State v. Kemp , 365 Mo. 368 ( 1955 )

HOLLINGSWORTH, J.-

[507] Original proceeding in mandamus. Relators as the members of the Board of Police Commissioners of Kansas City, Missouri, seek to compel the Mayor, the Council and the City Manager of said City to appropriate an amount in excess of that appropriated to meet the expenses of the [508] Police Department for the fiscal year beginning May 1, 1954.

Section 84.730 RSMo 1949, V.A.M.S., provides:

“It shall be the duty of said board [of Police Commissioners], on the fifteenth day of January of each year, to prepare, in writing, a budget estimating the sum of money which will be necessary for the next fiscal year, to enable said board to discharge the duties hereby imposed upon it, and to meet the expenses of the police department, which it shall forthwith certify to the governing body of such cities, * * * *. Said governing body of such cities is hereby required to appropriate the total amount so certified, payable out of the revenue of said cities after first having deducted the amount necessary to- pay the interest on the indebtedness of said cities, the amount necessary for lighting the city, and any sum required by law to be placed to the credit of the sinking fund of said cities, * * * except that in no event shall the governing body of such cities be required to appropriate for the use of the police board in any fiscal year an amount in excess of one-sixth of the general revenue fund of such year.”

The petition alleged that pursuant to the provisions of said section relators made and certified to respondents an estimate of $4,028,726 as the amount necessary to enable the board of police commissioners to discharge its duties and to meet the expenses of the police department for the aforesaid fiscal year, which said sum, it was alleged, the council, by virtue of the provisions of said statute, was required to appropriate because it is not in excess of the maximum amount fixed therein, but that it refused so to do and did appropriate a lesser sum, to wit: $3,551,354. In an amended return to our alternative writ issued pursuant to the provisions of Art. V, §4, Constitution of Missouri, respondents alleged that the sum demanded by relators was in excess of one-sixth of the general revenue fund for the fiscal year beginning May 1, 1954; that the sum of $3,551,354 theretofore appropriated was likewise in excess thereof, and that the alternative writ should be quashed.

The issues being thus joined, this court appointed Honorable Christian F. Stipp as Special Commissioner to take testimony and to report his finding of facts and conclusions of law, which he has ably and painstakingly done. Both parties have filed exceptions to certain conclusions of law reached by the Special Commissioner and to numerous of his findings as to whether certain items of revenue constitute a part of “the general revenue fund” of said fiscal year, within the meaning of § 84.730. (All statutory references herein are to RSMo' 1949, V.A.M.S., unless otherwise indicated.)

Kansas City is a municipal corporation organized and existing pursuant to the provisions of a special charter framed and adopted by the people as authorized by the State Constitution. The city manager is the chief administrative officer and the members of the council and the mayor constitute the legislative body of the city. The Kansas City police department operates under the exclusive direction and control of the board of police commissioners which was created by state statute and whose members are appointed by the governor. § § 84.350-84.860. Pursuant to the provisions of state law, charter provision and fiscal direction, the various departments of city government and the police department submitted to the city manager their budget requests for the fiscal year 1954-1955 which began on May 1, 1954. The city manager prepared the annual budget for the city for that year in which he estimated the revenues which would be received and recommended the appropriations to be made. The relators had certified a budget of $4,028,726, but the city manager recommended an appropriation of $3,551,354. The budget, with the latter amount, was subsequently approved by the council and the appropriation made.

In the preparation of the city budget, the anticipated revenue was allocated to various funds in the city treasury as follows:

[509] Allocation

Item Source of Revenue Fund Amount

1. General Property Tax Levy (10.39) General $7,911,021

2. General Property Tax Levy (4.61) General Debt and

Interest 3,505,746

3. Special Park Tax Levies East Park 131,260

West Park 197,220

4. Cigarette Stamp Taxes General 950.000

East Park 105,556

5. Gasoline and Motor Fuel

Taxes Street 1,920,000

6. Vehicle Licenses General 22,500

East Park 513,615

West Park 213,885

7. Parking Meter Receipts General 115.000

8. Taxicab Driver’s Licenses General 4,500

9.Revenue from Other Street Uses General $ 42,000

10. Alcoholic Beverage Licenses General 303.500

11. Business, Professional and Occupational Licenses General 1,658,420

Bast Park 380

12. Kansas City Power and Light Gross Receipts Tax General 1,540,000

13. ' Gas Service Company Gross Receipts Tax General 786,365

14. Public Transportation Company — Bus Licenses General East Park 122,000 40,665

Í5. Public Transportation Company — Street Car Licenses General 22,000

16. Steam Company License General 58.000

17. Telegraph Company Franchise Taxes General 1,000

18. Natural Gas Company Gross Receipts Tax General 8,500

19. Telephone Company Gross Receipts Tax General 912.500

20. Dog Licenses General 42.000

21. Municipal Court Fines and Forfeitures General 685,000

[510]

22. Traffic Bureau Fines and Forfeitures General 355.100

23. Circuit Court Fines and Forfeitures General 35.000

24. City Hall Rents and Concessions General 37,970

25. Municipal Auditorium Receipts General 258.100

26. Net Rentals from Veteran’s Housing Project General 75.000

27. Municipal and Platte County Airport Receipts General 443,095

28. Grandview Airport Receipts General 670

29. Park Property Rentals and Concessions East Park West Park 30,750 750

30. Rental of Miscellaneous City Owned Property General 50,120

31. Rentals and Concessions General 16,950

Allocation

Item Source of Revenue Fund Amount

32.Interest Earnings General $ 80,000 General Debt and Interest 80,000

33. Accrued Interest on Bonds Sold General Debt and. Interest 5,000

34. Interest on Investments Water 175,000 Sewer Special Assessment 17,157 Street and Avenue Spec. Assessment 5,297 Cumulative Insurance Reserve 2,500

35.Interest on Special Assessments Sewer Special Assessment 22,000 Street and Avenue Spec. Assessment 7,000

36. Produce Merchants’ Rentals ' Public Market 107,500

37. Stall Fees Public Market 7,000

38. Reservation Fees Public Market 6,000

[511]

39. Kansas City Southern Railway Right-of-Way Easement Public Market 8,000

40. Miscellaneous Market » Revenue Public Market 700

41. Service Refunds Public Market 2,500

42. Parking Lot Rentals Public Market 4,200

43. Weighing Fees — Public Scales #1 Public Market 6,500

44. Surplus Commodities Distribution Fees Public Market 2,000

45. Rental from Telephone Pay Stations Public Market 150

46. General Government Service Charges General 6,715

47. Street Cut Repair and Back-fill Fees General 103,000

48. Gas Cut Inspection Fees General 1,740

49. Service Fees — Special Assessment Projects (Administration) General 12,000

50. Service Fees — -Special Assessment Projects (Engineering) General 72,000

51. Recreation and Public Welfare Charges General 11,900

52. Recreation Fees East Park West Park 68,270 2,210

53. Public Safety — Buildings and Inspection Division Fees General 208,490

54. Public Safety — Smoke Regulation Division General 31,500

55. Public Safety — Tow-in and Storage Charges General 100,000

56. Public Health Charges General 91,055

57. Hospital Charges General 234,870

58. Boulevard Cut Repair Fees East Park West Park 3,500 4,600

59. Burial Permits and Cemetary Services West Park 450

[512]

60. Sale of Fire and Extended Coverage Insurance Cumulative Insurance Reserve 35.000

61. Municipal Farm Revenue General 363,600

62. Farm Rentals Water 2,500

63. Sale of Water Water 5,463,903

64. Merchandising, Jobbing and Contracting Water 65.000

65. Miscellaneous Public Enterprise Revenue Water 61.000

66. Rental of Miscellaneous’ Buildings and Lots Water 120

67. State Grant for Tuberculosis Hospital General 210,000

68. Federal Reimbursement for Civil Defense Equipment General 299,000

69. Land Clearance for Redevelopment Authority General 15,150

70. Federal Payments in Lieu of Taxes General 3,520

71. Contribution from Starlight Theater Association General 15,000

Allocation

Item Source of Revenue' Fund. Amount

72. Sale of City Real and Personal Property General 16,000 East Park 4,6t>0 West Park 1,500

73. Miscellaneous Non-Revenue Receipts General 11,750 East Park 350

74. Sale of Stores Working Capital 481,049 Public Works .Working Capital 240,455

75. Sale of Postage Working Capital 38,558

76. Service to Storerooms Working' Capital . 6,682

77. Equipment Capitalized Working Capital - . , 6,730

78. Recoveries on Insurance Claims Public Works Working Capital 500

79. Recoveries on Damage Claims Public Works Working Capital 400

[513]

80. Equipment Rentals Public Works Working Capital 308,650

81. Intra-Fund Receipts Public Works Working Capital 93,070

82. Reimbursable Services Water 225,000 Working Capital 69,381 Public Works Working Capital ■ 40,260 Insurance Revolving* 70,000

83.Collections from Assessments Sewer Assessment 145,500 Street and Avenue Special Assessment 29,000

84.Prior Year’s Revenue General 762,340 West Park 49,485 General Debt and Interest 100,000 Water 35,249 Street Repair and Maintenance ■' 27,353 Insurance Revolving 49,462

The fiscal system of Kansas City is set up on a “fund accounting' basis”. Income and disbursements are accounted for through many different “funds” and each “fund” may embrace several “accounts”, the latter being managerial devices for ready determination of collections and disbursements. There is no “fund” designated as the ‘ ‘ general revenue fund ”.

The meaning of the term “general revenue”, as used in § 84.730, becomes a matter of first importance.

“By revenue, whether its meaning be measured by the general or the legal lexicographer, is meant the current income of the state from whatsoever source derived which is subject to appropriation for public uses. This current income may be derived from various sources, as our numerous statutes attest, but, no matter from what source derived, if required to be paid into the treasury, it becomes revenue or state money; * * *. ’ ’ State ex rel. Thompson v. Board of Regents, 305 Mo. 57, 264 S.W. 698, 700. See also State ex rel. McKinley Pub. Co. v. Hackmann, 314 Mo. 33, 282 S.W. 1007, 1011. It would seem clear therefore that the term “general revenue” would mean all current income of the city, however derived, which is subject to appropriation for general public uses, as distinguished from special uses.

One of the principal issues in the case is: May Kansas City, by authority of its charter or by ordinance, devote funds otherwise constituting general revenue to special uses, and in that manner deprive the state of the benefit thereof in reckoning “one-sixth of the general revenue fund” for the purpose of ascertaining the extent of the city’s liability under § 84.730 ?

Obviously, if the city, by its charter or by ordinance, may devote a substantial portion of what ordinarily would be considered general revenue to a special use by [514] a process of “earmarking” its use for a special purpose and thereby take such portion so “earmarked” out of the category of general revenue, then the city may starve its state operated and controlled police department into utter ineffectiveness and create a situation which heretofore the state assiduously has undertaken to prevent by statutes such as § 84.730 and its forerunners. See State ex rel. Reynolds v. Jost, 265 Mo. 51, 67, et seq., 175 S.W. 591, 593, et seq.; State ex rel. Field v. Smith, 329 Mo. 1019, 49 S.W.2d 74, 76, 78; Laws 1939, pp. 558, 559; § 7676, RSMo 1939.

The Special Commissioner came to the conclusion that the term “general revenue fund”, as used in § 84.730, meant and included “all current revenue of the city, however derived, which is not required to be devoted to a special purpose by constitutional, statutory, or charter provision or by covenants in bond obligations which are authorized by the constitution, the statutes or the charter.” (Emphasis ours.) Respondents rest upon the labors of the Special Commissioner in reaching the above conclusion, asserting merely that he was correct in so holding, and citing the eases upon which the Special Commissioner based his conclusion, to wit: Ex parte Siemens v. Shreeve, 317 Mo. 736, 296 S.W. 416; State ex rel. Carpenter v. St. Louis, 318 Mo. 870, 2 S.W. 2d 713; Morrow v. Kansas City, 186 Mo. 675, 85 S.W. 572; Kansas City v. Frogge, 352 Mo. 233, 176 S.W. 2d 498; Turner v. Kansas City, 354 Mo. 857, 191 S.W. 2d 612, and Kansas City v. J. I. Case Threshing Machine Co., 337 Mo. 913, 87 SW. 2d 195. Kelators vigorously disagree. They insist that in § 84.730 the General Assembly used the phrase “general revenue fund’1 as the collective designation of all that part of a city’s current income, however derived, which is subject to appropriation for general public use, excludmg only that income which is appropriable solely for particular public %<,ses under the specific authority of constitutional or statutory provisions explicitly requiring that such income be devoted to special purposes or be paid into• special funds.

The statutes creating the board of police commissioners of Kansas City and the police department thereof, defining their respective duties, powers and responsibilities, and providing for their maintenance, § § 84.350-84.860, expressly retain jurisdiction of the Kansas City police system as an agency of the state. American Fire Alarm Co. v. Board of Police Commissioners, 285 Mo. 581, 227 S. W. 114, 116-117 [1-3]. It is, therefore, hardly conceivable the Legislature could have intended that the city, chargeable as a state agency with the maintenance of the state controlled police department in the manner prescribed by § § 84.730 and 84.780, should at the same time have the power as a municipal corporation to defeat the legislative mandate of the State of Missouri through a policy of “earmarking”, either by charter or ordinance, portions of its revenue that otherwise would constitute “general revenue” within the meaning of § 84.730. This does not mean that the city may not, for its own purposes, lawfully divide its funds or allocate them in any manner it sees fit or subject its general revenue funds to particular public purposes, so long as it does not do so contrary to statute or its charter. 64 C.J.S., Mun. Corp., § 1884, pp. 443-444. But we think it does, mean the city may not, solely by authority of its charter or by ordinance, make such funds unavailable to the state under § 84.730. In so concluding, we reaffirm a principle long since announced and consistently followed in this state.

Kansas City could only frame and adopt a charter ‘ ‘ consistent with and subject to the Constitution and laws of the state " * See what is now Art. 'VI, § 19, Constitution of Missouri. Its charter must not be out of harmony with the general laws of the state nor invade the province of general legislation or attempt to change the policy of the state as declared for the people at large, Kansas City v. Marsh Oil Co., 140 Mo. 458, 41 S.W. 943, 945-947; nor may it be out of harmony or in conflict with the controlling law of the state, State ex rel. Hawes v. Mason, 153 Mo. 23, 35, 60, 54 S.W. 524, 526, 534. [515] “The law establishing the police commissioners [of Kansas City] and the system of police under them is an evidence of the policy of the state with reference to the police of one of its principal cities and it cannot be subverted by a local charter.” State ex rel. Goodnow v. Police Commissioners, 80 Mo.App. 206, 219. See also same case, 184 Mo. 109, 133-134, 71 S.W. 215, 220; Coleman v. Kansas City, 353 Mo. 150, 161, 182 S.W. 2d 74, 77.

In State ex rel. Carpenter v. St. Louis, 318 Mo. 870, 2 S.W. 2d, 713, 721, we said: “The cases construing the police laws are in point. The state has authority to provide by general law for the establishment of a metropolitan police force in a city operating under a special charter, and compel the city to maintain it by taxation. # * * * In State ex rel. v. Mason, 153 Mo. 23, 54 S.W. 527, it was held that the city of St. Louis could be compelled, by mandamus to pay the expense of the police system of that city, established by an act of the Legislature (Laws 1860-61, p. 446). It is significant that the original legislative act supplanted the municipal system which had existed prior to that time. Id. loe. cit. 32 (54 S.W. 524). The opinion written by Judge Gantt, referring to earlier cases, says (loc.cit. 47 (54 S.W. 530)) : ‘The power of the Legislature to provide the necessary agencies to perform the high functions of the state in the preservation oE * * * peace, etc., and to impose the duty of paying therefor on the locality for which * * * said agencies were created, was fully and firmly established. ’ ”

The cases cited by the Special Commissioner and relied upon by respondents do not militate against the doctrine above announced’. Each of them recognizes and holds inviolable the rule that the charter of a city (organized as is Kansas City) is subordinate to the will of the General Assembly insofar as it relates to governmental policy as distinguished from matters of local municipal concern.

It follows that we must and do sustain relators’ contention and hold that general revenue of the city which is devoted to special purposes or allocated into special funds by virtue of the city’s charter (and ordinances) is to be included in reckoning one-sixth of the general revenue fund under § 84.730, unless such charter provisions or ordinances placing such funds to a special purpose or into special funds were enacted pursuant to express or clearly implied constitutional or statutory authority.

In the light of the conclusion above reached, we now consider the specific items which relators contend the Special Commissioner erroneously excluded from the general revenue fund under § 84.730.

Item 3, designated in the Special Commissioner’s report as “Special Park Tax Levies”, aggregates $328,480. The Special Commissioner held that these levies were authorized by the Legislature under § 90.010 and were not allocable to the general revenue fund. Section 90.010 does authorize “any city” to levy a 2-mill tax, the proceeds of which “shall be known as the park fund”. Relators concede that to the extent Item 3 consists of a 2-mill tax as provided in § 90.010 it constitutes a special fund expressly authorized by statute and is not allocable to general revenue. Said item is, however, the aggregate of a levy of a 2%-mill tax amounting to $272,370 and a “ten-eent-per-front-foot tax levy” amounting to $56,110, for which latter tax there is no statutory authority whatever. Relators therefore insist that all of said sum over and above a 2-mill levy, to wit: one-fifth of $272,370 ($54,474), and the front-footage tax in the sum of $56,110, total $110,584, must be allocated to general revenue. Respondents say that although the Special Commissioner correctly found that this item was not allocable to general revenue, he did so under an erroneous premise that § 90.010, upon which the Special Commissioner based his finding, is not applicable to Kansas City, citing Kansas City ex rel. North Park Dist. v. Searritt, 127 Mo. 642, 29 S/W. 845; that the charter of Kansas City authorizes a [518] tax of 2% mills; and that under the Commissioner’s ruling to the effect that charter authorization was tantamount to legislative authority, he properly held such fund not to constitute g'eneral revenue within the meaning of § 84.730.

Section 60, Article III, of the city’s charter authorizes the levy of a 2%-mill tax upon all of the real estate, exclusive of improvements, in each park district for the improvement and maintenance of the boulevard system under the jurisdiction of the Board of Park Commissioners. Section 62 authorizes a maintenance tax of ten cents per front foot of land abutting said boulevard system. It is apparent that Item 3 was obtained by virtue of these two charter provisions.

If we were to accept respondents’ contention that § 90.010 did not apply to the situation here, then we should hold that all of the 21/2-mill tax ($272,370) is allocable to general revenue, because of our conclusion that charter provisions for the earmarking of general revenue to special purposes in the absence of constitutional or express statutory authorization therefor do not authorize the diversion of the general revenue funds referred to in § 84.730 into special funds so as to defeat the purpose thereof. However, we are convinced that, despite respondents’ assertion, § 90.010 does announce a legislative policy that impliedly authorizes the diversion of a 2-mill tax on the aforesaid real estate for park maintenance. To that extent, Item 3 is not allocable to general revenue. The portion of Item 3 realized from an excessive levy of one-half mill, $54,474, must be allocated to general revenue. But, even though the front-footage tax is without statutory sanction, we are convinced its nature and purpose is such it cannot be considered as general revenue under § 84.730. It is a limited local assessment against real estate abutting the boulevard system over and above the regular boulevard maintenance tax of 2% mills levied against all real estate in the two respective park districts. (These two districts include the whole of Kansas City. See § 56, Art. Ill, Kansas City Charter.) Presumably, such a special assessment is made against abutting property on the theory special benefits accrue thereto because of the proximity of such property to the boulevard system and, if so, it could not lawfully be diverted to a general purpose. Such a tax is not g'eneral revenue that has been earmarked, in violation of the principle hereinabove stated.

Item 5, designated as “Gasoline and Motor Fuel Taxes”, in the amount of $1,920,000, was levied under the provisions of § 288, Art. VIII, of the charter, which provides that all taxes from the sale of ■ gasoline or other motor fuel shall be appropriated for street maintenance or for payment of principal and interest on any bonds issued for such purpose. Concededly, there is no constitutional or statutory authority authorizing it to be so appropriated. The record is not clear, but it .does appear that of these funds the sum of $162,761 is obligated to the payment of general obligation bonds of the city, which amount, relators concede, is deductible from the total of $1,920,000, leaving a balance of $1,757,239 allocable to general revenue under § 84.730.

Item 6, designated as “Vehicle Licenses”, amounts to $750,000. Section 61, Art. Ill, of the charter authorizes the appropriation of all vehicle license taxes, except 3% thereof for firemen’s pension funds, for the maintenance of parks, boulevards, etc. The application of the aforesaid 3% ($22,500) to firemen’s pension funds is given express legislative approval by § 86.657, as a consequence of which $22,500 of said fund is properly excluded from the general revenue fund. However, there is no legislative authorization for the diversion of the balance of said funds, to wit: $727,500, and that portion of said sum must be included in general revenue under § 84.730.

Items 36 through 45, designated as “Public Market”, amount to $144,550. (This does not include $45,407 allocated to the public market fund from the general debt and interest fund, and with which we are not here concerned.) The income [517] ($144,550) realized from operation'of the city’s public markets is paid over to the city treasurer as annual and current revenue. The city, pursuant to authority of its charter, has issued revenue bonds hypothecating this income. But no part of such income arises out of any debt owed by the city to people from whom the income is derived.

■ Section 82.420 of the statutes makes it the iduty of the city to establish a city market, but the Legislature has not seen fit to give the city authorization to issue revenue bonds hypothecating the income therefrom. Relators concede that had the Legislature authorized' the city to -pledge its income from public markets to the payment of revenue bonds,' 'as it has authorized the city to do in the acquisition of parking facilities under'§ 71.360, we woiild then be confronted with a different situation. Even though the city’s charter authorizes the issuance of such bonds, yet such authorization cannot be asserted as against' the state under § 84.730. We hold that Items 36 through 45, totalling $144,550, must be allocated to general revenue.

Item 70, designated as “Federal Payments in Lieu of Taxes”, amounts to $3,520. This income is paid to the city by the Federal Housing Administration in lieu of taxes under a contractual arrangement between the city and the administration. It was allocated to the general fund by respondents, but the Special Commissioner held that it should be allocated to the general revenue fund, the general debt and interest fund and the east and west park funds in the proportion that property taxes were allocated by the Commissioner. The allotment to general revenue of its portion of this item, as thus computed by the Commissioner, was $2,045. Relators contend that Item 70 is not impressed with any trust, was commingled with general revenues and that the decision of the Commissioner as to its proper allocation has no relation to any contention of the parties, nor to any evidence introduced. We must agree with relators. While the money received by the city from the Housing Administration is in lieu of taxes, or more properly, perhaps, compensation for the loss of taxes, it is not revenue derived from taxes and it is not impressed with the specific uses to which general property taxes must be allocated. It follows that the whole of said item of $3,520 should be allocated to the general revenue fund.

Item 84, designated as “Prior Years’ Revenue”, was estimated as of January 1, 1954, to amount to $1,023,889. This estimated sum was by the city in its budget allocated in accordance with the City’s aforesaid charter provisions as follows: General Fund, $762,340; General Debt and Interest Fund, $100,000; West Park Fund, $49',485; Water Fund, $35,249; Street Repair and Maintenance Fund, $27,353; and Insurance Revolving Fund, $49,462. (Concededly, for reasons not pertinent here, no portion of the General Debt and Interest Fund, the Water Fund, or the Insurance Revolving Fund is allocable to general revenue.) The Special Commissioner said of Item 84: “Item 84 represents the revenue to be received during the fiscal year 1954-1955 from activities of prior years and includes (1) revenue which was appropriated in prior years and which was not expended, and (2) revenues which were received in prior years in excess of the revenues expected to be received. This revenue is subject to appropriation for use in the various funds to which it was allocated. The revenue allocated to the general fund ($762,340) is a part of the general revenue fund of the city.”

Relators contend that inasmuch as there is no constitutional or legislative authorization therefor the sum of $49,485 allocated to the West Park Fund and the sum of $27,353 allocated to the Street Repair and Maintenance Fund should be included in and added to the aforesaid sum of $762,340, hereinabove allocated by the Special Commissioner to the general revenue fund.

Respondents contend: “Only $270,000: of this amount is definitely appropriable for state purposes. In prior years the total revenue was divided among the Police Department and the City Departments. [518] Savings were made in some of the city departments aggregating $141,500.00; that is, all of the money appropriated to them was not expended. The' amount of these savings was carried forward into the fiscal year in question. Since it is a part of the total revenues from which the Police Department received its lawful share it should not again be included in the fund appropriable to the Police Department. If it were included the City would be doubly taxed, and the property of the City and its citizens would be taken without due process'of law in' violation of the 14th Amendment of the Constitution of the United States.

“$350,000 of the total amount in Item 84 represents an excess in collection from the amount of revenue estimated to be collectible in the fiscal year 1953-1954. This collection is from sources which we regard as local in character such as the City Hall, Auditorium, etc., discussed hereafter under Point VI. Should our contention in this regard be sustained this $350,000 as well as the $154,454 should be excluded from appropriations for state purposes.”

Respondents’ objection to the allowance of $350,000 of Item 84 because allegedly that portion of said item is derived from activities “local in character”, as .distinguished from activities arising out of the exercise of police power, will be hereinafter ruled adversely to respondents for reasons there more fully stated.

Respondents cite no authority in support of their contention that if such surplus is included in reckoning the city’s liability the city would be thus doubly taxed, and the city’s property would be thereby taken without due process of law in violation of the Fourteenth Amendment of the Constitution of the United States. The allocation of this surplus from prior years ’ revenue to the general revenue fund for determining the extent of the city’s liability under § 84.730' does not amount to double taxation. ‘ ‘ To constitute double taxation in the prohibited sense the second tax must be imposed upon the same property for the same purpose, by the same state or government during the same taxing period * * (Emphasis ours.) 61 C.J., Taxation, § 69, p. 137. The “general revenue fund of such year”, as employed in § 84.730, is nothing more nor less than a res, that, by statute, is made the basis of computing the city’s liability for that year. It is worthy of note that another section of the statutes, § 84.780, provides that the city’s liability as1 determined under § 84.730 is payable “out of any •moneys in the city treasury not appropriated to the specific purposes above enumerated in section 84.730”, to wit: interest on indebtedness, lighting costs and established sinking fund.

Furthermore; when a municipality acts as an agency of the state, as Kansas City does in maintaining’ its police force, federal constitutional restraints do not apply against the state. City of Trenton v. State of New Jersey, 262 U.S. 182, 43 S.Ct. 534; City of Tulsa v. Oklahoma Natural Gas Co., 4 F. 2d 399, 403 [4-7], See also State ex rel. Hawes v. Mason, 153 Mo. 23, 52 et seep, 54 S.W. 524, 532 et seep

It follows that relators’ contention must be sustained. The sum of $49,485, allocated out of the aforesaid surplus to the West Park Fund (less any portion thereof that may represent proceeds from the ten cent front-footage tax on properties abutting the boulevard-system), should be and is allocated to general revenue, for the reason said sum is surplus over and above the total amount accruing to and received by the city from the 2-mill tax authorized by § 90.010, which is the statutory limit of the city’s authority to earmark general funds for park purposes; and the sum of $27,353, allocated to the Street Repair and Maintenance Fund, should be and is allocated to general revenue for the reason that there is no legislative authority whatever for the allocation of general revenue to the Street Repair and Maintenance Fund; all as was more fully hereinabove discussed. These sums added to the $762,340 heretofore [519] allocated to general revenue make a total of $839,178 (less any proceeds from the front-footage tax).

In addition to the budgeted surplus above referred to, there was during the 1,954-1955 fiscal year unappropriated surplus on hands in’the city treasury which is not reflected in the budget upon which the city’s liability under § 84.730 was reckoned, and which relators insist must be included in such reckoning.

In a stipulation filed in this court subsequent to argument and submission of this cause, it is shown and admitted that in fact (as distinguished from the estimate in the budget) there was for the fiscal year of 1954-1955 “unappropriated surplus” in the city treasury allocated under the city’s aforesaid charter provisions, as follows: General Fund, $1,666,971; West Park Fund, $125,309; Bast Park Fund, $88,458; Street Repair and Maintenance Fund, $237,052 • and Market Fund, $292,494. Total, $2,410,284. Of this total,’ $1,941,042 was actually appropriated and expended prior to the end of the fiscal year.

' At the hearing before the Special Commissioner, Mr. Porter Homer, Director of Research of the Budget of Kansas City, testified: At the beginning of the fiscal year, the council does not'appropriate all of its unappropriated surplus, because the city has a better’credit rating if it has financial reserves. But it is generally thereafter appropriated in regular course. Appropriations are made on a yearly basis and when saving’s from prior appropriations and income from under-estimated collections have been put into an unappropriated surplus'fund they are subject to appropriation without reservation as to purposes for which they may be spent. In the past, the police department has received some appropriations from surplus funds, but not on the basis of one-sixth thereof. If the council believed an appropriation necessary for the police department, it made the money available out of unappropriated surplus.

We think it clear that the actual amount of such funds available to the city during the fiscal year (less any moneys accruing from the front-footage tax), rather than the priorly estimated amount thereof, should be considered current revenue for the purpose of reckoning the city’s liability under § 84.730. “Current revenue”, as stated, means income from any source that is or will be at hand and currently available for public use. State ex rel. Thompson v. Board of Regents, 305 Mo. 57, 264 S.W. 698, 700. See also Greenhalgh v. Woolworth, 361 Pa. 543, 64 A. 2d 659, 664 [6]; Public Market Co. of Portland v. City of Portland, 171 Ore. 522, 130 P. 2d 624, 643-645. As unappropriated surpluses came into the treasury or became freed of any charge, trust or pledge to- special use during the fiscal year, they became available for appropriation and were appropriated to such general public use as the council decided.

Section 84.730-does not fix the basis of the city’s liability at one-sixth of the anticipated or the levied general revenue of the fiscal year, but at “one-sixth of the general revenue fund of such year”. There can be no gainsaying the fact that the “general revenue fund of such year” is made up and consists of (1) general revenue funds on hand in the city’s treasury at the beginning of “such year” plus (2) general revenue becoming currently available for appropriation during “such year”. Therefore, such portion of unappropriated surpluses as is allocable to general revenue became a part of the city’s “general revenue fund” for the fiscal year beginning May 1, 1954, and must be included in reckoning the city’s liability under § 84.730'. Indeed., we do not understand respondents to contend otherwise; they seem only to differ with relators as to what portions of such surpluses are allocable to general revenue. To hold otherwise would enable the city to deprive the police department of its needs by deliberately underestimating or over-appropriating each year’s available revenue, and thus also to “both have thy cake and eat it” by thereafter bringing the resulting surplus funds back into its treasury balance without liability under § 84.730.

[520] The total of all surplus funds in the General Fund, West Park and Bast Park Funds, Street Repair and Maintenance Fund and ,the Market Fund, as shown by the stipulation, is $2,410,284. Of this amount we have priorly in this opinion allocated $839,178 (the portion thereof initially estimated) to the general revenue fund, leaving for consideration the balance of $1,571,106 (the portion actually received in addition to the estimated amount), none of which is devoted to any constitutionally or legislatively authorized special fund, and all of which, therefore, is allocable to the general revenue fund under § 84.730 (except any proceeds from the front-footage tax). '

Relators’ final exception relates to an item of $544,300 appearing in the January 1, 1954, estimate of revenues (Exhibit 2) to the credit of the General Fund,- which relators contend should be allocated to the general revenue fund under § 84.730: It (the item of $544,300) was transferred to the General Fund from the Revolving Public Improvement Fund. The Special Commissioner did not include it in making his computations of the city’s liability for the reason, he concluded, it did not represent revenue received by the city but was an amount transferred from another fund pursuant to an accounting practice of the city. The respondents’ brief does not mention the item at all.

The testimony of Mr. Homer was: The Revolving Public Improvement Fund was established in 1926 and was largely maintained throughout the years by contributions from the General Fund, totalling in excess of $2,000,000, through the fiscal year ending 1953-1954. These funds were used for the purchase, among other things, of heavy equipment or structures, such as bulldozers or depots, for the use of the various departments. Unused portions of such funds, plus, it seems, certain rental charges paid on the equipment by the departments using it, would be returned to the general fund. Refunds to the general fund from 1944 through 1953-1954 totalled $809,857. The 1954-1955 contribution will nearly exhaust the Revolving Public:Improvement Fund, whose function has been taken over by another fund. 'The amount- of the transfer is large, not a normal occurrence. The council could, use all or any part of the Revolving Public Improvement Fund that comes back into the General Fund for any general purpose.

The mere fact that the amount of money coming back into the General Fund from the Revolving Public Improvement Fund during the fiscal year of 1954-1955- is unusually large does not and cannot amount to a “windfall” such as might unjus.tly enrich the police department beyond its estimated needs at the expense of the,city. By the express provisions of § 84.730; the department is limited in its demands to a “sum of money which will be necessary for the next-fiscal year.” We must presume the members of the police board have complied with their oaths of office. And, too, although the city may challenge any item of the department’s estimate here involved as not being authorized by law, it has not done so. There is, therefore, no such an issue here. We can see no distinction between funds that were returned from the Revolving Public Improvement Fund to the General Fund and any other surplus that goes back to the General Fund. We hold that said item of $544,300 must be allocated to the general revenue fund under § 84.730.

We now consider respondents’ objections to the report of the Special Commissioner.

Respondents first insist that the Special Commissioner erred in “not excluding the cost of street lighting, sinking fund obligations, police and firemen’s pensions, FICA contributions (social security), costs of election and the portion of the contingent fund from the revenues held to be appropriable for state purposes. ’ ’

Section 84.730 requires that the appropriation for the police department be “payable out of the revenue” of the city, after first having deducted the amount necessary [521] to pay the. interest on the indebtedness, the amount necessary for lighting costs, and any sum required to be placed to the credit of the sinking fund. This does not mean that the revenues available for the upkeep of the police department be diminished by the amount required to pay interest, lighting costs or sums to. be placed in the sinking funds, unless the total of city funds is insufficient to defray both police maintenance costs and the specific items mentioned in the statute. The purpose .and effect of the above provision is merely to give interest charges, street lighting costs and sinking funds priority of allowance and payment. Obviously, this provision can be a matter of concern only if and when insufficient provision is made or there are insufficient revenues with which to pay both the upkeep of- the police department and the aforesaid preferred items of the city’s-upkeep. There is no issue here on that score. The contention is overruled.

Iiem 27, designated in the report as “Municipal and Rlatte County Airport Receipts”, amounts to $443,095. Of this item the Special Commissioner said: ‘ ‘ This revenue is income to the city. It is required to be placed in the general fund by the- charter. It is not required to be devoted to a special purpose. This revenue * * * is a part of the general revenue fund of the city.” The evidence discloses that in July of 1954 the city, under constitutional authorization, pledged said receipts to the payment of revenue bonds.

Respondents say.: “Section 27, Article VI of the Constitution, empowers the City to issue airport revenue bonds and pledge the revenues of the airport as security for the bonds, All of the revenues of the City’s airport are -so pledged. * * * Revenues so pledged are in the nature of a trust fund. They fall within the protection of the Fourteenth Amendment of the Constitution of the United States. ’ ’ Relators ’ brief says that “airport revenues would have been authorized by constitutional provision (Art. VI, § 27, Const, of Mo.) to be devoted to a particular public use if they -had been hypothecated prior to May 1, 1954, * * *.. But these revenues were not so hypothecated until July of 1954, and were orginally commingled with other income allocated to the city’s General Fund.”

It .is obvious that funds, of the city which were unpledged prior to the date the board of police commissioners certified its needs to the city council and prior to the beginning of the fiscal year (May 1, 1954) cannot be excluded from general revenue in reckoning the city’s liability under § 84.730. In State ex rel. Reynolds v. Jost, 265 Mo. 51, 85, 175 S.W. 591, 598, this court said: “We can only say to those officers of Kansas City that the law points to them the way. It requires the police commissioners to make their estimate and demand at the beginning of your fiscal year. If that demand is within the law, you are then in position to meet it. At the time the law requires it to be made, you have before you the whole city loaf to be cut and distributed. The law says that, at the instance of the sovereign state, you must cut a certain slice of that loaf for police protection to your citizens and the other citizens of the state. You then had it within your power to meet the demands of the law. If the law is a harsh one, go to the Legislature. ’ ’

Item 2d, designated as “City Hall Rents and Concessions”, amounts to $37,970; Item 25, designated as “Municipal Auditorium Receipts”, amounts to $258,100; Item 26, designated as “Net Rentals from Veteran’s Housing Project”, amounts to $75,000; Item 28, designated as 1 ‘ Grandview Airport Receipts”, amounts to $670. The Special Commissioner found that each of these items constituted revenue of the city, was required by the charter to be placed in the general fund, and was allocable to general revenue funds under § 84.730.

Respondents do not challenge the Commissioner’s finding that these items were revenue coming into the city’s treasury and were required by its charter to be placed in [522] the General Fund. They do contend however that each and all of said items are local in character and exempt from appropriation for state purposes, citing in support thereof: State ex rel. Kansas City v. Field, 99 Mo. 352, 12 S.W. 802; Kansas City ex rel. North Park Dist. v. Scarritt, 127 Mo. 642, 29 S.W. 845; Kansas City v. Marsh Oil Co., 140 Mo. 458, 41 S.W. 943; In re East Bottoms Drainage & Levee District, 305 Mo. 577, 259 S.W. 89; State ex rel. Gass v. Gordon, 266 Mo. 394, 181 S.W. 1016; 62 C.J.S., Mun. Corp., § 183, p. 339, to § 191, p. 350; MeQuillin on Municipal Corporations, Vol. 2, p. 151, § 4.85, §§ 4.89 et seq.

We have carefully read each of the above cases. None is in point. The first three hold that where a city’s charter contains a code of procedure for the exercise of its legislatively granted power of eminent domain, such code shall take precedence over general statutory provisions relating to the same subject matter. The case of In re Bast Bottoms Drainage & Levee District, supra, holds that the establishment of sewer districts was a matter of local or municipal concern. State ex rel. Gass v. Gordon, supra, a long and involved case, deals with the meaning of the word “revenue” as applied to a school law set forth in Laws 1915, p. 89, § 1. Respondents do not refer us to a word in any of these eases that sheds any light upon the issues here involved and, after careful search, we have found none. The citation from MeQuillin is not helpful to respondents.

The proper maintenance of an adequate police system in Kansas City is a matter of'state concern. State ex rel. Reynolds v. Jost, 265 Mo. 51, 67, 175 S.W. 591, 593. See also Van Gilder v. City of Madison, 222 Wis. 58, 267 N.W. 25, 105 A.L.R. 244, and ann. at p. 259. The fiscal affairs of a municipality such as Kansas City are subject to such legislative control as is necessary to the proper enforcement of matters of general state concern. 62 C.J.S., Mun. Corp., § 193, p. 352. Home rule constitutional provisions “do not prevent the legislature from imposing a duty on a municipality which will result in the creation of a debt to be met by local taxation where the duty or debt imposed is not for local or corporate purpose but arises from the performance of a function which a municipal corporation performs in its governmental capacity as an agency of the state.” 62 C.J.S., Mun. Corp., § 194, p. -355. In State ex rel. Hawes v. Mason, 153 Mo. 23, 52, 54 S.W. 524, 531, we said: “The query of learned counsel for the auditor, ‘Has the general assembly the further power to require such appropriation to be made in preference to appropriations for other equally necessary departments out of any revenue of such cities, as is attempted by the 13th section of the Act of March 15, 1899 ? ’ is unhesitatingly answered 'in the affirmative.” The phrase “any revenue of such cities”, as used in the foregoing quotation, must be construed to, mean current income from whatever source the city may derive it Which is subject do appropriation for public use. State ex rel. Thompson v. Board of Regents, 305 Mo. 57, 264 S.W. 698, 700. We hold that the revenues derived by the city as described in Items 24, 25, 26 and 28 were by the Commissioner properly allocated to the general revenue fund under § 84.730.

(It was upon the basis above set forth that we held as untenable respondents’ contention that on account of $350,000 of Item 84 (Prior Years’ Revenue) being “derived from activities local in character” it was exempt from allocation to general revenue under § 84.730-.)

Item 29, designated in the record as “Park’ Property Rentals and Concessions”, amounts to $31,500; Item 30, designated in the record as “Rental of Miscellaneous City-Owned Property”, amounts to $50,120; Item 31, designated as “Rentals and Concessions”, amounts to $16,950. Respondents claim each of these items represents earnings from municipal or local activities and are exempt from appropriation [523] for state purposes. We have hereinabove considered that contention as to other items of a kindred nature (city hall rents and concessions, municipal auditorium receipts, etc.) and ruled it adversely to respondents.

Items 46 through 59 amount to $952,300. The Special Commissioner held that all of them were allocable to the general revenue fund under § 84.730. Respondents contend he erred in so holding for the reason that the revenue is derived from the éxercise of police power or from activities local in character.

By reference to the schedules hereinabove set forth, it will be seen that these items relate mainly to income accruing to the city for so-called “governmental services” (such as notary and recording fees, court costs, etc.); street cuts and backfills; tow-in charges and services; recreation facility fees; public health, welfare and hospital services; inspection fees in connection with public safety; burial and cemetery services, et cetera.

• We have heretofore adversely ruled respondents’ contention that income received from activities local or municipal in character is exempt from allocation to the general revenue fund under § 84.730'. But respondents now say that certain of the income included in Items 46 through 59 comes to the city in payment of services rendered by the city in the exercise of its police power, such as license fees for the regulation of motion pictures, carnivals and other enterprises. They, say that the city is authorized by law to collect fees for regulation and that such fees are not taxation and should not be subject to appropriaion for state purposes, citing Kansas City v. School District of Kansas City, 356 Mo. 364, 201 S.W. 2d 930, 932; and Viquesney v. Kansas City, 305 Mo. 488, 497, 266 S.W. 700, 702 [3-5], The above cases hold that the city has the power to charge fees for regulation of certain enterprises under its police power, but, as we read them, they do not announce any doctrine that would justify a conclusion that the state cannot include such fees in reckoning the city’s liability under § 84.730.

Respondents also say of the street cut repair and backfill fees and gas inspection fees that they are less than the expense of the services rendered and are not revenue; that they reimburse a fund. We think they reimburse no fund that has constitutional or legislative authorization for its existence so as to deprive what otherwise is general revenue as contemplated under § 84.730. They are placed in the general funds of the city and are used for general purposes. The objections made by respondents to the allocation of Items 46 through 59 to the general revenue fund are overruled.

Item 9, designated “Revenue from Other Street Uses”, amounting to $42,000, was allocated by the Special Commissioner to general revenue. Respondents say that part of the money in this item is derived from charges made for permits to “dig up” streets which are usually insufficient to pay the cost of restoration, and that part of it comes from loading zone permits; that the fees from street digging charges are local in character and that the fees from loading zone permits originate from an exercise of the police power; and that, therefore, neither is to be allocated to general revenue under § 84.730. We have hereinabove ruled both contentions adversely to respondents.

Item 20_, designated as “Dog Licenses”, amounting to $42,-000, was allocated to general revenue by the Special Commissioner. Respondents object upon the ground such licenses are exacted for .a local activity and under the city’s police power. Both grounds are ruled adversely for reasons hereinabove stated.

Item 7, designated as “Parking Meter Receipts”, amounting to $115,000, was by the Special Commissioner allocated to general revenue. Respondents say that “should it be held that the parking meter [524] receipts derive from the police power, then a situation is presented which is somewhat different from other police power fees. Parking meter receipts are substantially more than the cost of maintaining the meters and collecting the money. For the fiscal year in question, the cost of collection and maintenance was estimated at $25,-000, and the amount to be collected at $115,000. If this gross amount is revenue appropriable for state purposes, at least the cost of the machines should be deducted. Since our parking meters have already been paid for, that cost is no longer an issue, but the principle should be declared. ’ ’

The proper allocation of this item is not dependent upon whether it represents, or will represent, profit or loss from an activity of the city or whether it is income from a local or police activity; it is an amount that the city estimates will come into its general fund from parking meters during the fiscal year. Concededly, it is placed in the city treasury for general use; it is not devoted to any special use. Conse'quently, it constitutes a part of the general revenue fund under § 84.-730.

Item 61, designated as “Municipal Farm Revenue”, amounts to $363,600, of which $360,000, it is estimated, will be derived from livestock and poultry raised on the farm, and $3,600 of which will be derived from operation of a dog pound thereon. The municipal farm is owned and operated as a correctional institution for the confinement and useful occupation of prisoners. The entire sum was by the Special Commissioner allocated to general revenue. Respondents say (in addition to contentions heretofore ruled against them) that if the court should hold that the income from the farm arises out of an exercise of the police power, then the estimated cost of production, $205,346, should be deducted. Suffice it to say that the gross income anticipated from municipal farm operations was allocated by the city to the general fund. The entire fund goes into the treasury as current revenue for general use and is not devoted to a special use. Consequently, it must be treated as a part of the general revenue fund under § 84.730.

Item 71, designated as “Contribution from Starlight Theater Association”, amounts to $15,000. Of it the Special Commissioner said: “Item 71 is revenue received from the Starlight Theater, Association as repayment of a loan which the city made to the association some time prior to the preparation of the budget for the fiscal year 1954-1955. Regardless of the character of this revenue, it is income to the city which is not required to be devoted to a special purpose or paid into a special fund, and this revenue ($15,000) is a part of the general revenue fund of the city.” Respondents say it is not revenue, but repayment of a loan and that it is a local park activity and is therefore exempt. We hold that it definitely constitutes a part of the general revenue fund under § 84.730.

Hem 72, designated as “Sale of City Real and Personal Property”, amounts to $22,150. The city had allocated $16,000 thereof to the general fund and $6,150 thereof to park funds. The entire sum was by the Special Commissioner allocated to general revenue, on the ground that no part thereof is required to be devoted to a special use. Respondents contend it is not revenue and that $6,150 should be allocated to park funds. For the reasons hereinbefore stated, we hold that all of the fund inures to the general fund and is a part of the' general revenue fund under § 84.730.

Hem 73, designated as “Miscellaneous Non-Revenue Receipts”, amounts to $12,100. It consists of amounts recovered from insurance on fire losses, unclaimed moneys, recovery of damages to city property and like sources. The Special Commissioner allocated the sum to general revenue. Respondents say none of this -money is revenue; that it reimburses an original fund and that the amount of insurance is far less than the insurance premiums. The money is clearly a part of-the general revenue fund of 1954-19-55, and as such is allocable under § 84.730.

[525] In addition to ruling the objections of the parties to the foregoing challenged findings of the Special Commissioner, we have considered and approved as correct his unchallenged findings. We, therefore, tabulate and total such findings for the-purpose of assessing the extent of the.city’s liability for support of its police department under § 84.730 for the fiscal year beginning May 1, 1954, as follows:

Source of Revenue General Revenue Fund Not General Revenue Fund

Item 1 General Property Taxes $7,617,147 $ 293,874

2 General Property Taxes - 3,505,746

Special Park Levies 54,474 274,006

4 Cigarette Stamp Taxes 1,055,556

5 Gasoline and Motor

Fuel Tax 1,757,2-39 162,761

6 Vehicle Licenses 727,500 22,500

7 Parking Meters 115,000

8 Taxicab Driver’s Licenses 4,500

9 Other Street Uses 42,000

Items 10-23 Licenses, Franchises 6,570,430

24-26 Rentals 371,070

27-28 Airport Receipts 443,7 65

29-31 Rentals and Concessions 98,570

32-35 Interest 80,000 311,454

36-45 Public Market 144,550

46-59 Service Charges, Fees, etc. 952,300

Item 60 Sale of Insurance 35,000

61 Municipal Farm 363,600

Items 62-66 Water Fund 5,592,523

67-69 State and Federal Grants 524,150

Item 70 Federal Payment in Lieu of Taxes 3,520

71 Starlight Theater 15,000

72 Sale of Property 22,150

73 Miscellaneous Receipts 12,100

Items 74-81 Working Capital and Public Works Working Capital Funds 1,176.094

Item 82 Reimbursable Services 404,641

83 84 Collections from Assessments Estimated Prior Years’ 174,500

Revenue 839,178 184.711

(less any proceeds from the front-footage tax)

Unappropriated Surplus over and above such surplus as above estimated $1,571,106

(less any proceeds from the front-footage tax)

Contribution from Revolving Public Improvement Fund 544,300

$23,405,055 $12,661,960

[526] One-sixth of the general revenue fund (subject to reduction to the extent of any front-footage tax proceeds therein) for the fiscal year of 1954-1955 amounts to $3,900,842.50. The city has denied liability in excess of $3,551,354. Under § 84.730, the city’s potential liability remains undischarged to the extent of the difference between these two sums, to wit: $349,488.50. But a practical matter yet remains to be considered in determining the extent to which mandamus will lie. This cause was submitted to this court on May 11, 1955. The issues deal with the share of public moneys of Kansas City to which the police department was entitled during the fiscal year ending May 1,1955. No amount of money here awarded can now affect the efficiency of its operation during that period. Under such eireumstances, it would be unjust to award any judgment in excess of tbe amount lawfully required by relators to discharge outstanding obligations of the department for which requisitions were lawfully issued as provided in § 84.780. The alternative writ of mandamus is therefore made peremptory to the extent only that respondents cause to be appropriated and paid to relators out of any money in the city treasury not appropriated to the specific purposes enumerated in § 84.730, any amount not exceeding $349,488.50 (less any front-footage tax proceeds therein) for which the police department remains legally liable and for which it issued timely requisitions as provided in § 84.780. All costs are taxed against respondents.

Leedy, G.J., Dalton and Westimes, JJ., concur; Storckman, J., concurs in separate concurring opinion, in which Leedy, C.J., Hollingsworth and Westimes, JJ., concur; Hyde, J., concurs in part and dissents in part in separate opinion; Eager, J., concurs in part and dissents in part, and concurs in separate opinion of Hyde, J.