Riley v. City of Kansas, 31 Mo. App. 439

31 Mo. App. 439 | Mo. Ct. App. | 1888

Philips, P. J.

The petition contains two counts. The first alleged that the plaintiff, in 1883, was appointed and employed by the board of police commissioners for the defendant city, as a policeman for the period of three years, at the stipulated sum of $72.50 per month; that he entered upon such service and so continued until the nineteenth day of May, 1885, when he was, without cause or trial, unlawfully discharged from his office and employment by said commissioners, and wrongfully deprived of the benefit of such compensation for the residue of the term of his appointment; wherefore he asked judgment, etc. The second count was indebitatus assumpsit, for three months ’ service rendered defendant by plaintiff as policeman.

The answer, after tendering the general issue, as to matters not admitted, pleaded that the authority and responsibility for such appointments and dismissals belonged exclusively to the board of police commissioners, and that the defendant was not liable therefor in a direct action. Judgment for plaintiff on both counts ; from which defendant has appealed.

I. The single question presented by this appeal is, whether or not the defendant city is liable in this form of action for the imputed acts and defaults of the board of police commissioners ? As to the second count, which as shown by the proofs was for nineteen days ’ pay due plaintiff at the time of his discharge, we are of opinion it is not maintainable. It was expressly held in Sanford v. City of Kansas, 69 Mo. 466, that a policeman conld not, without first obtaining from the board of police commissioners a warrant therefor on the city treasury, maintain an action against the city for his services. His remedy in such case is by mandamus to the board of police commissioners to compel the issuance of the proper warrant. We are bound by that decision.

II. While the precise question involved in the first count has not been passed upon by the Supreme Court, we are of opinion that the principle involved is covered by said decision and that of Flanagan v. City of Kansas, 69 Mo. 462. In the last-named case it was held, that under the act of the legislature (Sess. Acts 1874, p. 327) creating the board of police commissioners for Kansas City, the board, and not the city council, was invested with the power and duty of fixing and regulating the compensation of police officers. Sherwood, C. J., who delivered both opinions, said: “We are satisfied, upon examination, that the act establishing the board of police commissioners gave that board the exclusive control of the members of the police force.” In the Sanford ease he held the following language: “To the board of police commissioners belonged the exclusive control of all matters pertaining to the employment, pay, and regulation of the police force of the city. * * * As the law organizing the police board has confided to their special care the matters pertaining to the pay of policemen, and specified a particular way for them to be paid, we incline to the opinion that the method thus pointed out should be pursued; for the latter clause of section fourteen prohibits in unmistakable terms the mayor and council to appropriate and disburse money for the payment of the police - force, except as they are in that section authorized. We do not think it was the design of the legislature, after making such explicit provisions for the employment and payment of the police force, that those provisions should be wholly disregarded, and the city subjected to the annoyance and costs of suits as numerous as the policemen who choose to bring them.”

It is clearly manifest, to my mind, from the whole tenor and scope of the act creating the board of police commissioners, that it was the design of the legislature to make the board entirely independent, in their administrative capacity, of the control, interference, or authority of the city government. The familiar history of the popular demand, respecting the administration of police government in our metropolitan cities, leaves little room for doubt as to the intent and policy of the legislative scheme. The commissioners owe not their appointment to the city. They derive none of their powers from its charter. They receive their appointment and commission from the Governor of the state ; and are essentially officers of the state. Their powers and duties are all derived from and defined by the legislative act. These municipal communities are such important integral parts of the state as to make the administration of the police law among the local constituency of vast public importance; well justifying its commission to its own appointed board, wholly independent of the municipal authorities or responsibility.

The first section of the act, while recognizing the right of the city to make its own ordinances for the preservation of police order, expressly restrains the mayor and common.council to such ordinances as shall in “no manner conflict or interfere with the powers or the exercise of the powers of the board of police commissioners.”

The second section repeals and nullifies all the provisions of the city charter or any of its ordinances, which “ authorize the common council, the mayor and marshal, to appoint, pay and regulate the police of said city.”

Section six gives the sole power of appointment, management and dismissal, of the police force to the police commissioners.

Section ten gives power to the said board “to make and enforce all rules and regulations, not inconsistent with this act, as they may deem necessary for the appointment, employment, uniforming, discipline, trial and government of the police,” etc. And by section thirteen, it is declared that, after the passage of said act, and the first meeting of said board, “the whole of the existing police force in the City of Kansas, both officers and men, shall pass under the exclusive control and management of the said board, and be subject to no other control, and entitled to receive neither orders nor pay, except arrearages then due, from any other authority.” And, as if to leave no possible doubt as to what was intended, and to emphasize the complete divorcement of the police board from the city authorities, the section concludes with an absolute negation of the right or power of the mayor or common council, to appoint or dismiss, or in any manner employ or control the police force organized by the commissioners.

The fourteenth section then proceeds to point out the manner, of providing the funds to pay for the force. Without the action of the police board the city authorities have no power to appropriate a dollar on account of the appointments of the board.

It is needless to look to the language of courts in other jurisdictions, in passing on the liability of cities for injuries and other accountability consequent upon the omission of certain duties by commissioners appointed from without. This act is sui generis. Its purpose, language and affirmative provisions are such as to preclude the idea of a suit directly against the city for the imputed misconduct of the police commissioners. The power to employ and dismiss policemen is lodged with the commissioners, the officers of the state. The city has no voice in the matter. It can neither control nor make suggestions to the commissioners in such matter. The commissioners are the functionaries and agents of the state, and not of the city, in employing and discharging policemen. They are not accountable to the city for their action. The city is more the agent of the commissioners in enabling them to carry out the legislative powers. The commissioners employ, control, and fix the compensation of the policemen. It is the bounden duty of the city government to appropriate the necessary funds on the requisition of the police board to pay the policemen, and not otherwise ; and it would be compelled, at the relation of the police board, to proceed to make such appropriation. It can only pay upon the warrant of the board.

If the board of police commissioners, as alleged, wrongfully dismissed the plaintiff from his office, without cause and trial, he had a clear remedy by mandamus to compel his reinstatement. High on Extr. Rem., secs. 67, 68, 69.

The city being without power to pay the policemen without first having a warrant from the police commissioners this action must fail.

The other judges concurring,

the judgment of .the circuit court is reversed, and the petition dismissed.