution, — it is said to violate the Constitution in three respects, which will be examined in the order in which they are stated. The first is, that it is an appropriation of private property without just compensation. I remark in the first place that the act does — 570 — not designate any particular fund (described by the source of its derivation or otherwise) which is made chargeable with this expense. It says that the county of St. Louis shall be chargeable with one-fourth of the expense of the police force of the city of St. Louis, and that the County Court shall appropriate money to pay it. It is therefore immaterial, in considering of the constitutional authority of the General Assembly to pass the act in question, to inquire how the county has acquired or may acquire the money necessary to make the payments required by the act. The money belongs to the county by virtue of acts of the General Assembly, and is expended under the direction of the same authority. Counties are subdivisions of the State, in which some of the powers of the State Government are exercised by local functionaries for local purposes, in this instance and generally the functionary being the County Court. The funds of the county are not strictly private property. They certainly do not belong to the citizens who may have contributed them. They are rather public property, the property of the State acquired from the people and the property in the county, and to be used and expended for the benefit of the same people and property. The General Assembly, having the legislative power of the State, determines to what local uses the county funds shall be applied. Its determination and direction may operate unwisely, harshly and unjustly, but that is no argument against its power to direct. It authorizes and causes the funds to be collected, and requires their expenditure for purposes which it determines to be of local interest and benefit, and its determination is final. The judiciary cannot review this determination of the legislative power; cannot inquire whether the Legislature, in directing an expenditure of county funds, judged correctly or not as to its being for the accomplishment of an object of interest or advantage to the inhabitants of the county. In the present case the Legislature has thought proper to direct that the county of St. Louis shall pay one-fourth of — 571 — the expenses of a police in the city of St. Louis, •which is wholly within and forms a part of the county of St. Louis. This court cannot say that this is not a legitimate use of county funds, or that it is a taking or application of private property to public use without just compensation, and it certainly is not an application of property to private use, for 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. 2d. The act is said to be retrospective in its operation, in that it requires the county to pay a proportion of the expense of the police force for the whole year 1864, when a portion of that year had elapsed at the time the act was passed, February 5th. No vested right is taken away or impaired by the act, nor does it impair the obligation of any contract. It simply directs the application to a particular purpose of funds collected by the authority of the Legislature, and over which the Legislature could exercise a power to direct their application within certain limits, which include the object of this act. The previous acts of the Legislature which provided the object for which county funds could be expended, were at all times subject to repeal or alteration, so as to appropriate the funds in a manner, or to objects different from those before provided. No rights had been vested under the previous acts which can be disturbed by this act. The act is not retrospective in its operation. 3d. The act does not violate the principles of taxation as laid down in the Constitution. This point is fully covered by the decision of this court in the case of Hamilton and Treat against the St. Louis County Court, 15 Mo. 3, which case is also of authority upon the other points decided. The case of Wells v. The City of Weston, 22 Mo. 384, merely decides that the General Assembly cannot authorize a municipal corporation to tax for its own local purposes lands lying beyond the limits of the corporation, and. does not conflict with this case. — 572 — II. As to the second cause shown in the return, it is understood to mean, not that there is in fact no money in the treasury to pay this requisition, but that as a matter of law all the money which is in the treasury was collected for specific purposes from which they cannot be diverted. The specific purposes for which the money was collected were those heretofore directed by the Legislature, and this act being a a later expression of the will of the Legislature controls the subject, and, so far as it conflicts with previous acts, repeals them. The county is not a private corporation, but an agency of the State Government, and though as a public corporation it holds property, such holding is subject to a large extent to the will of the Legislature. Whilst the Legislature cannot take away from a county its property, it has full power to direct the mode in which the property shall be used for the benefit of the county. III. The third cause assigned is included in the previous allegation, that the act is retrospective in its operation. IV. As to the fourth cause assigned, the act does not require that the commissioners shall show to the county at any one time what is, or will be the whole expense for a year, but only that the county shall from time to time make appropriations to pay the requisitions of the commissioners, thus showing an expectation that the requisitions will be made at several different times. Nor does the county’s liability at all depend upon the fact, that the city has or has not paid its liability. V. The fifth cause is based upon the same idea as the third, and has been considered as it was presented in the first. No good cause having been shown why the county should not pay the requisition of the Police Commissioners, let the peremptory mandamus issue. Judges Bay and Dry den concur.