227 S.W. 114 | Mo. | 1920
A demurrer was sustained to the petition in this case, and the plaintiff having refused to amend and electing to stand on its petition, final judgment *587 was given against it and from that judgment this appeal was taken.
The question for decision is whether the action can be maintained against the Board of Police Commissioners of Kansas City as a body politic, the title of the cause being, "American Fire Alarm Company, a corporation, v. Board of Police Commissioners of Kansas City, Missouri, now Composed of James Cowgill, President, John R Ranson and John Halpin, Commissioners, Defendant." The only defendant named in the title was the Board of Police Commissioners of Kansas City, Missouri, and various allegations of the petition show the intention was to sue that body alone, and to sue it as a corporation.
The first allegation of the first count alleges "the defendant, Board of Police Commissioners of Kansas City, Missouri, is and was at all times mentioned herein, a quasi-public corporation created, organized and existing under and by virtue of the statutes of Missouri, said board being composed of three members, two of them appointed by the Governor and confirmed by the State Senate, the third member being the mayor of Kansas City, who, by virtue of his office, is ex officio president of said board." The petition then says James Cowgill was the acting mayor of Kansas City at the time the action was begun, and ex officio president of the defendant, the Board of Police Commissioners of Kansas City; and that John R. Ranson and John Halpin were at said time the duly appointed, qualified and acting members. The petition says Henry L. Jost was the mayor of Kansas City and, as such, ex officio president of defendant board on said 17th day of May and for some time before and after, and Fred A. Lamb, Jr., and James S. Lapsley were at those times the duly appointed, qualified and acting members of the board.
It will not be necessary to set out the petition in full, but only the substance of it. It contains averments regarding the power, on May 17, 1915, of the defendant Board of Police Commissioners of Kansas City, Missouri, under enumerated sections of the Revised Statutes of *588 1909, to employ, equip and arm a permanent police force for the city; to rent apparatus for police alarms and fire alarms, purchase new or additional equipment or other apparatus as it might deem necessary for executing its duties; and furnish all necessary material for a complete organization and equipment of the police force and police department of the city. It is alleged that on said May 17th, M.E. DeShaffon, acting as the authorized agent of the board, entered into a contract with the plaintiff on behalf of the board for the manufacture by plaintiff and delivery to the defendant at Kansas City of three hundred and fifty police signal boxes for the price of $80 per box. Other allegations state facts to show the authority of DeShaffon to make the contract for the board, and the terms of the contract. Then follow averments of the manufacture and delivery by plaintiff to defendant, pursuant to the contract, of fifty-four of said police alarm boxes, which were accepted by defendant and put into service in the police signal system of the city; that afterwards bills were presented by the plaintiff for said fifty-four boxes, and defendant issued its warrant to pay for forty of them, but refused to pay for the remaining fourteen boxes. The first count of the petition, which contains three counts, asks judgment for $1120, the unpaid contract price of said fourteen boxes.
The second count, after stating the quasi-corporate capacity of the board, and who were its members at the date of the filing of the petition, and who on the 17th day of May, 1915, alleges plaintiff sold and delivered to defendant fourteen police signal boxes, of the reasonable value of $1120, which were accepted by defendant and put into use; and that defendant has refused to pay for them and is indebted to the plaintiff in said amount, for which judgment is asked. That is a count in the nature of one inindebitatus assumpsit.
The third count, after alleging the facts regarding the membership of the board on the two dates aforesaid, and the terms of the contract as recited in the first count, says plaintiff, relying on the contract and the *589 good faith of defendant to carry it out, manufactured and delivered to defendant fifty-four boxes, and completed, ready for delivery, with the exception of the wheel numbers, the remaining two hundred and ninety-six boxes. The wheel numbers, according to the petition, were to be furnished by the board, and it is alleged that, although often requested to furnish them, defendant refused to do so; that plaintiff was at all times ready to complete said boxes by putting the wheel numbers on them, and deliver them to defendant according to the contract, and that plaintiff tendered delivery, but defendant renounced and repudiated the contract and refused to carry out its obligations, to the damage of plaintiff in the sum of $24,800, for which judgment is asked. That count seeks recovery for all the boxes, whether delivered or undelivered.
The reason assigned for demurring is that the case purports to be brought against the Board of Police Commissioners as a legal entity, whereas said board is not a legal entity authorized by law to sue and be sued; and further that each count of the petition fails to state facts sufficient to constitute a cause of action.
I. The laws at present in force affecting the Kansas City "Board of Police" as the body is styled in the statutes, are contained in the article comprising the laws applicable to cities of 150,000 and less than 300,000 inhabitants, but theState board was established in 1874 by a special act. [LawsAgency. 1874, p. 327; 3 R.S. 1909, Chap. 84, Art. XVII, secs. 9765 et seq.] The public policy of creating in large cities a system of metropolitan police controlled by a board of police, the members of which were appointed in much the same way, and the expense of the system similarly defrayed, was commenced for St. Louis in 1861. [Laws 1860-61, p. 146; Laws 1899, p. 51; State ex rel. Hawes v. Mason,
The cause was tried in said court on December 7, 1911, resulting in a judgment for the plaintiff declaring and quieting his title to the entire tract. From this an appeal was taken by the answering defendants Burr, Johnson and the Robertsons to this court, where the judgment of the Circuit Court was, on March 2, 1915, reversed, and the cause remanded to the Stoddard County Circuit Court "with directions to the trial court to set aside the judgment rendered in favor of plaintiffs, to grant defendants a new trial, and to proceed with the cause thereafter in accordance with the views heretofore expressed and as modified." [175 S.W. l.c. 966.] The title of defendants was deraigned through a decree of the St. Louis Circuit Court of April 13, 1888, in the case of Charles P. Chouteau v. Cairo Fulton Railroad Company, Henry H. Bedford and others, which the plaintiffs desired an opportunity to impeach for want of jurisdiction of the subject-matter. This court gave them an opportunity to do so, if they could, in the court to which the cause was remanded. It turned out that the infirmity they suspected did not exist, so that the judgment for appellants stood unaffected in that respect.
Up to this time no issue had been made between the several defendants, but all had apparently joined hands in the circuit court as well as in this court to defeat the plaintiffs. *591
year, and the appropriation is payable out of the next annual revenue of the city. [3 R.S. 1909, sec. 9778.] But though the city carries the expense of the Board of Police and of the police system generally, it does this pursuant to a law of the State, which it has no discretion about obeying. That is, in raising and appropriating funds to support the system the city acts as an agent of the State. [State ex rel. Hawes v. Mason,
The pertinency of the foregoing observations and authorities to the point in hand in the present case, consists in their demonstration that the Board of Police and the police system, of Kansas City do not compose a department of the municipal government, and hence the rule that no action will lie against a department of a municipality does not control the question of the liability of the Board of Police or the Police Commissioners of Kansas City to be sued. The health department, water-department, sewer department or any other department or utility of a city, unless expressly made suable by statute, cannot be sued either on a contract or for a tort; and this for the reason that if liability exists, the city itself is the party liable and not the particular department the conduct of which gave rise to the cause of action. Most of the authorities cited in the brief of appellant were disposed of according to that rule; therefore are not in point in the case before us. [1 Thompson on Corporations, sec. 21; Appleton v. Water Commissioners of City of New York, 2 Hill, 432; Swift v. Mayor of New York,
The manner in which the expense of the police system of Kansas City is defrayed is pertinent, too, for this reason: although the system is a state institution, as the cost of it is paid out of the city treasury, the items of the cost would not be embraced within the statute which requires the State Auditor to "audit, adjust and *592 settle all claims against the State and payable out of the Treasury," (meaning out of the State Treasury). [3 R.S. 1909, sec. 11813.]
The facts and the law affecting plaintiff's demand being as we have stated, the demand can be presented for payment neither to the officials of Kansas City nor to those of the State; but must be presented to the Police Commissioners, and if they refuse payment, plaintiff's recourse by action, if it has any, must be against the Commissioners, either sued in the name of a distinct entity as was done in the present case, or in their individual names, but in their official capacity. The precise question is as to the proper defendant or defendants rather than whether the Board of Police is a quasi-corporation.
II. Before taking up the matter of practice, we will notice the contention of defendant that the contract declared on was one the Police Commissioners were without power to make, since the statutes authorized "the renting of apparatus forAlarm Boxes: police alarms," a phrase said to imply that suchPower to Buy. apparatus should not be purchased. [3 R.S. 1909, sec 9778.] But the commissioners were empowered and required to employ a permanent police force for the city and to "equip and arm" the force as "they may deem necessary." [R.S. 1909, sec. 9776.] There was the further requirement that "the cost 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," should be included in the estimate made by the board of the expenditures for a given fiscal year. [Sec. 9778.] The power given to rent apparatus for alarms must be read along with the powers "to arm and equip" the police force as the board might deem necessary, and to purchase additional equipment of arms or other apparatus. When thus read it is apparent the power to rent alarm apparatus was not intended to exclude purchases when the latter were deemed necessary. *593 Probably the renting referred to the use of the telephone system of the city, or other facilities the board could obtain without buying. In any view, when we regard the broad authority conferred to purchase apparatus and equipment, the authority to rent alarm and fire apparatus is plainly non-exclusive of the right to purchase.
The contract being within the powers of the board, it was valid and there ought to be a remedy to enforce the obligation of it. We reject the proposition that if the contract was binding, then the only remedy to enforce it is the writ of mandamus, and think that writ will not run on the facts. The dispute is about whether the Board of Commissioners is bound by a contractual obligation, a question the plaintiff has the right to affirm and which the board may deny for various reasons — for example, that the signal boxes were not in compliance with the specifications of the contract, or have never been delivered or tendered, or have been paid for, or the obligation to take them has been released. The facts show neither a merely ministerial act for the board to perform, nor an obligation attended with circumstances which leave the board no discretion about performing it. On the contrary the facts show a controversy regarding the rights and obligations of the respective parties under the contract; a species of controversy lying beyond the scope of a mandamus proceeding. [19 Am. Eng. Ency. Law (2 Ed.), p. 742; State ex rel. v. County Court,
III. The principal position taken for plaintiff is that as the Board of Police of Kansas City is not a department of the city government, but is an agency or instrumentality of the State, established to assist in maintaining public order and security, the board must be treated as aQuasi-Corporation. quasi-corporation and capable of being sued as a corporation. The petition says the board is a quasi-public corporation, a term used to denote private incorporated companies with duties of a public nature, like railway companies, but the meaning is that the board is a public quasi-corporation like counties, school districts, etc., when they have not been endowed with full corporate capacity. [1 Beach on Pub. Corp., sec. 3.]
For defendant it is contended the Police Commissioners partake in no degree of the nature and powers of a corporation, and do not constitute one of a perfect or *595 of a quasi-character, but on the contrary are a group of officials, and hence no action will lie against the board as a distinct entity and in a name of its own, or in the names of the members sued in their capacity as officers. Even if the Police Commissioners compose a body corporate, as plaintiff insists, in the absence of a statute giving the body a distinctive name whereby it may sue and be sued, it does not follow, according to authorities we have found, that an action will lie against it by any name a suing plaintiff may choose to adopt for it, nor by any other name or style than the names of its members; nor does it follow, as is contended for the defendant, that if the board is not a corporate body, an action based on a valid contract made by it will not lie against the members in their own names but not in their personal capacity. It is accepted law that when public officers are entrusted with definite powers and duties, and in the course of their duties and acting within their powers, they give rise to legal rights in other persons, especially when such rights grow out of a contract, and no way exists to enforce them except by an action against the officers as such, an action will lie against them. This is a doctrine of the common law and statutes on the subject are mainly declaratory of the common law rule. [Rouse v. Eddy, 18 Johns. (N.Y.) 407; Silver v. Cummings, 7 Wend. 181; The Supervisor of Galway v. Stimson, 4 Hill (N.Y.) 136.] And the successors of the officers who entered into the contract may be sued on it. [Palmer v. Vandenbergh, 3 Wend. 193; Todd v. Birdsall, 1 Cowen, 260.]
IV. The difficulty of defining with precision aquasi-corporation has been noticed by both courts and commentators. In an opinion by Justice MILLER of the Supreme Court of the United States, it was said the meaning of the term was not clear; that it was a phrase applied to a body which exercised certain functions of a corporate character,Proper without having been created a corporation by anyDefendant. statute, general or special. [School Dist. v. Ins. Co., *596
In no decision examined by us during a long search for precedents have we found a statement of how many or exactly what corporate powers must be exercised by a set of officials to constitute them a body politic, when they are not so denominated by the statute which created them. We quote what was said on the subject in an opinion that was praised by an accurate commentator in the aforesaid note to Todd v. Birdsall for stating "clearly the principles upon which it may be determined in any particular instance that a body is a corporation though not declared to be so." The inquiry related to a levee district organized under the laws of California:
"A corporation, as defined by Section 283 of the Civil Code `is a creature of the law, having certain powers and duties of a natural person.' Under this broad definition, the levee district has the attributes of a corporation. It is `a creature of the law, and has certain duties of a natural person.' Through the board of supervisors, who are its managing agents, it may *597
make contracts, incur debts, employ servants and agents and perform many other acts which pertain to natural persons. It is also endowed with a corporate name, and has perpetual succession. Those are the principal attributes of a corporation, and though the statute does not in terms declare it to be a corporation, it will be sufficient if the intent clearly appears." [13 Am. Dec. l.c. 524; and also Dean v. Davis,
Dicta can be found which import that any set of officials invested with power to act as a unit, particularly in taking on contractual obligations, constitute such a corporation; but a close reading will discover often either an age-long usage to treat the body as a quasi-corporation or expressions in, or powers granted by, a statute which plainly denote the intent to incorporate. [Rouse et al. as Overseers of the Poor v. Moore et al. as such Overseers, 18 Johnson (N.Y.) 407; Winslow v. the Commissioners of Perquimans County,
In the North Carolina case the only point for decision was as to the proper form of action, the statute for the government of counties having expressly declared them to be bodies politic and suable "in the name of the Board of Commissioners." In Clarissey v. Fire Department (the authority mainly relied on by defendant in this case), we find that in the act creating the *598 Metropolitan Fire Department it had been given all the powers of a predecessor department, which had been declared "a body politic in fact and in name" and made capable of suing and being sued. The Kentucky case is more in point, but the real question in it was whether the board represented the State in such a way as to render a suit against the board one against the State itself — an inquiry the court answered in the negative by holding the board, in view of its powers, was an independent corporation; a conclusion dissented from by one judge on the ground that "there was nothing in the duties of the board which indicated that it was incorporated, or that it was to transact the business as an incorporated company."
We consider it an extravagant notion that every officer or body of officers vested with power to make contracts to a limited extent which are not binding on them personally, is, by that fact alone, made into a corporation. Such a doctrine would be in effect the investing of public officers with a corporate character regardless of the purpose of the Legislature in the matter. If a power is given to officials which can be exercised only by a corporation, as for example, to hold the title to real property in succession, such a grant may be taken to show a legislative intent to create a corporation sub modo. [The Conservators of River Tone v. Ash, 10 Barn. C. 349.] And from the perplexing decisions on the subject, it seems to us that the most influential circumstance whereby to determine whether or no public officials are quasi-corporations is that the law, either by immemorial usage or by the implications to be drawn from relevant enactments, has recognized them as such, without expressly declaring them to be; but many cases speak of a body expressly incorporated as a quasi-entity if it is not given the full powers of a municipal corporation.
In this country every corporation, whether of full powers or limited, must now emanate from the Legislature; *599 at any rate when it is of a variety not sanctioned by usage. Hence, the remark in Rouse v. Moore, supra, that overseers of the poor were town officers coeval with the settlement of the country.
No one will say Police Commissioners are bodies politic by old usage, and nothing can be pointed to in the various acts and statutes relating to the Kansas City Police Commissioners that indicates an intention on the part of the Legislature to erect them into a corporation except a power to make contracts within a small compass — a power not expressly conferred, but to be implied from the authority given to organize and equip the police system. The Commissioners are not authorized to use a seal; they are never spoken of as a corporation and in almost every mention of them are referred to in the plural number, and this has been true from the creation of the board in 1874; they have been given no distinctive name, certainly not the name of the Board of Police Commissioners, which is the name applied to the defendant in the present case. What the statutes say on the subject is, "There is hereby created and established in every such city a board of police to be called the police commissioners of such city." If any name is given to the board in the statute it is found in the expression "to be called the police commissioners" — words, which, far from indicating the intention to create a body politic, simply denote three officers.
Many boards and commissions for public purposes have been established in this State, and the manner in which this has been done and the different powers conferred, suggest that the Legislature has pursued a policy of selection in the matter of incorporating them. Some of them were created corporations with enumerated faculties. This was done in the following instances, and perhaps in others: The Prison Commission, composed of three members, declared a body corporate under the name and style of the "State Prison Board," with the right of suing and being sued, and to use a common seal. *600 [Laws 1917, p. 157.] Similar provisions were made regarding the Board of Agriculture (R.S. 1909, sec. 596); and in the case of the Missouri State Horticultural Society (R.S. 1909, sec. 614); in that of the Missouri State Poultry Association (R.S. 1909, sec. 663); in the case of school districts, whether common schools or city districts (R.S. 1909, secs. 10834, 10979); so of special road districts (R.S. 1909, sec. 10577; Amended Laws 1911, p. 370); so with the Industrial Home for Girls (R.S. 1909, sec. 1544); and with drainage districts (R.S. 1909, sec. 5499; Amended Laws 1911, pp. 205 et seq.); and "Public Reservations" (R.S. 1909, sec. 10257); and of townships (R.S. 1909, sec. 11657).
In some instances, without expressly declaring the particular body a corporation, the Legislature has conferred on it the power to sue and be sued, etc., by a certain name: An example is the charity board in some cities, which the statutes say shall be known "as the Charity Board of the City of ____," and have power to sue and be sued (R.S. 1909, sec. 1322). The various eleemosynary institutions of the State which are managed by boards are given a general power to maintain actions "in the name of the board of managers of such institution" (R.S. 1909, chap. 19, art. VI, sec. 1389). This provision applies to the twelve institutions named in said article. In addition to that general power to sue in the name of the board of managers, some of the boards are especially authorized to maintain actions for trespass to the property managed by them. This is true of the State Sanatorium (R.S. 1909, sec. 1462); School for the Blind (R.S. 1909, sec. 1476); School for the Deaf (R.S. 1909, sec. 1493); Missouri Training School for Boys (R.S. 1909, sec. 1537), and the Industrial Home for Negro Girls, the board of which possesses the power by virtue of a section making the laws applied to the other institutions apply to that one (R.S. 1909, sec. 1569.) The Public Service Commission of the State of Missouri is accorded the right to sue and to be sued, and to have a seal. (Laws 1913, p. 564). *601
But there are other boards and commissions which the Legislature has neither created corporations, nor declared capable of suing or being sued by a certain name, viz: State Board of Dental Examiners (R.S. 1909, sec. 5485); State Board of Health (R.S. 1909, secs. 6651 et seq.); County Boards of Health (R.S. 1909, secs. 6663 et seq); Barbers Board of Examiners, which is authorized to use a seal (R.S. 1909, sec. 1186); State Board of Education (R.S. 1909, chap. 106, art. 11); Banking Department (R.S. 1909, chap. 12, art. 1); State Board of Charities (R.S. 1909, chap. 19, art. 1); Board of County Visitors (R.S. 1909, secs. 1329 et seq.); State Board of Mediation and Arbitration (R.S. 1909, chap. 67, art. 3; Board of Pharmacy (R.S. 1909, chap. 42); Tax Commission — given a seal (Laws 1917, p. 542); State Board of Equalization (R.S. 1909, chap. 117, art. 4); County Boards of Equalization (R.S. 1909, chap. 117, art. 3); Boards of Police.
The title to whatever property may be acquired by the action of the Police Commissioners of Kansas City, does not appear to be vested in them as a body corporate, although they have the care and custody of it.
Another fact worthy of notice is that both the St. Louis and Kansas City Police Commissioners have sued and been sued often, and always by their individual names, but as a board. [Francis v. Blair,
A direct authority for the proposition that the Police Commissioners do not constitute a body politic *602
is the case of Brotherton v. Board of Police Commissioners of Baltimore,
In a New York case where officers and collective bodies not strictly corporations, but invested with some corporate powers, were conceded the right to sue in respect of matters committed to their charge, it was held the suit must be in the name of the officers and not in the name of the office, with the addition of the title of the office to show the capacity in which the defendant was sued. [Galway v. Stimson, 4 Hill, (N.Y.) 136.] In that case the officer was not named as plaintiff and the court said it had met with no precedent for such an action. There was a statute which prescribed the procedure, but the opinion appears to have treated the rule as one existing independently of the statute. Be that as it may, our conclusion is that, though the Board of Police in the matter of contracting for certain purposes, acts as an aggregate body and to that extent quasi, or as if it were a corporation, yet not having been endowed with a name or other corporate attributes, actions against the board should be instituted in the names of the members and in their official character.
The names of the Police Commissioners are mentioned in the petition both in the title and in the body, but not by way of making them parties, and said mention cannot be accepted as sufficient to make them parties and authorize them to be served with process, as they must be if parties. The board is treated as an entity *603
and as a single defendant, and therefore service of process on the three members was not necessary, but only on the chief officer. [Cloud v. Inhabitants of Pierce City,
V. The proposition that the Commissioners in so far represent the State that a suit against them is in effect one against the State, has not been presented nor considered; and weUltimate will only remark that the ultimate liability on theLiability. contract declared on is the city's liability, not the State's.
The judgment is affirmed. All concur.