*1 diction case paid by until fine Miles; and, said and costs be hereby all other respondents herein should be and are discharged day. without
All except Eager, J., sitting. concur, Ballard, In the of the Application Matter of Frank H. John W. Spink, B. Irvin Fane E. Kemp, mes Kerrigan, William Ja Constituting the Board of Police of Kansas City, Commissioners Missouri, and Acting for and as Said Board of Police Commissioners Relators, v. William E. f City, Missouri, Kemp, o Harry J. S. W. Benson, Davis, Robert Davis, Ilus Thomas Joseph J. M. O. Gavin, Gentry, Jackson, Nolan, Reed Don Cookingham, Respondents, Walter R. L. P. No. Scott, W. (2d) 44534 283 502. S. September 29, Banc,
Court en 1955. Filed, Rehearing Opinion 1955. Overruled Per Curiam November *3 Harry Murphy F. and Cornelius Roach III for relators. City Proctor, Counselor,
David M. John Cosgrove, City Associate J. Counselor, L. Parks, Counselor, respondents. and J. Assistant mus. [507] Relators HOLLINGSWORTH, as the members of the Board of Police Commissioners J.- Original proceeding *5 in manda- of City, Missouri, compel Mayor, to the Council seek City Manager of that of in excess appropriate said an amount to appropriated to meet the expenses of the Police Department for year beginning May the fiscal 1, 1954.
Section 84.730 provides: V.A.M.S., RSMo Commissioners], duty “It shall be the of board Police said [of in day prepare, January on the fifteenth of to year, of each money be writing, budget which will estimating sum of discharge necessary year, for next board to fiscal to enable said of hereby expenses the duties imposed upon and to meet the it, governing body police department, of such cities, which it * [*] * shall *. forthwith Said governing certify to the body of so hereby required amount appropriate cities is to the total hav- payable first after certified, out of the revenue of said cities ing on the necessary deducted the interest pay the amount to- lighting the necessary cities, of indebtedness said the amount sinking city, governing body any sum said required by of such cities be cities, [*] law [*] * to be except required to placed that to in no event the credit appropriate of shall in excess police year the use of an amount in fiscal board year.” of one-sixth of of such revenue fund The section petition alleged pursuant provisions said that $4,028,726 relators an respondents made and certified estimate to necessary police amount commissioners to enable board of department discharge its expenses duties meet council, sum, alleged, for the aforesaid fiscal said it was year, which appropriate provisions required virtue statute, of said was therein, but fixed because it is not amount of the maximum excess wit: sum, a lesser so to appropriate do did refused pur- issued $3,551,354. writ In an alternative amended return to our respond- Missouri, provisions suant §4, Art. Constitution V, one- alleged ents excess relators was the sum demanded 1,May beginning sixth of revenue fund for the likewise 1954; $3,551,354 appropriated that the sum of theretofore quashed. thereof, writ should excess and that the alternative Honorable appointed being joined, issues thus court this testimony F. to take Christian Stipp Commissioner ably has he report finding law, his of facts and conclusions *6 painstakingly parties and done. Both exceptions have filed to certain by Special conclusions of law reached Commissioner and to numer- findings ous his of to whether certain items of revenue a constitute of “the revenue fund” year, of said fiscal within the meaning (All statutory of references herein are to RSMo' V.A.M.S., unless indicated.) otherwise City a municipal corporation organized existing pursuant provisions special to the aof adopted by charter framed and people as authorized the State city manager Constitution. The is the chief administrative officer and the members of the council and mayor legislative body city. constitute of The Kansas police department operates under the exclusive direction and control the board of commissioners which was created state statute and whose appointed by members are governor. 84.350-84.860. §§ provisions Pursuant provision state charter law, direction, departments city the various government the police city department submitted to manager budget requests their year began city the fiscal May 1, 1954-1955 which on 1954. man- The ager prepared budget the annual for the city for that in which he estimated the revenues which would be received and recommended the appropriations budget made. relators The had certified $4,028,726, city manager but the an appropriation recommended $3,551,354. amount, with latter budget, subsequently approved appropriation council and the made. preparation
In the budget, anticipated revenue was allocated treasury to various funds in the as follows: Allocation Source Revenue Amount Fund Levy 1. General Property Tax
(10.39) General $7,911,021 Levy Property 2. General Tax
(4.61) General Debt 3,505,746
Interest 131,260 Park Park 3. Tax Levies East 197,220
West Park Cigarette 4. Stamp General Taxes 950.000 105,556 East Park 5. Gasoline Motor Fuel 1,920,000
Taxes Street 6. Vehicle Licenses General 22,500 513,615
East Park 213,885 Park West Parking 7. Receipts Meter General 115.000 4,500 8. Taxicab Driver’s Licenses General 9.Revenue from Other Street 42,000
Uses General $ Beverage Licenses General 10. Alcoholic 11. Business, Professional and
Occupational Licenses General 1,658,420
Bast Park City 12. Kansas Power and Light Tax Receipts Gross General 1,540,000 ' Company 13. Gas Service Gross
Receipts Tax General 786,365 Transportation 14. Public Com-
pany Licenses General 122,000 —Bus East Park 40,665 Í5. Transportation Public Com- pany Car Licenses General 22,000 —Street
16. Company Steam License General 58.000 Telegraph Company 17. Fran-
chise Taxes General 1,000 18. Natural Gas Company Gross
Receipts Tax 8,500 General Telephone 19. Company Gross Receipts Tax General 912.500 20. Dog Licenses General 42.000 Municipal
21. Court Fines and
Forfeitures General 685,000 22. Traffic Bureau Fines General Forfeitures 355.100
23. Circuit Court Fines Forfeitures General 35.000 City 24. Hall Rents and Con-
cessions General 37,970 Municipal 25. Auditorium Re- ceipts General 258.100
26. Net Rentals Veteran’s Housing Project General Municipal 27. and Platte County Airport Receipts 443,095 General General Airport Receipts
28. Grandview Property 29. Park Rentals and 30,750
Concessions East Park West Park
30. Rental of Miscellaneous Property 50,120 General Owned 16,950 31. Rentals Concessions General Allocation Amount Revenue Source Fund Earnings 80,000 General $ 32.Interest
General Debt 80,000 and Interest Interest on Bonds 33. Accrued General Debt
Sold 5,000
and. Interest 175,000 Investments Water Interest on 34. Special Sewer 17,157 Assessment Street Avenue 5,297 Spec. Assessment Cumulative Insur- 2,500 ance Reserve Assess- Special 35.Interest on Sewer
ments 22,000 Assessment *8 Spec. and Avenue Street 7,000 Assessment ' 107,500 Merchants’ Rentals Public Market 36. Produce 7,000 Public Market 37. Stall Fees 6,000 Public Market 38. Reservation Fees [511] Rail-
39. Southern way Right-of-Way Ease- 8,000 Public ment Market 40. Market Miscellaneous » Public Market
Revenue 2,500 Market 41. Service Refunds Public 4,200 Market Parking 42. Rentals Public Lot Weighing 43. Fees—Public 6,500 Public Market
Scales #1 Surplus Distri- 44. Commodities 2,000 Fees Public Market
bution Pay Telephone 45. Rental from Market Public
Stations Service 46. General Government 6,715
Charges General Back- Repair and 47. Street Cut 103,000 General fill Fees 1,740 General Inspection Fees 48. Gas Cut 49. Service Fees— Projects
Assessment 12,000 General (Administration) -Special 50. Service Fees— Projects
Assessment 72,000 General (Engineering) Wel- and Public 51. Recreation 11,900 General Charges fare 68,270 East Park 52. Recreation Fees 2,210 Park West Safety Buildings 53. Public — Division Inspection 208,490 General Fees Safety 54. Public —Smoke 31,500 General Regulation Division Safety Public 55. —Tow-in 100,000 General Charges Storage 91,055 General Charges Health 56. Public 234,870 General Charges Hospital 57. 3,500 Park East Fees Repair 58. Boulevard Cut 4,600 Park West Permits and Ceme- 59. Burial Park West tary Services
60. Sale Fire and Extended Insurance Cumulative Coverage Insurance Reserve 35.000 363,600 General Municipal Revenue 61. Farm 2,500 Water 62. Farm Rentals 5,463,903 Water 63. Sale Water Merchandising, Jobbing 64. Water
Contracting 65. Miscellaneous Enter- Public *9 Water
prise Revenue 66. Rental of Miscellaneous’ Water Buildings and Lots
67. Grant for Tuberculosis State 210,000 General
Hospital 68. Federal Reimbursement 299,000 General Equipment Civil Defense 69. Land Rede- Clearance for 15,150 Authority General velopment Payments 70. in Lieu of Federal 3,520 General Taxes Starlight 71. Contribution 15,000 General Theater Association <378
Allocation Fund. Amount Source Revenue' 72. Sale of Real and Per- General 16,000 Property
sonal East Park 4,6t>0 Park West 1,500 73. Miscellaneous Non-Revenue General 11,750
Receipts East Park Working Capital 481,049 74. Sale of Stores
Public Works .Working Capital 240,455 Working Capital 38,558 Postage 75. Sale of Capital Working' 6,682 76. Service Storerooms . - , Working Capital 6,730 Equipment Capitalized 77. . 78. Recoveries on Insurance Public Works
Claims
Working Capital 79. Damage Recoveries on Public Works
Claims Capital
Working 80. Public Works Equipment Rentals
Working Capital 308,650 81. Public Works Receipts Intra-Fund
Working Capital 93,070 225,000 82. Water Reimbursable Services Capital 69,381 Working Public Works n Working 40,260 Capital Revolv- Insurance 70,000 ing* 145,500 Sewer Assessment 83.Collections from Assessments Avenue Street and 29,000 Special Assessment 762,340 84.Prior General Year’s Revenue 49,485 Park West General Debt 100,000 and Interest 35,249 Water Repair Street n ' 27,353 Maintenance Re- Insurance *10 49,462 volving 379 system accounting' of Kansas is set on a “fund up The fiscal through many are accounted for Income disbursements basis”. may “accounts”, “funds” and each “fund” embrace several different managerial ready being devices for determination of the latter collec- designated There is tions disbursements. no “fund” as the ‘‘ ”. revenue “general meaning The of the term as used in revenue”, § 84.730, importance. a matter of first becomes
“By revenue, meaning its by whether measured or the legal is meant current income of the state from lexicographer, subject appropriation public whatsoever source derived which may current income be derived from various uses. This sources, derived, attest, but, no matter what source our numerous statutes paid it becomes revenue or state required treasury, if to be into ’’ * * Regents, money; Thompson *. State ex rel. v. Board of 305 Mo. 57, McKinley Pub. v. 700. See also State ex rel. Co. 698, S.W. 33, 1007, 1011. It clear S.W. would seem Hackmann, Mo. “general the term revenue” would mean all current therefore that city, subject appropriation derived, income of the however which is general public uses, distinguished special uses. by May is: principal City, One of the issues in the case authority by ordinance, con of its charter or devote funds otherwise deprive stituting general special uses, in manner revenue to reckoning the state of the benefit thereof in “one-sixth of ascertaining purpose for the the extent of fund” liability ? §
Obviously, by by may devote a ordinance, if the its charter or city, ordinarily considered portion substantial of what would be revenue to a special use process “earmarking” its use “earmarked” special thereby portion for a so purpose and take may category general revenue, starve its out of the then the ineffective- operated police department state utter controlled into assiduously has the state ness and create a situation which heretofore its prevent by undertaken to such as 84.730 and forerunners. statutes 67, seq., 175 Reynolds Jost, 265 et S.W. 51, See State ex rel. v. Mo. Smith, 1019, Mo. 49 S.W.2d seq.; et State ex Field rel. v.
74, 76, 78; 1939, pp. 558, 559; RSMo Laws 1939. the term Special came to the conclusion Commissioner “all and included
“general fund”, meant 84.730, as used required to derived, which is not city, current revenue of the however by constitutional, or charter special purpose statutory, be devoted to a provision obligations or which are authorized covenants bond ours.) (Emphasis or charter.” constitution, statutes reach- Respondents upon Special Commissioner in rest the labors of the merely ing conclusion, asserting that he correct so above citing Commissioner upon the eases which the holding, *11 380 conclusion, parte
based his to wit: Ex Shreeve, Siemens v. Mo. 736, 317 416; 296 Carpenter Louis, State ex rel. Mo. 2 870, S.W. v. St. 318 S.W. 713; 2d 675, Morrow v. 186 572; Mo. 85 Kansas City, S.W. Kansas City Frogge, v. City, 352 Mo. 176 233, 498; S.W. 2d Turner v. Kansas 354 857, 191 Mo. 2d 612, City Threshing S.W. and Kansas v. J. I. Case Co., Machine 913, disagree. 337 Mo. vigorously 87 SW. 2d Kelators 195. They insist that Assembly phrase the General used the § “general designation revenue fund’1 as the collective all of income, subject of a current derived, ap however propriation public excludmg only that use, income which %<,ses appropriable solely particular public specific under the authority constitutional or statutory provisions explicitly requiring of special purposes paid special that such income be devoted be into(cid:127) or funds. creating police The statutes the board of of Kansas commissioners City police department defining respective and the their thereof, duties, powers responsibilities, and and mainte providing for their 84.350-84.860, expressly jurisdiction the Kansas nance, retain of § § City system agency Alarm police as an American Fire of state. 114, Commissioners, 581, Board of 227 S. W. Co. v. Police 285 Mo. Legislature therefore, hardly 116-117 It conceivable the is, [1-3]. agency city, chargeable a with could have intended that the state man police department the maintenance of the state controlled 84.780, have prescribed 84.730 and should at the same time ner § § legislative power municipal corporation as a defeat the mandate through policy either “earmarking”, of the State of Missouri a would ordinance, portions charter or of its revenue that otherwise This “general meaning of constitute revenue” within the § 84.730. lawfully may purposes, not, for its not mean that the own does subject it fit or manner sees its funds or allocate them in divide long itas public purposes, so particular its revenue funds Corp., Mun. 64 contrary C.J.S., its charter. does not do so to statute or does, city may not, mean the 1884, pp. 443-444. think it we But make such authority by ordinance, funds solely of its charter or concluding, reaffirm we In so state under unavailable consistently in this followed long since announced principle state. what is now not be out of the state as declared v. or in conflict with the Co., Kansas Mason, 153 Mo. province 140 subject Mo. Art. to the Constitution 458, harmony with the could 'VI, 19, 41 S.W. 23, 35, 60, 54 S.W. for the only frame and law of controlling legislation or 943, Constitution people 945-947; nor at adopt large, Kansas attempt to laws of 524, laws of the Missouri. a charter 526, may State state, the state 534. it change v. Marsh Oil City ‘‘ Its state out consistent ex charter " * nor rel. “The law harmony policy Hawes invade must with See
381 establishing the police system commissioners City] [of police is an policy under them evidence state with of one of principal reference to its cannot be cities by a subverted local charter.” State ex rel. Goodnow v. Police Com Mo.App. 80 missioners, 206, 109, 219. See same Mo. also 184 133- case, 134, 220; City, S.W. Coleman Kansas 150, 161, v. Mo.
S.W. 2d 77.
In ex rel. Carpenter State v. Louis, 2d, 713, St. 318 Mo. S.W. *12 construing we said: 721, police “The cases the in point. laws are The authority provide by general state has to law for the of establishment a metropolitan city operating special charter, force ain under a * # * * and compel city by the it to maintain In ex taxation. State Mason, rel. v. 527, 54 Mo. S.W. it was held St. that the of compelled, by Louis could be pay expense to the mandamus the of police system by of that city, Legislature established an act of the (Laws 446). 1860-61, p. significant It is original legislative that the supplanted municipal act system prior the which existed to that had (54 524). time. opinion Judge Id. loe. cit. 32 by S.W. The written says Gantt, referring cases, (loc.cit. (54 to earlier 530)) S.W. : ‘The Legislature power necessary provide agencies perform to the to * * * high the functions the preservation peace, of state the oE etc., impose duty paying locality and to the therefor on the * * * agencies created, fully firmly said were estab ’ ” lished. by by Special The cited upon cases Commissioner relied respondents do against not militate the doctrine above announced’. Each of recognizes them and holds inviolable the rule that the charter city (organized of a City) isas will Kansas subordinate Assembly governmental General policy insofar as it as relates to distinguished from municipal matters of local concern.
It follows that we must and contention and do sustain relators’ general hold special pur that revenue of which is devoted to poses special city’s or allocated into funds virtue charter (and ordinances) reckoning general included one-sixth 84.730, provisions fund under unless such charter or ordi § placing special special nances funds purpose to a or funds into pursuant clearly implied were enacted or express or constitutional statutory authority.
In light of the conclusion above we now consider reached, specific Special items which relators er- contend the Commissioner roneously from the 84.730. under excluded § 3, designated Special report Commissioner’s “Special Levies”, Park aggregates $328,480. Special Tax Com Legislature missioner held that these levies were authorized 90.010 and were not allocable to the revenue fund. Section pro- 90.010 a tax, does authorize “any city” levy 2-mill park be known fund”.
ceeds of which “shall Relators concede Item 3 consists of a 2-mill provided that to the extent tax as in § special a fund expressly constitutes authorized statute allocable to revenue. Said however, is not item is, and aggregate levy $272,370 of a a amounting tax and a 2%-mill levy” “ten-eent-per-front-foot amounting tax $56,110, for which statutory authority there is no latter tax whatever. Relators therefore all of levy, that said sum over and above a 2-mill insist to wit: one- $272,370 ($54,474), front-footage fifth of and the tax in the sum of $56,110, must be allocated to $110,584, Respond- total revenue. say although Special ents that correctly Commissioner found that general revenue, this item was not allocable to he did an so under premise 90.010, erroneous upon which the Commissioner finding, applicable based his is not City, citing to Kansas City ex North Park 845; rel. Dist. v. 127 Mo. Searritt, S/W. and that under the Commissioner’s the charter of Kansas authorizes ruling to the effect that charter tax of 2% mills; legislative authorization authority, was tantamount to properly he held g'eneral such fund not to constitute meaning revenue within the III, Section levy Article charter authorizes the aof *13 upon estate, tax all the real improvements, of exclusive of 2%-mill each park improvement for district and maintenance of the boule- system jurisdiction vard under the of the Board Park of Commis- sioners. Section 62 authorizes a per maintenance tax ten cents of abutting front foot of system. land said apparent boulevard It is that Item 3 was obtained virtue of these two provisions. charter If we accept respondents’ were to contention that 90.010 did not § apply to here, situation then we should hold that all of the 21/2-mill tax ($272,370) general is allocable to because of our con revenue, clusion provisions that charter for earmarking general of revenue special purposes in the express absence of constitutional statu or tory authorization therefor do not authorize the diversion general revenue funds special to in 84.730 into funds referred so § to defeat the purpose However, that, thereof. we are convinced despite respondents’ assertion, legislative does announce a § policy impliedly authorizes the diversion of a 2-mill on the tax aforesaid park real estate for extent, maintenance. To that Item 3 is not general allocable portion revenue. The of Item realized from an levy mill, excessive of one-half general must be allocated $54,474, revenue. But, though even front-footage statutory tax is without sanction, we are convinced its purpose nature and is such it cannot be general considered as revenue 84.730. It a local is § limited against assessment real abutting system estate the boulevard over and above regular boulevard maintenance tax mills levied of 2% against all real park (These estate in districts. respective the two two City. Kansas 56, whole of See include the Art. Ill, § districts Presumably, a special such City Charter.) assessment against is made theory special property on the benefits abutting accrue thereto because property system to the proximity of boulevard so, of if and, lawfully general a purpose. not be diverted to it could Such a tax is earmarked, that has been g'eneral not violation of the hereinabove stated. principle 5, designated as
Item “Gasoline and Motor Fuel Taxes”, $1,920,000, was amount of levied under provisions of § VIII, provides Art. of which charter, that all from taxes sale n gasoline or other motor fuel shall be appropriated of for street payment of principal maintenance or interest on bonds purpose. for such Concededly, issued there is no constitutional or authority authorizing statutory it to be appropriated. so The record is clear, appear but that of these funds the sum $162,761 .does payment is general obligated obligation to the city, bonds of the concede, relators is amount, deductible $1,920,000, the total of leaving $1,757,239 balance allocable to revenue under 84.730. designated Licenses”, “Vehicle $750,000. amounts to Ill, of Section Art. the charter appropriation authorizes the all taxes, except vehicle license thereof for pension funds, firemen’s 3% boulevards, the maintenance of parks, application etc. ($22,500) pension
the aforesaid given firemen’s is funds ex 3% press legislative approval 86.657, as a consequence of which $22,500 properly said excluded However, legislative
fund. there nois authorization for the diversion funds, $727,500, portion balance of said to wit: of said sum must be included in revenue under 45, designated through Items 36 as “Public amount Market”, (This $45,407 $144,550. does not include allocated public market fund, fund from debt and interest and with which we are not here operation'of concerned.) public markets The income paid over ($144,550) realized from treasurer *14 city, pursuant authority and The annual current revenue. to itsof charter, hypothecating has issued revenue bonds this income. But no any by city part of out owed people such income arises debt the to from whom the income is derived. n city iduty Section 82.420 the statutes makes it the to estab- city market, give Legislature city not lish a but the has seen fit the to hypothecating to issue bonds the income there- authorization revenue Legislature city from. the the Relators concede had authorized' payment to -pledge public markets the of revenue its income from acquisition parking bonds,' city in the 'as it has authorized the do a 71.360, be confronted with different facilities we woiild then under'§ though authorizes the issuance of the charter situation. Even yet bonds, cannot against' such authorization be asserted as the We through totalling hold that Items 36 45, state under § general be allocated to revenue. $144,550,must Payments 70, designated Item as “Federal in Lieu of Taxes”, $3,520. paid city by This is income to the the amounts to Federal Housing arrange in lieu taxes a Administration contractual administration. It between the and the was allocated ment general to the Special respondents, fund but Commissioner held that it fund, general general revenue be allocated to the and should debt park in the proportion interest fund and the east and west funds by the Commissioner. The allotment property taxes were allocated computed by portion item, its of this as thus general revenue of $2,045. contend im Commissioner, Relators that Item is not was any commingled pressed trust, general was with with revenues and that proper to its the decision of the Commissioner as allocation has no parties, any relation contention of the nor to evidence intro money agree While We must with relators. received duced. Housing taxes, Administration is in lieu of more or properly, compensation for the loss of not revenue perhaps, taxes, impressed specific and it is not with the uses to derived taxes It general property taxes must be allocated. follows that the which $3,520 be allocated to the whole said item of should fund. designated Revenue”, “Prior Years’ was estimated $1,023,889. January This sum
as of to amount to estimated City’s budget in accordance city in its allocated with was Fund, $762,340; General as follows: provisions charter aforesaid $49',485; Park $100,000; Fund, West Fund, General Debt and Interest Fund, $27,353; Maintenance Fund, $35,249; Repair and Water Street $49,462. (Concededly, Revolving for reasons not Fund, and Insurance Fund, General Debt Interest portion no pertinent here, Revolving Fund, allocable to the Insurance Fund Water revenue.) or 84: said of Item “Item Commissioner during 1954-1955 be received represents revenue to years (1) revenue was includes which prior from activities of expended, (2) prior appropriated years in years in prior excess of the revenues revenues received which were subject appropriation revenue is expected to be received. This it was allocated. The revenue to which various funds use ($762,340) is allocated city.” fund of the legis- is no constitutional or as there contend that inasmuch Relators $49,485 allocated to the West the sum of lative authorization therefor Repair $27,353 the Street allocated to sum of Park Fund and aforesaid and added included Fund should Maintenance *15 $762,340, sum of hereinabove allocated Commissioner to the fund. revenue Respondents “Only contend: of $270,000: definitely this amount is appropriable purposes. years In prior state the total revenue was among Department divided the Police City Departments. Savings were made in some of the departments aggregating
$141,500.00; is, money appropriated that all of the to them was not expended. The' savings amount of these was carried into the forward year in question. Since it is a of the total from revenues which the Police Department received lawful its share it not should again be included in the fund appropriable to the Department. Police City doubly If were taxed, included the would be property and the of City and its citizens would process'of be taken due in' without law of violation the 14th Amendment of the Constitution of United States.
“$350,000 represents of the amount in total an excess in collection from the amount of revenue estimated to in be collectible the fiscal 1953-1954. This is from collection which we sources regard as local in Auditorium, etc., character such as the Hall, discussed hereafter under VI. in Point Should our contention this regard $350,000 be $154,454 sustained as be this well as the should excluded appropriations purposes.” for state
Respondents’ objection $350,000 to the of 84 be- allowance of Item allegedly portion cause activities of said item is derived from arising in character”, .distinguished “local from activities out adversely power, the exercise will be hereinafter ruled respondents fully for reasons there more stated.
Respondents authority support cite in their no contention surplus liability if such reckoning is included in thereby would be city’s property thus be doubly taxed, would taken Fourteenth process without due in law violation allocation Amendment States. The of the Constitution of the United ’ surplus years prior of this to the revenue city’s liability does determining under 84.730' the extent § ‘‘ in the not amount taxation. taxation to double To constitute double same upon the imposed prohibited sense the second tax must during government property for the state purpose, same the same or * * Taxation, ours.) C.J., taxing period (Emphasis the same employed year”, p. “general 137. fund of such § statute, is made 84.730, res, nothing that, is nor less than a more worthy year. It city’s liability for that computing the basis 84.780, provides that the statutes, of note that another section “out city’s liability payable as1determined purposes (cid:127)moneys specific city treasury appropriated indebtedness, 84.730”, interest on above enumerated section to wit: lighting sinking fund. costs and established
386 as municipality agency state,
Furthermore; when a acts as an of the maintaining’ force, its federal constitutional City does Kansas State of against the state. of Trenton v. apply do restraints 534; City Oklahoma 262 43 of Tulsa v. U.S. S.Ct. Jersey, New 4 rel. Hawes Co., [4-7], F. 2d See also ex State Gas Natural seep, seep 532 et 23, Mo. 52 et S.W. Mason, v. must be sustained. The sum that relators’ contention It follows Fund surplus the Park of the aforesaid to West allocated out $49,485, may proceeds ten any portion represent from the (less thereof boulevard-system), front-footage abutting properties the tax on cent revenue, sum general is for the reason said allocated to should be and accruing to and received and above the total amount surplus over is the city 90.010, from the 2-mill tax authorized which the authority statutory city’s to earmark funds limit the Repair allocated the park purposes; $27,353, sum of Street the Fund, should be and is allocated and Maintenance authority legislative for the no whatever for the reason that there is Repair and Maintenance allocation revenue to the Street added fully was These Fund; all as more hereinabove discussed. sums total of $762,340 $839,178 heretofore (less any proceeds allocated from the front-footage tax). make a there budgeted surplus above referred to, In addition to the 1,954-1955 hands surplus during year unappropriated on was fiscal treasury budget upon which city is not reflected in in’the which liability relators reckoned, and city’s under was reckoning. must be in such insist included subsequent and sub- stipulation argument In a filed in this court (as cause, this that in dis- mission of it is shown and admitted fact tinguished the fiscal budget) from the estimate in the there was for treasury year “unappropriated of 1954-1955 surplus” under the follows: provisions, allocated aforesaid charter Park Fund, $1,666,971; Bast $125,309; General West Park Fund, (cid:127) $237,052 and Fund, $88,458; Repair Fund, Street Maintenance $292,494. $1,941,042 Total, $2,410,284. total,’ Market Of this Fund, actually fiscal appropriated expended to the end prior year. ' Homer, At hearing Commissioner, Porter before Mr. At the City, Budget Director of Research of testified: its all of beginning not'appropriate does year, fiscal council rating if it unappropriated city has a better’credit because the surplus, appropriated has financial generally thereafter reserves. But it regular and when yearly course. are on a basis Appropriations made saving’s prior from appropriations and income under-estimated they are surplus'fund unappropriated collections have been put an into for which subject purposes appropriation as to without reservation they some may spent. police department has In past, received surplus funds, not on but appropriations basis of one-sixth appropriation necessary If believed an thereof. the council for the money made the police department, it available out of unappropriated surplus.
We think it clear that the actual amount of such funds available to any during (less moneys accruing from the front-footage than priorly thereof, rather tax), estimated amount current the purpose reckoning be considered revenue for should city’s liability revenue”, stated, “Current means income from that is at currently source or will be hand and avail- *17 public for Thompson able use. State ex rel. v. Board of 305 Regents, 57, 698, Greenhalgh Woolworth, 264 700. See Mo. S.W. v. 361 Pa. also 543, 64 [6]; A. 2d 664 Public Market 659, Co. of Portland v. 522, P.
Portland, unappropriated Ore. 2d 643-645. 624, As surpluses treasury any charge, came into the or became freed of trust pledge special during or year, they to- the fiscal became available use appropriation general for and were to such appropriated public use as the council decided.
Section city’s liability not fix 84.730-does the the at one-sixth basis of the anticipated general year, or the levied revenue of the but fiscal general year”. at “one-sixth of the revenue of such There can be fund gainsaying year” “general no the fact that the fund such revenue (1) general up made and in is consists of revenue funds on hand the city’s treasury general year” at beginning plus (2) the of “such becoming currently during appropriation “such available for year”. portion unappropriated surpluses Therefore, general city’s “general allocable to revenue became a year May must beginning 1, revenue fund” for fiscal be the reckoning city’s liability Indeed., included we in the 84.730'. § only respondents they not otherwise; do understand seem to contend differ surpluses with as to of such allocable portions to relators what are general deprive to revenue. To hold enable the otherwise would underestimating department deliberately or by the its needs year’s revenue, also over-appropriating and thus each available resulting thy bringing “both have cake eat it” thereafter surplus liability under treasury funds back into its balance without Park Bast Park The total of all Funds, surplus Street Repair funds in the General Maintenance Fund, West Fund and ,the this $2,410,284. Of Fund, stipulation, Market as shown (the por- $839,178 in allocated priorly opinion amount we have this fund, leaving general initially estimated) to the tion thereof actually re- (the portion $1,571,106 balance of consideration the is devoted none of amount), ceived addition to estimated special fund, constitutionally legislatively authorized any or which, therefore, is allocable to the all of revenue fund under ' tax). front-footage from (except proceeds exception final $544,300 ap Relators’ relates to an item of January (Exhibit 2) estimate of revenues pearing in of the General Fund,- the credit which relators contend should (the revenue fund under 84.730: It allocated item Revolving $544,300) was transferred to the General Fund Fund. The Improvement Special Commissioner did include Public not making computations city’s liability his for the he reason, represent it did not revenue received but was concluded, accounting pursuant transferred from an amount another fund an city. respondents’ The item practice of the brief does mention the all. at testimony Revolving Improve- of Mr. Homer was: The Public largely maintained
ment Fund established 1926 and was totalling throughout years by Fund, from General contributions $2,000,000, These through ending 1953-1954. in excess of among heavy equip- purchase, funds were used for the other things, depots, or the use of ment as bulldozers or structures, such seems, departments. portions funds, plus, it various Unused of such using charges paid equipment by departments certain rental on the it, returned to would be fund. Refunds to through $809,857. contri- The 1954-1955 1953-1954totalled *18 Fund, Revolving nearly Public:Improvement exhaust the bution will amount-of by another 'The function has been taken over fund. whose could,use is not a normal occurrence. The large, transfer council the part Revolving Improvement any of the Public Fund that comes all or any general purpose. for into the General Fund back money fact the coming that the amount of back into The mere during Revolving Improvement from the Public General Fund Fund unusually large of is and cannot 1954-1955- does not the might unjus.tly police as the a “windfall” such enrich amount to By the,city. beyond expense estimated at the department its needs of de- 84.730; department limited in its express provisions of the is the necessary money be the next-fiscal a “sum of which will for mands to have police board presume the members of the year.” We must may And, too, although the oaths of office. complied their with as not any involved challenge department’s item of the estimate here therefore, no is, by law, has not done There being so. authorized that were funds can see no distinction between an here. We issue Improvement the General Revolving Public Fund to from the returned We Fund. surplus goes back to the General that and other Fund the $544,300 be of must allocated to said item hold fund under Special respondents’ objections report of We now consider Commissioner. erred
Respondents first insist that the Commissioner obligations, excluding lighting, sinking cost of street fund “not security), pensions, (social firemen’s FICA contributions police and contingent from the portion of the fund of election and the costs ’’ purposes. appropriable held to be for state revenues police de- requires appropriation that the for Section having city, after first “payable be out of the revenue” of the partment deducted debtedness, the amount amount necessary necessary lighting costs, to pay the. interest any sum re- on the in- sinking fund. This does not quired placed be to the credit of the to depart- upkeep police mean revenues available that the required lighting pay the amount interest, ment be diminished sinking placed in the total of or sums unless the funds, costs to. defray costs and the is both maintenance funds insufficient specific purpose in the items statute. effect mentioned .and lighting costs merely give charges, street provision above is interest Obviously, this sinking priority payment. funds allowance only pro- provision can matter concern if and insufficient be a when pay both made or are insufficient revenues with which vision is there preferred aforesaid items upkeep police department of-the The con- issue on that score. city’s-upkeep. of the There is no here tention overruled. “Municipal and designated report Iiem in the Rlatte $443,095. Of this item County Airport Receipts”, amounts to ‘‘ city. It income to the This revenue is
Special Commissioner said: It is charter. required placed to be in the the- * * * ais required special purpose. This be devoted to city.” discloses The evidence general revenue fund of the of the authorization, July constitutional 1954 the city, of revenue bonds. pledged receipts payment said em- Constitution, say.: Respondents Article “Section VI the revenues pledge powers airport revenue bonds to issue bonds, City’s security All of the revenues airport for the * * * in the nature pledged are airport pledged. Revenues so are -so Fourteenth They protection of the a trust fund. fall within the ’ ’’ brief Relators States. Amendment of Constitution of United by constitu- says authorized “airport *19 revenues would have been Const, to a 27, Mo.) be devoted (Art. VI, of provision tional § May 1, hypothecated prior to public they -had been particular if use * * July hypothecated until 1954, *.. were not so But these revenues allocated income orginally commingled other with 1954, of and were city’s Fund.” to the General prior funds, city unpledged were It .is obvious that needs to the its police the date the board of commissioners certified 1954) (May 1, fiscal prior beginning to the council and city’s reckoning general revenue in
cannot be excluded from 390
liability Reynolds 84.730. In ex rel. Jost, 51, State v. § 265 Mo. 85, 598, say 175 S.W. this court said: “We 591, only can to those City points way. of Kansas that the requires officers law to them the It commissioners to make their estimate and demand at the beginning your year. you If that demand is within the law, position in requires are then to meet it. At the time the law it to be you you made, have before the whole loaf to be cut and distrib- says that, uted. The law sovereign you at the instance of the state, must cut a certain police protection your slice of that loaf for your citizens and the citizens of the other You then had it state. within power one, go to meet the demands If law. the law is a harsh ’’ Legislature. 2d, designated
Item Hall “City Concessions”, Rents and $37,970; 25, designated amounts to Item “Municipal Auditorium Receipts”, $258,100; 26, designated amounts to Item Rentals as “Net from Housing Project”, $75,000; 28, desig Veteran’s amounts to 1‘ Airport nated as Grandview The Receipts”, $670. amounts to Commissioner found each of these items constituted city, required by fund, placed the charter in was allocable to revenue funds under 84.730. § Respondents challenge finding do that these Commissioner’s city’s items were coming treasury required into the and were by its charter however that each and all of said items are local in character and to be placed the General Fund. They do contend exempt appropriation citing support purposes, for state there of City : State ex Field, 802; rel. v. 99 Mo. S.W. Kansas Kansas 352, 12 City 845; ex 642, rel. North Park Dist. 127 29 v. Mo. S.W. Scarritt, 458, 943; v. Marsh In re East Oil Mo. S.W. Co., Drainage Bottoms District, 577, 89; & State Levee 305 Mo. 259 S.W. 1016; C.J.S., ex Gordon, Gass v. Mo. Mun. 394, rel. 181 S.W. Corp., Corpora p. 191, p. 350; MeQuillin Municipal on 339, to § tions, 2, p. 4.85, Vol. seq. 4.89 et §§ carefully point.
We is in have read each of the above cases. None pro- first three a hold that where a charter code contains cedure for legislatively granted power the exercise its of eminent domain, statutory provi- code shall over precedence take Bast Bot- relating subject sions In re to the same matter. The case of Drainage District, toms & that the establishment Levee holds supra, rel. ex municipal sewer districts concern. State was a matter of local or mean- Gordon, case, supra, long Gass with v. and involved deals in Laws ing of set forth applied a school law word “revenue” as any of these p. 89, a word Respondents 1. do not refer us to and, after care- involved light upon eases that sheds here issues MeQuillin is not ful we none. The citation search, have found helpful respondents.
391 adequate system an in Kansas proper maintenance of The Reynolds v. City a matter of'state concern. State ex rel. Jost, 265 is 67, 175 City Madison, 593. also Van v. 51, S.W. See Gilder 591, Mo. 25, 244, The p. 267 105 A.L.R. and ann. at 58,
222 Wis. N.W. 259. subject municipality of a such as are such fiscal affairs to necessary proper as legislative control to enforcement of matters is p. Home general Corp., concern. 62 Mun. 352. C.J.S., 193, state § provisions prevent legislature “do not from constitutional rule duty municipality a a on which will result in creation of imposing imposed duty a where the or debt debt to be met local taxation is performance a corporate local or but arises from the purpose for governmental corporation performs in its municipal function 194, p. 62 agency C.J.S., Corp., an state.” Mun. capacity as § Mason, 23, 524, 153 54 S.W. State ex rel. v. Mo. 52, 531, -355. In Hawes auditor, query “The learned for the ‘Has the we said: counsel assembly require appropriation power further necessary preference appropriations equally for de made other attempted by partments is 13th cities, out revenue of such as ’ 15, unhesitatingly Act ? 'in of March 1899 answered section “any used in phrase cities”, the affirmative.” revenue of such The to, mean income foregoing quotation, be construed current must subject ap may from whatever derive it Which source do public v. Re propriation Thompson for ex rel. Board of use. State de 305 Mo. 264 700. We hold that the revenues gents, S.W. 24, 25,
rived in Items 26 and were described fund under properly Commissioner allocated to the revenue 84.730. (It upon held as above set forth that we untenable basis (Prior $350,000 of respondents’ contention that account of Item on Revenue) local in character” being Years’ “derived from activities 84.730-.) exempt it was from revenue under allocation 29, designated Property Item “Park’ Rentals the record as 30, designated Concessions”, $31,500; Item in the amounts to City-Owned Property”, amounts to record as “Rental of Miscellaneous $50,120; amounts designated as “Rentals and Concessions”, represents earnings $16,950. Respondents each claim of these items municipal appropriation exempt or local and are from activities state purposes. We have hereinabove considered that con (city hall rents and con tention as to other of a kindred items nature adversely cessions, municipal receipts, and ruled it etc.) auditorium respondents. through $952,300.
Items 59 amount to Com missioner held that all of them were allocable to holding in so Respondents contend he erred police power
the reason is derived from the éxercise or activities local character. *21 the hereinabove
By reference to schedules set it will be seen forth, mainly accruing relate to income that these items to for so- city the (such notary as “governmental recording fees, services” called and backfills; services; cuts and tow-in costs, etc.); charges street court and facility fees; public health, welfare and hospital services; recreation public safety; inspection cemetery in connection with burial fees and et cetera. services, (cid:127) adversely respondents’ We have heretofore ruled contention that in- municipal come received from activities local or in character is exempt general from allocation revenue under 84.730'. But say that certain respondents now of the income 46 included in Items through city to payment 59 in by comes services rendered city police of its such power, in the exercise as license fees for the regulation pictures, They, of motion and enterprises. carnivals other say city by that the is authorized law to collect regulation fees for that not taxation subject appropria- such fees are and should be to purposes, citing ion for state Kansas School v. District of Kansas 364, 930, 932; 201 S.W. 2d Viquesney Mo. City, v. 497, City, 700, 305 Mo. 266 S.W. [3-5], The hold above cases power charge regulation has to fees for that enterprises certain police its power, but, they
under we read them, as do not justify announce doctrine that would a conclusion the state that include fees reckoning cannot such in liability under § 84.730. say
Respondents also repair cut fees and street and backfill gas inspection they fees that expense are less than the of the services rendered and not revenue; are they reimburse fund. We think they reimburse no fund that has legislative constitutional or authoriza- deprive tion general for its so to existence as what otherwise is revenue contemplated They as placed 84.730. are in general funds general by used for purposes. objections are made respondents through general to the allocation of Items 59 to overruled. fund are designated Uses”,
Item “Revenue from Other Street amounting $42,000, Special to was allocated Commissioner Respondents say money revenue. item part of the this charges permits “dig derived from made for up” streets usually pay restoration, are insufficient to cost of and that loading digging permits; comes from zone that the fees from street charges loading are character zone local and that the fees from permits originate that, from an power; exercise of there fore, neither is We allocated to revenue under adversely have respondents. hereinabove ruled both contentions 20_,designated $42,- Item “Dog Licenses”, amounting Special was allocated to Commissioner. Respondents object upon ground licenses are exacted .a city’s police power. grounds are under the Both activity local adversely hereinabove ruled for reasons stated. “Parking amounting 7, designated Receipts”, Meter allocated to $115,000, Commissioner say Respondents parking that “should it be held that the
revenue. meter receipts derive from the police power, then a situation is police power from other presented which is somewhat different fees. substantially than main Parking receipts are the cost of meter more money. taining collecting the For the fiscal the meters and $25,- at the cost of collection and maintenance was estimated question, $115,000. gross If 000, and to be at this amount the amount collected purposes, appropriable is revenue for state at least the cost of the already parking machines Since meters have should be deducted. our *22 longer principle an paid for, issue, been that cost is no but the should ’’ be declared. proper dependent upon
The item not whether it allocation of this is represents, activity city or an represent, profit will or loss from of the activity; or or it an amount whether it is income from a local is city parking fund general the into its from that estimates will come city year. placed is in the during Concededly, meters fiscal it the any special use. treasury general use; not devoted to Conse- for it is under 84.- general revenue fund 'quently, part it a of the § constitutes 730. Revenue”, amounts “Municipal Farm 61, designated
Item as be derived from $363,600, $360,000, estimated, to of which it is will $3,600 which will be of poultry raised on the farm, livestock farm municipal The operation dog pound a thereon. from of derived the confinement a institution for operated is owned and as correctional Special the sum was occupation prisoners. and useful of The entire say (in ad Respondents general allocated to revenue. Commissioner them) court against that the to if dition contentions heretofore ruled an exercise should hold the farm arises of that the income from out $205,346, police power, cost of production, then the estimated gross anticipated say income should be deducted. Suffice it to city general allocated to municipal operations from farm was treasury revenue as current goes fund. The fund into the entire must Consequently, it special use. general use and is not devoted to a 84.730. general a fund part be revenue § of treated Starlight Theater 71, designated as “Contribution $15,000. Association”, Special said: amounts to Of it Commissioner Theater, Starlight “Item 71 is revenue received from the Association repayment a some time of to the association city loan which the made year 1954-1955. prior budget preparation for the revenue, to the Regardless it is income of the character of this a paid special purpose or into required devoted a which is not general fund, ($15,000) part a special and this revenue is city.” Respondents say revenue, revenue fund of the is but it repayment of a park activity loan and that is a local and is therefore exempt. definitely We hold that it part general constitutes a revenue fund under 84.730. 72, designated Hem as “Sale of Real and Personal $22,150. Property”, $16,000 amounts to The had allocated there $6,150 of to the fund park thereof to funds. The entire sum Special general revenue, Commissioner on allocated ground part required special that no thereof is to be devoted to Respondents use. $6,150 contend it is not should be park allocated to funds. stated, For reasons we hold hereinbefore that all of the fund inures to the fund and is a of the' general revenue fund under 84.730. Hem designated as “Miscellaneous Re Non-Revenue ceipts”, $12,100. amounts to It of amounts consists recovered insurance fire losses, moneys, recovery on damages unclaimed city property and like sources. The Commissioner allocated sum to Respondents say revenue. -money none of this revenue; that it original reimburses an fund and that the amount of insurance is far less than the premiums. money insurance clearly a part of-the and as such 1954-19-55, is allocable under foregoing challenged findings In addition ruling Special Commissioner, objections parties we have considered approved unchallenged findings. We, as correct his therefore, tabulate and total findings the-purpose assessing *23 the.city’s extent of liability for support police department of its 84.730 year for the fiscal beginning May as follows: Source Not General General Revenue Revenue Fund Revenue Fund Item 1 Property General $7,617,147 293,874 $ Taxes - 2 Property General 3,505,746 Taxes 54,474 Park 274,006 Levies Cigarette
4 Stamp 1,055,556 Taxes 5 Gasoline and Motor 162,761 1,757,2-39
Fuel Tax 22,500 727,500 6 Vehicle Licenses Parking 7 115,000 Meters 4,500 8 Taxicab Driver’s Licenses 9 42,000 Other Street Uses Items 6,570,430 10-23 Licenses, Franchises
24-26 371,070 Rentals 27-28 Airport Receipts 443,7 65 98,570 29-31 Rentals and Concessions
395 80,000 32-35 Interest 311,454 144,550 Market 36-45 Public Charges, Fees, 952,300 46-59 Service etc. 35,000
Item Sale Insurance Municipal 363,600 Farm 5,592,523 Items Fund 62-66 Water 524,150 67-69 State Federal Grants Payment Item 70 Federal in Lieu 3,520
of Taxes 15,000 Starlight Theater 22,150 Property 72 Sale of Receipts 73 Miscellaneous 12,100 Working Capital Items Public 74-81 Working Capital
Works 1,176.094 Funds 404,641 82 Reimbursable Services 174,500 83 Collections Assessments Prior Years’ Estimated 839,178 Revenue any proceeds (less front- from the tax) footage Surplus Unappropriated over and surplus
above such as above $1,571,106 estimated (less any proceeds the front- tax) footage Revolving Contribution from Public 544,300
Improvement Fund
$12,661,960 $23,405,055 denied duction to the extent liability in excess of of 1954-1955 amounts to One-sixth any front-footage $3,551,354. $3,900,842.50. The Under § tax proceeds 84.730, the (subject therein) city has re difference extent of the
potential liability undischarged to the remains *24 matter practical But a sums, $349,488.50. between two to wit: these man which yet to determining the extent to be considered remains in May on this cause court damus will lie. This was submitted City moneys public 1955. The issues deal with the share of the fiscal during police department to which the entitled affect now May money can ending 1,1955. here awarded No amount of eireum- such efficiency operation during period. Under of its tbe any judgment excess of unjust to award in be would stances, outstanding obliga- discharge lawfully required relators amount lawfully issued requisitions for were department which of the tions there- mandamus is writ of in 84.780. The alternative provided § be only respondents cause to to the extent peremptory made fore treasury money in the any paid and relators out of appropriated any 84.730, in enumerated specific purposes appropriated § front-footage pro- tax exceeding $349,488.50 (less amount not legally liable therein) remains police department ceeds which the All in 84.780. timely requisitions provided and for which it issued against are respondents. costs taxed Storckman, J., concur; con- Leedy, Westimes, JJ., G.J., Dalton and Hollings- Leedy, C.J., in separate concurring opinion,
curs in dis- part and in concur; Hyde, J., concurs JJ., worth and Westimes, dis- and part Eager, J., in concurs in separate opinion; sents in in J. separate opinion Hyde, sents and in part, concurs persuasive indica STORCKMAN, {concurring). J. —Another funds unexpended treasury and surplus tion that funds in the ‘‘ calculating the previous years be included were intended to comprising found statutes year” revenue fund of the term county budget provides that whenever law. Section understood it “shall county budget law “revenue” is used in the used for the to be ordinary and taken mean the * * * regardless the source expenses county current county court provides that the which derived.” further The section expenditures” “budget receipts prepare shall a estimated January on hand as receipts the cash balance that “the shall show all an estimate of obligated, all revenue collected first and not also re or to be moneys estimated collected, received revenue to be also all that the General year.” appears Thus it during ceived the current to in prepared so as Assembly budgets should be county intended that previous but not used surplus appropriated or clude funds funds While the definitions receipts and income. years as as current well county budget law, limited to the procedures provided in 50.670'are involving or related similar may into consideration statutes we take meaning light upon the subject when such statutes shed matter expressly prohibited or con being construed, unless we are statute Louis Police Relief trary appears. ex rel. St. plainly intention State 929, 934; 60, 19b. 16 C.J.S. Igoe, Ass’n. 340 Mo. 107 S.W.2d v. required body the terms governing of Kansas board “the sum of appropriate use of statute to year, enable said money necessary for the next which will be * * * it, upon and to meet the discharge imposed the duties board shall not exceed appropriated expenses police department.” one-sixth of “the However, amount so *25 If the appropriated Y.A.M.S. sum so year.” pay- of such further limitation immediately police and without to the board able up surplus build funds and maintain a reserve, the so that board could limitation apply only the one-sixth should to cur- the contention that plausible. would be more the’city the However, income of board is rent requisition semimonthly upon the chief “to finance only authorized sum, within the limits appropri- such annual officer the. necessary period, which sum shall be ation, may he allocated police department.” placed credit by said officer 84.780 V.A.M.S. budget contemplate that the board will its needs
The statutes only basis and to hold that board is entitled on-an annual one- receipts and income collected of the current when would be a sixth legislative theory plan. from the We find no departure clear ex surplus the cash on hand or pression of intention exclude funds in calculating “general purpose revenue fund” for the of determin appropriation. The terms used in ing maximum statutes must be ordinary meaning given unless such construction their usual will statutory provision. ’Malley manifest intention of O defeat the v. 837; Co., 75 S.W.2d Ins. 335 Mo. C.J.S. 639,
Continental Life ,329b. high Whether the one-sixth limitation is too or too low is a legislative matter the courts. opinion
For additional reasons I concur of the court. these Separate Concurring Dissenting Opinion agree principal J. I cannot with the HYDE, opin by City that amounts not due to or received ion herein which holds during year determining involved must considered the total one-sixth, limitation of made amount to which the Sec. 84.730 applies. It must be conceded far RSMo., Y.A.M.S. that Sec. 84.730 is being my clear and definite. it is that the reason However, view legislative specified, construction of this limitation it and the in able budget (if statute, requires it) is that the Police Board tent of (constituting general revenue) of all revenue entitled to one-sixth during year City receives or has due to it involved; but during subsequent year it any is not entitled to one-sixth of unexpended funds derived revenue received year words, I
prior and carried over to be used other think later. .In words,' year”, “one-sixth of the of such one-sixth of the fund derived from revenue received mean ‘‘ City during or due to the and no more. The words of such year” particularly significant; suggested by are and the idea is same “payable the words out of revenue of said cities’’also found in See. 84.730.' meaning long is consistent with our this con-
I think established all local plan keeping finances on an annual stitutional basis. Ever (Sec. 12, 1875) since 1875 Art. Const. we have provision had the *26 vote) a (without governmental two-thirds no or that other local an exceeding year become indebted “to amount in any unit shall the ’’ year. provided purpose revenue for such income and The of is this obligations exceeding prevent annual annual revenue. The doubt, system Legislature, had this financial in no mind when it passed City (Laws 1939', Act in 1939 pp. 545, Police the See. 559.) requirement 1945 Constitution contains the the additional of Art. governmental budget. units have an 26(a) local annual Sec. all that considering provides previ- now unencumbered balances of thereof determining much years in how such ous units become indebted in savings may year; previous years spent by while any be the they any purpose, clearly lawful City do not constitute revenue subsequent year by separate a as shown the provided for reference to I provision. Legis- in constitutional cannot believe that them this lature meant language used in Sec. 84.730'that the Police general both to of all Board was entitled one-sixth revenue of the City year provided in the for which it was during and also the next year any surplus year of revenue to one-sixth carried over from the provided. short, for which it was In the Police Board is not entitled any one-sixth of twice. opinion herein, City budget As shown prepared is approved beginning year at the of the appropriations fiscal are budget. gets in accordance with City made this a better credit rating if budget it has financial and, reserves is inten- therefore, tionally underestimated. course, opinion properly holds, Of as the this nothing underestimated amount has to do with the total amount the receive, Police Board is entitled to if full one-sixth the revenue year required budget, of the is to meet the Police Board because it is entitled to one-sixth City pro- of the actual revenue of the year vided for the and not one-sixth of an estimated amount. There- fore, when, in budget ease, greater this of the Police Board is then one-sixth the actual revenue of the the Board year, given should be first one-sixth later, of the estimated amount and revenue in excess estimated amount comes the Board should in, given appropriations additional up full amount of one-sixth City of all year revenue due the by it, for the as it received even including delinquencies paid one-sixth of that are after the end year. However, surplus City amounts, which the has accumulated spending from not years, my view, preceding due it in are, no part subsequent any revenue fund of year, as that Therefore, term is used in Sec. 84.730. if the Police Board was not entitled to surplus previous year during one-sixth of such aof such (because year budget large enough year its such during was not require it), get or if it did one-sixth of surplus during -year, then-in either event it not entitled during of it the-year any subsequent year. involved or herein (cid:127)' To illustrate: if the actual City revenue due the n fiscal year 1953 was the Police Board $21,000,000.00, was entitled $3,500,000.00 if it needed it budget and made such a request. How- ever, if the only requested $3,000,000.00 Police Board and for that City $500,000.00 surplus, reason the had spend did not but carried year, over to the next the Police Board not be entitled would one-sixth of amount if even its 1954 budget larger than one-sixth of the total amount of the actual City during revenue due to and received year. the 1954 fiscal- Likewise, got if in 1953 $3,500,000.00, the Police Board asked for and $500,000.00 saving operation in the but made other namely: Police departments, would be the same, situation *27 re- actual revenue to -and only get one-sixth of the due Board could in the eeived'by City during and would not $500,000.00-surplus any part of the year be 'entitled to subsequent next Board year. the Police during previous Otherwise, accumulated There- get not but twice. would one-sixth of the same fund once one- fore, agree that, is entitled to I the Police Board while item, “unappropriated surplus sixth the next to the last over (and surplus $1,571,106” any other above such as above estimated — year, I any), in if surplus additions to such from revenue due that do agree entitled to one-sixth of item not that the Police Board is agree year’s Likewise, I do $839,178.” “estimated not prior revenue — item, “Con- is the last that the Police Board entitled to one-sixth of $544,300.00”, Revolving Improvement tribution from: Public Fund — years; up preceding in or -because it is made of revenue collected 71-, $15,000.00”, payment “Starlight- 'of item which was a Theater — year. legis- If the previous of a loan of made from revenue of a funds in made this in the construction lative intent was- accordance with by an amend- clear definite -dissenting it- could be made opinion, in I concur rulings, all As to other items ment to See. 84.730.
'principal opinion. 'Eager, J., concurs. eo-r-Rehearing
On Motion rehearing does Respondents’ PER motion for CURIAM: city is challenge finding general revenue of our basic “that by virtue of special into to-special purposes or allocated funds jd-evoted reckoning one- -.the'-city-.’s (and ordinances) included is to be charter charter 84.730, fund under unless .sixth-of the purpose or special placing to a or ordinances such funds provisions clearly implied express special pursuant into or funds were enacted strenuously urge they statutory authority.” do But constitutional or legislating by judicially rigors to relieve them of the of said statute us exceptions provisions. insistence, In answer to this to its we must say, original opinion, that not onr If, as we said in the is due function. municipal operation financing', to modern methods of 84.730 has oppressive, problem political is become archaic or and relief can only legislature; jurisdiction are be had courts without premises. in the
Bearing postulates in given these we have mind, careful considera- assignments of respondents’ and, tion to each of the motion with the exceptions hereinafter have stated, that motion should concluded be overruled.
I. say Respondents in “deciding receipts airport (Items 27-28, $443,765), unpledged payment for the airport of revenue prior needs, bonds to the date the Police Board certified its could not general revenue, implication excluded seems to be that if authority the revenue is pledged, under of Section Article YI of Constitution, implication should be If excluded. this war respectfully suggest ranted opinion we that the be clarified.” opinion imply and, does considered in its entirety, holds effect that whenever revenues of the are or pledged special to a devoted purpose pursuant express clearly or fund or implied constitutional legislative or authority, as is the case with funds, 27-28, these Items then throughout such funds must succeeding thenceforth years their encumbrance be excluded from revenue to the extent of reckoning the encumbrance in liability
II. Respondents call our original attention to the failure of the opinion pass upon expenditures certain reckoning lia its *28 bility under opinion 84.730. The paragraph did overlook a § respondents’ reading brief as follows: “By direction of state statute, City the $341,000 will contribute to pension by and firemen’s fund, federal $150,000 statute to FICA (social security), by and $193,548, state statute to costs of elections. money of this All should be deducted from the appropriable fund for police purposes. Otherwise, to City that the extent, and its Citizens be
would burdened with taxation, double property and would be taken process without due of law, in violation of Section I of the Fourteenth Amendment of the Constitution of the United States.” respondents
Of these items, say: now “In addition to the contribution to the Firemen’s Pension Fund from vehicle licenses mentioned in Item 6 opinion, City of the the $198,500.00 made additional contributions of to the Firemen’s Pension Fund, by the direction of the same 86.657, Section Statute, R.S.Mo. 1949, and, by as well direction of Section 86.653. 1949, City contributed the R.S.Mo. 86.297, Section “By direction $120,000.00. Fund the sum Pension Police the to City contributed 117.140, the R.S.Mo. “By Section direction the maintenance of the and for municipal, elections, than other for $193,548.00. Board, the sum of (cid:127)Election Bill No. Laws for Senate Substitute Committee “By direction of Page 4(1) particularly Section Page and Missouri, 1951, [530] thereby authorized between contract with a compliance 793, and in Comptroller the State of Budget and Division of the and * * * Security) (Social to the FICA City contributed Missouri, departments the employed in employees $182,749 the sum Fundi ’’ Revenues. hold to be General you of which revenues (cid:127) their contention have abandoned respondents noted that be It resort process, of due and now deprivation taxation of double statutes. of certain provisions por- city make contributions of require the does 86.297 Section therefore, fund it is police pension clear, of its tions by city in accordance with saidl any contributions máde that 84.730, revenue under excluded from § should be statute city por- to set aside certain authorizes the hold. .Section.86.657 we so and certain of their pensioning its firemen revenues tions of its pension fund department 86.653 creates fire Section dependents. city moneys by all things, that requires, among other received! any clear paid that fund. It is shall be into from’ certain sources statutes should by city in accordance with these made payments 84.730, and so hold. general revenue under we excluded from § and ex- Any moneys, city out for its share of the salaries paid for the conduct Election Commissioners penses of Board of the. elections, un- general, special primary (which.includes elections 117.010) provisions under specified, otherwise less city operation, charge in the course of its upon are but special is created nor is No payable out of revenue. city purpose. for such “earmarked” reckoning are excluded in payments not to be Hence,
liability 84.730, and we so hold. however, regard payments made exists, with different .situation A 105.460, 788-796, 1951, pp. 105.300 to under Laws §§ put into security. Under that when relating Act, to social
V.A.M.S., required pay into a contribution operation city, fund, by thereof, moneys; certain (105.390) such Act created 6§ kept required separate and it is such funds be from other further *29 clear, therefore, allocated public funds. It seems that funds be excluded paid to and into such fund should 84.730, revenue under so hold. we and!
III. Respondents say through that chargeable error not figures a duplication court there was in an exhibit on which Item Estimated Prior Years’ Revenue, face, was computed, which, on its # * * subjected $496,967 appropriations to “two particular this money”. They say through amount also that chargeable error not substantially to the court one-half of an of $45,485 item should have been excluded from the revenue fund. These are now matters conceded, immaterial and moot. It is as we understand, police that the department operated during year the fiscal May ending within appropriated the funds for its maintenance express due to and, placed upon limitations the peremptory herein, writ ordered issued the, actually nothing, will take other costs, than its judgment under Consequently, rendered. respondents be duplica cannot hurt tion or the other erroneous addition to revenue referred to. To further any consider them can be of no aid to one.
IY. holding In that surpluses during any actual available year prior rather than estimates thereof should be considered current revenue for purpose reckoning liability under § 84.730, we further said: unappropriated surpluses “As came into the treasury or any became freed of charge, pledge special trust or use and were appropriated decided. during the fiscal ’’ year, they to such became general public available use appropriation the council
Respondents say quoted language may interpreted be mean department during year would be entitled such one-sixth surplus becoming during available the fiscal year though even it had been allowed one-sixth thereof earlier in the year. same language Such is, Any interpreted". not to be so course, such surplus becoming during available the fiscal would reckoned in computing city’s liability year only for such when it came from original funds not included in the estimate. And that precisely what we in computing liability did 84.730, opinion, as our read, when will reveal. opinion is modified to the extent set above forth and the motion rehearing is overruled.