Opinion
No. 28227.
September 11, 1951. Rehearing Denied October 12, 1951.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, JAMES E. McLAUGHLIN, J.
James E. Crowe, City Counselor, Albert Miller, Associate City Counselor, St. Louis, Frank A. Neun, St. Louis, of counsel, for appellants.
Richard A. Austin, Kaufmann Stemmler, Richard A. Hetlage, all of St. Louis, for respondents.
This is a suit for a declaratory judgment brought by the members of the Board of Police Commissioners of the City of St. Louis and Jake Joseph, a police officer, as plaintiffs, against the City of St. Louis, a Municipal Corporation, and James E. Crowe, City Counselor, as defendants, for the purpose of determining whether the defendant Crowe is, under Section 2 of Article X of the City Charter, bound to represent the said Jake Joseph in the defense of a suit for false arrest brought against the latter by one Helen Irene Wideman.
The trial court entered a judgment which declared that the defendant City of St. Louis and defendant James E. Crowe, as City Counselor of said City, are, under the above mentioned charter provision, required to furnish legal services to and represent said Jake Joseph in the defense of said false arrest suit, "even though, in said suit, said Jake Joseph is charged with, and alleged to be guilty of, willful and malicious wrongdoing, and with having transcended his authority as such police officer." From this judgment, defendants have appealed.
Subsequent to the submission of this case, the death of William Holzhausen was suggested and, on stipulation of the parties, it was ordered by the court that the name of William Holzhausen as respondent be withdrawn and the name of Maurice G. Roberts, President of the Board of Police Commissioners, be substituted therefor; and it was further ordered that the name of Nick Reidy be added as a member of the Board of Police Commissioners and as a party plaintiff-respondent.
The cause was submitted on a motion to dismiss. Said motion challenged the sufficiency of the petition to state a cause of action. Taken with the motion was a stipulation agreed to by the parties. Said stipulation provided that in the event defendants' said motion was sustained, plaintiffs would not amend their petition and, in that event, judgment might be entered dismissing the action with costs to defendants; but if said motion was by the court overruled, defendants would refuse to plead further and the court should then enter judgment upon the merits on the facts stated in the petition. It was also provided in said stipulation that the court should take judicial notice of the terms and provisions of Section 2 of Article X of the Charter of the City of St. Louis.
The relevant facts, as they appear from the petition, are as follows:
Plaintiffs Maurice G. Roberts, Daniel G. Church, Charles H. Ostertag, and Nick Reidy are members of the Board of Police Commissioners of the City of St. Louis. Plaintiff Joseph M. Darst is the Mayor of said City and, as such, is a member of said Board. Plaintiff Jake Joseph is a member of the police force with the rank of Detective Lieutenant in charge of the morality squad of said force, charged with the duty to suppress prostitution and other kindred vices and offenses, and to enforce the laws and ordinances relating thereto within the City of St. Louis.
Defendant Crowe is the City Counselor of the City of St. Louis. Section 2 of Article X of the City Charter provides: "The city counselor shall be the head of the law department; appoint all associates, assistants and employees in his department; shall, through said department, direct the management of all the litigation in which the city is a party, including service in the city courts; represent the city in all legal matters and proceedings in which the city is a party or interested, or in which any of its officers are officially interested; advise the board of aldermen or any committee or member thereof and the mayor and heads of all departments and through the mayor and heads of departments all other officers of the city as to all legal questions affecting the city's interest; and approve as to form all contracts, deeds, bonds and other documents to be signed in the name of or made to or with the city. He shall render the police department all legal advice and services required by it. He shall receive a salary of eight thousand dollars per annum."
On February 14, 1950, and again on May 17, 1950, plaintiff Joseph arrested one Helen Irene Wideman in the belief that she had been guilty of violating the laws and ordinances relating to prostitution and other kindred vices and crimes. Thereafter, and on or about the 14th day of June, 1950, the said Helen Irene Wideman brought a suit in the Circuit Court of the City of St. Louis against the said Jake Joseph for $10,000 actual damages and $20,000 punitive damages for alleged false arrest. The petition alleged that the arrests in question were made maliciously, wantonly, falsely, and with intent to injure the said Helen Irene Wideman; that the arrests were made without warrant and without right or authority, and against the will of the said Helen Irene Wideman.
Upon the filing of said suit, and while the same was pending and undetermined, plaintiff Board of Police Commissioners, acting for and on behalf of the Police Department, and plaintiff Joseph, requested of defendants that defendant Crowe, as City Counselor, furnish legal services to plaintiff Joseph in defense of said suit. Defendants refused to furnish said services.
The respective contentions of the parties with respect to the issue are set out in the petition filed herein, as follows:
"(a) Plaintiffs construe said provisions (Article 10, Section 2 of Charter) as requiring the City Counselor, when and after having been so required by the Police Department, to furnish legal services to, and represent, a member of the Police Force, even though sued in his own name as an individual on an alleged cause of action alleged to have arisen out of, or in connection with, his performance of police duties, and plaintiffs hold and maintain that defendant Crowe, as City Counselor, under the facts herein stated, is required to furnish legal services to, and to represent, plaintiff Joseph in the aforementioned suit.
"(b) Defendants, on the other hand, construe said provisions as not obligatory, requiring or authorizing the City Counselor to furnish legal services to, or represent, a member of the Police Force when sued in his own name as an individual for a cause of action alleged to have arisen out of, or in connection with, the performance of his police duties, and is not required or empowered to furnish legal services to, or represent, plaintiff Joseph in the aforementioned suit * * * but, on the contrary, defendants contend that said City Counselor is precluded from so acting, because and for the reason that said Jake Joseph, under the facts herein stated, is charged with, and alleged to be guilty of, willful and malicious wrongdoing, and with having transcended his authority as such police officer in making said arrests * * *."
The trial court overruled the motion to dismiss and, on the facts alleged, entered the following judgment:
"Wherefore, it is now therefore ordered, adjudged, decreed and declared as follows:
"(1) Under and pursuant to the Charter of the City of St. Louis, and, specifically, Section 2 of Article X thereof, the City of St. Louis and the City Counselor of said City, when so requested by the Board of Police Commissioners of said City, are required to have the City Counselor furnish legal services to, and represent, a member of the Police Force when sued in his own name as an individual for a cause of action alleged to have arisen out of, or in connection with, his performance of police duties, even though, in such suit against such police officer, such police officer is charged with, and alleged to be guilty of, willful and malicious wrongdoing, and with having transcended his authority as such police officer.
"(2) Under and pursuant to the Charter of the City of St. Louis and, specifically, Section 2 of Article X thereof, the defendant City of St. Louis, and the defendant James E. Crowe, as City Counselor of said City, are required to furnish legal services to and to represent plaintiff Jake Joseph in Cause No. 38326-D of the Circuit Court of the City of St. Louis, Missouri, entitled Helen Irene Wideman, Plaintiff, vs. Jake Joseph, Defendant, even though, in said suit, said Jake Joseph is charged with, and alleged to be guilty of, willful and malicious wrongdoing and with having transcended his authority as such police officer.
"(3) That defendants pay the costs of this proceeding."
Respondents very strenuously urge that, by reason of the charter provision, the City Counselor is required, upon the police department's request, to represent Joseph in the suit brought against him. Appellants, on the other hand, maintain the converse, namely, that there is no such requirement on the City Counselor. Pursuant to this contention, the City Counselor has refused to represent Joseph in said suit, which suit is still pending. Thus, a very real and live controversy exists which is proper for determination under the Declaratory Judgments Act, Chapter 527, R.S.Mo. 1949.
Appellants make the point that, since the Police Department of the City of St. Louis is established by statute, the charter provision cannot apply to it but can only apply to a police department established under said charter. There is no merit to this contention. The police department of the City of St. Louis was established by state law by the Act of March 27, 1861, Laws 1860-61, p. 446, and was established and operating under the state law at the time the present charter was adopted in 1914. At that time the state law provided, Section 9825, R.S.Mo. 1909, now section 84.330, R.S.Mo. 1949, that the members of the police force, organized and appointed by the police commissioners, "are hereby declared to be officers" of the city under the charter and ordinances thereof, and also to be officers of the State of Missouri. The framers of the charter must have intended that the "Police department" mentioned in Section 2 of Article 10 of said charter was the police department established under the statutes and then operating within the city.
The question presented by this appeal is a rather narrow one: Does the charter provision, Sec. 2, Art. 10, make it the duty of the City Counselor to appear in the defense of a police officer who, in a suit for damages for false arrest, is charged with having been guilty of willful and malicious wrongdoing, and with having transcended his authority as such police officer? The respondents maintain that such a duty does exist, and base their contention on the following provision of said charter, to wit: "He (City Counselor) shall render the police department all legal advice and services required by it."
The primary rule of statutory construction is to ascertain the lawmakers' intent from the words used, if possible, and put upon such language its plain rational meaning, taking into consideration the purpose sought to be accomplished by the act and the consequences of any proposed interpretation. The intent is to be determined from a view of the entire Act.
The City Counselor's duties to the city and to the departments and officers of the city government, other than the police department, are also defined by said section of the charter. Those duties relate to litigation and legal matters in which the city is a party, or in which the city is interested, or in which any of its officers are officially interested. The City Counselor is also required to advise members and committees of the Board of Aldermen, the heads of all departments, and, through the latter, all other officers, only as to questions affecting the city's interest. The words "interest" and "interested" should not be interpreted in the broadest sense as implying a duty on the part of the City Counselor to advise and defend an officer of the city in purely personal matters, on the theory, perhaps, that a benefit would result to the city from an increased efficiency on the part of such officer in the performance of his duties when relieved of the obligation of financing his own defense, but such words refer to a legal, equitable, or official interest in the subject of the action, or the matter concerning which advice is sought. Otherwise an intolerable burden would be placed upon the city. City of Chicago v. Williams, 182 III, 135, 55 N.E. 123.
A similar situation confronted the court in Donahue v. Keeshan, 91 App.Div. 602, 87 N.Y.S. 144, 146. In that case plaintiff sued defendant, a police officer, for an assault alleging that defendant "without justification or provocation, willfully, maliciously, and violently struck and beat this plaintiff." The corporation counsel answered for the defendant. Subsequently, plaintiff secured an order to show cause why the appearance of the corporation counsel should not be set aside, and why the defendant should not defend the action in person, or by counsel other than the corporation counsel or his assistants. Upon the return to the order to show cause, the special term granted an order setting aside the appearance of the corporation counsel. On appeal, the order was affirmed.
In the above mentioned case, as in the case at bar, there was no express provision in the charter directing the corporation counsel to defend such an action and, in passing on the point made — that the provision which required the corporation counsel to conduct all law business in which the city was interested — the court said: "The `law business in which the city of New York is interested' refers not to a speculative or theoretical interest, but a legal interest. The corporation counsel is to have general charge of the law business of the municipality, including its various legislative, ministerial, and executive departments, whether in charge of a single officer or a board; and the effort to stretch this provision of the statute to cover the case of an individual who happens to be a policeman, and who is charged with a tort, can find no justification under any rule of construction with which we are familiar." Donahue v. Keeshan, 91 App.Div. 602, 87 N.Y.S. 144, 146.
It is difficult to believe that the framers of the charter intended to require the city law department to render greater service to the police department and its officers than to other departments, or to vest in the Police Board a discretion not given to the heads of other departments of the city government. On the contrary, it seems clear that in requiring the City Counselor to "render the police department all legal advice and service required by it," the same character of advice and service was intended as the statute provides for the city and other departments.
If the allegations of the petition in the false arrest case are true, then neither the city nor the police department have any interest in the case and appellants are under no duty to defend respondent Joseph. It is not the kind of service that the police department may require of the City Counselor. In this matter, we take the view expressed by the New York court in Donahue v. Keeshan et al., supra. In that opinion the court said, 87 N.Y.S. 144, loc. cit. 146: "He (plaintiff) alleges that the defendant, `without justification or provocation, willfully, maliciously, and violently struck and beat this plaintiff,' and, if this allegation is true, the city of New York has no possible interest in this controversy, because it is no part of the duty of a policeman, `without justification or provocation,' to `willfully, maliciously, and violently' strike any person. The duty of a policeman, under proper circumstances, to make an arrest, carries with it the right to use so much of force as, and no more than, is reasonably necessary to accomplish the purpose. When the officer goes beyond that point, he ceases to act in behalf of the city, and he assumes the responsibility. The allegation of this complaint is that the defendant, `without justification or provocation,' assaulted the plaintiff; and, unless the corporation counsel is specially authorized by the charter to defend policemen who are charged with the commission of torts, there would seem to be no good reason why the defendant should not be called upon to answer for his tort, the same as any other citizen. As was said by the court in the somewhat analogous case of People ex rel. Underhill v. Skinner, 74 App.Div. 58, 62, 77 N.Y.S. 36:
"`It would be against public policy to permit individuals to defend purely personal actions at the expense of the community. Men undertake public duties, they discharge the duties of citizenship, subject to the risk of being called upon to defend their conduct in the courts. It is one of the penalties we pay for the protection of society, * * *.'"
Respondents, to sustain their contention, rely mainly on the case of State ex rel. Crow, Attorney General v. City of St. Louis, 174 Mo. 125, 73 S.W. 623, 61 L.R.A. 593. However, that case is not in point. It merely stands for the proposition that the municipal legislature may by ordinance appropriate money from the city treasury to reimburse a police officer for any sum paid by him to satisfy a judgment rendered against him in a suit for damages by one injured as a result of acts performed by said officer in the discharge of his duty. That case did not deal with the question involved in the case at bar, namely: Does Section 2 of Article X of the City Charter by its terms require the City Counselor to defend damage suits against city officers charged with illegal acts committed by them? We do not hold that the city, acting through the legislative branch of its government, is without power to indemnify an officer for loss suffered by him while acting in good faith in the discharge of his official duties. A discretion to do so is properly lodged in the municipal assembly. But to afford protection to every officer when sued in tort, regardless of the facts of the case, would be against public policy. It would tend to make him reckless and overbearing in the exercise of the powers of his office. Board of Commissioners of Natrona County v. Casper National Bank, 56 Wyo. 132, 105 P.2d 578, 130 A.L.R. 727. It would seem wise, therefore, to leave such matters to the discretion of the municipal assembly, which can best represent the interest of the city, instead of making it a matter of right, or of vesting such discretion in the Police Board, an administrative agency appointed by the state government.
After considering the language of the Act in question, the purpose sought to be accomplished by it, and the undesirable results of the construction of the Act as urged by respondents, we are of the opinion that the framers of the Act never intended it to require the City or the City Counselor to furnish legal service to and represent a member of the police force when sued in a cause of action based upon a charge of willful and malicious wrongdoing, and with having transcended his authority as such police officer. The trial court erred in its interpretation of the Act. Appellants, under the terms of Section 2 of Article X of the City Charter, are not required to furnish legal services to and represent Jake Joseph in cause No. 38326-D of the Circuit Court in the City of St. Louis, Missouri, entitled Helen Irene Wideman, plaintiff, v. Jake Joseph, defendant, which cause is now pending and undetermined in said court.
The judgment appealed from is reversed.
McCULLEN and BENNICK, JJ., concur.