241 Mo. 569 | Mo. | 1912
— The county of Gasconade, as relator, by its petition for mandamus (averring and showing a special interest in the subject-matter of the suit),
Respondents concede that the motor vehicle fund should go to the “General State Road Fund,” and in their return aver that it has been placed there, and that relator has received its proportionate part thereof under their construction of the provisions of article 5, chapter 121, Revised Statutes 1909'. Respondents deny that the Stamp Act fund belongs to the “General State Road Fund.” They also -say that whilst they would he glad to pay out the motor vehicle fund, now in the “General State Road Fund,” in the manner suggested in the petition of relator, yet other counties in the State are demanding their proportionate part thereof, and for that reason they ask a construction of this law hy the court.
It should he noted that the relator sues for itself and some twenty-two other counties in like situation. Relator and these other counties, in the petition named, had before July 1, 1911, appropriated funds from their respective treasuries for the permanent improvement of roads under the provisions of article 5, chapter 121, Revised Statutes 1909. Petitioner had appropriated $1000 and claims to be entitled to $1000
The real contentions are two in number. First, over the disposition to be made of the Stamp Act fund, and, second, how the “General State Road Fund” should be distributed.
Both petition and return are voluminous, abounding in conclusions of law. The facts fall within small compass, and as the case stands before us upon a motion for judgment on the pleadings, the facts well pleaded in the return are the facts of the case. Under the facts respondents have not put the funds arising from the sale of stamps by virtue of the provisions of law for such sale, as found in chapter 91, Revised. Statutes 1909, into the “General State Road Fund,” nor have they paid out the motor vehicle fund after placing it in such “General State Road Fund” in the manner urged by relator. This sufficiently states the case for a discussion of the two or three legal questions involved.
I. The first question is, what shall be done with the money arising from the sale of stamps under the provisions of chapter 91, Revised Statutes 1909 ? Our statutes speak of the following’ road funds: (1) “Good Road Fund,” Laws of 1911, p: 331, sec. 13; (2) “General State Road Fund,” section 11914,. chapter 121, Revised Statutes 1909; (3) “Road Fund,” section 10229, chapter 91, Revised Statutes 1909, and (4) “The Road and Canal Fund,” article 4, chapter 121, Revised Statutes 1909.
The first named is the motor vehicle fund, and the section of the law reads: £ ‘ The registration fees provided herein shall be paid by the Secretary of State into the State Treasury, and shall be for the benefit of the ‘good roads fund.’ ”
The second fund is thus created by section 11914, Revised Statutes 1909: There is hereby created and
■ The third is the Stamp Act, and the “road fund” therein created had its birth in this language, as found in sections 10229, Revised Statutes 1909: “The fund arising from the sale of the stamps provided for in section 10228 of this chapter shall, in the hand's of the State Auditor, constitute a road fund; and it shall be the duty of the said Auditor to distribute said fund, annually, to the counties in the State and the city of St. Louis, in the same proportion and in like manner as the State school funds are now distributed by Mm.”
The fourth is a fund of long standing in this State, and the language of its creation is now found in section 11906, Revised Statutes 1909, which section reads: “The money received on the account aforesaid shall constitute a separate fund, to be called the ‘road and canal fund,’ and shall be managed, stated and accounted for separately from the general revenues of the State.”
The Act of 1911, which is the motor vehicle act, makes no specific provisions for its distribution, and whilst the style of the fund as described in the act is not just the same, it is evident to my mind that the purpose of the act was to place this fund in the “General State Road Fund,” a fund having its existence since the Act of 1907. This the Auditor and Treasurer have done.
The distribution- of the “General State Road ■ Fund” is provided for by sections 11915 to 11918, Revised Statutes 1909, inclusive. These sections read:
*578 “Sec. 11915. The money credited to the general State road fund shall he expended in the construction of permanent or continuing improvements of roads and highways in the State of Missouri, and for no other purpose whatever; and such fund shall be appropriated for use by act of the General Assembly from time to time in the manner hereinafter provided. The words ‘permanent or continuing improvements’ are hereby defined to be the surfacing of any road With gravel and rock, or with a well constructed mixture of sand and earthy material, commonly termed a ‘sand-clay road,’ any grading of the road and construction of concrete or masonry culverts, or any and all of the above defined improvements which shall be kept up without intermission. Wherever hereinafter in this article are used the terms ‘county,’ o.r ‘districts,’ or ‘city of St. Louis,’ the same shall be defined as any county, regular or special district, township and city of St. Louis. Plans for such improvements or construction under this article shall be approved by the county court of such county, and shall be attached to the requisition made on the State Auditor, and any and all such improvements or construction costing not less than one thousand dollars per mile of road or not less than five hundred dollars per culvert shall, in addition, be approved by the state highway engineer.
“Sec. 11916. The general State road fund shall be apportioned and distributed to the several counties and the city of St. Louis, and used therein for the purpose of aiding in the construction of the permanent improvements of the public roads therein when the several counties or districts thereof, or the city of St. Louis, or the citizéns in such counties, districts or city of St. Louis, may provide the necessary funds to pay for at least one-half of the cost of such construction or permanent improvements; and in providing the necessary funds to pay for the one-half of the costs of such construction and improvements afore*579 said, the citizens may pay one-fourth thereof and the counties or districts or city of St. Louis may pay the remaining one-fourth. When the citizens and county or district or city of St. Louis have provided one-half of the necessary funds for such construction and improvements as aforesaid, then the county courts or properly constituted authorities of the districts or the municipal assembly of the city of St. Louis, shall, by the proper order of ordinance, make a requisition for their proportionate share of the general State road fund each year, and shall be entitled to withdraw and receive the same in the manner herein provided on .furnishing the proper evidence of the nature of the improvements proposed, and on showing that the county, district or city of St. Louis and the citizens of such county, district or city, have provided and set apart in the depositary of the county, district or city of St. Louis the funds for the payment of at least one-half of the cost of such construction or improvements: Provided, the proportionate share so drawn from the general State road fund shall be used and expended for the sole purpose for which it was so drawn, and shall be used in paying the other one-half of the costs of such construction or permanent improvements or so much thereof as the proportionate part going to said county or district or city of St. Louis may discharge.
“Sec. 11917. The general State road fund shall be apportioned and distributed to the several counties, districts and the city of St. Louis in proportion to the assessed valuation of properties therein for the purpose of taxation: Provided, however, that no county, district or city shall be entitled to have or receive from such fund in any one year more than an amount equal to three per cent of the total amount belonging to the general State road fund available for use in that year. The requisition of the several counties or districts and the city of St. Louis shall be made on the*580 State Auditor on or before tbe first day of July of each year, and all parts of such fund not applied for by such requisitions of the counties, districts or the city of St. Louis shall after two years revert to and remain in the general State road fund, and be subject to future apportionment and distribution as a part of such fund. And the State Auditor shall issue the proper voucher and warrant on the State Treasurer upon being furnished with satisfactory evidence and by the orders aforesaid that not less than one-half the cost has been provided for by the county, district, city of St- Louis and the citizens of such county, district or city.
“Sec. 11918. No part of the general State road fund shall be used to pay for rights of way or for lands on which to construct such roads, nor for payment of any damages or losses to the owners of abutting property, or to any one claiming to be specially injured by reason of the location, construction or improvement of such public road for which application may be made for any of said fund.”
The third is the Stamp Act fund and the statute creating the fund as above quoted, provides for its distribution.
The distribution of the “road and canal fund,” is provided for by section 11908, Revised Statutes 1909, which section reads: “Until otherwise provided by law, the road and canal fund shall be equally divided annually among the several counties in this State.”
The first three funds named, being all except the “road and canal fund,” had their origin in three separate -acts of the Legislature in 1907. The chronological history of the acts is thus stated in relator’s brief:
“Automobile Law: Introduced in House January 10; passed House March 4th; reached Senate March 5th; passed Senate March 13th; signed by Governor March 19th.
*581 1 ‘ Stamp Act: Introduced in Senate January 14th.; passed Senate February 11th; reached House February 12th; passed House February 22nd; signed by Governor March 8th.
“General State Eoad Fund: Introduced in Senate February 5th; passed Senate February 8th; reached House March 1st; passed House March 6th; signed by Governor March 30th.”
From this brief history of the origin of the funds and the law of their distribution we can intelligently discuss the question presented, i. e., should the money arising from the sale of stamps go into the “General State Eoad Fund?”
So far as the subject of roads is concerned these three several acts are statutes in pari materia. They were passed at the same term of the Legislature. There is no express repeal of one by the other. Under such circumstances what are the rules of construction?
In 36 Cyc. 1151, the general rule is thus announced: “The rule that statutes in pari materia should be construed together applies with peculiar force to statutes passed at the same session of the Legislature; it is to be presumed that such acts are imbued with the same spirit and actuated by the same policy, and they are to be construed together as if parts of the same act. They should be so construed, if possible, as to harmonize, and force and effect should be given to the provisions of each; if, however, they are necessarily inconsistent, a statute which deals with the common subject-matter in a minute and particular way will prevail over one of a more general nature; and of two inconsistent statutes enacted at the same session, that will prevail which takes effect at the later date. ’ ’
Smith, P. J., has well summarized the holdings in this State in the case of Lang v. Calloway, 68 Mo. App. l. c. 396, in this language:
*582 “Tt thus appears that there was passed at the same session of the Legislature two separate acts amending said section 3318 without any reference of the one to the other. The question is, what effect did the enactment of the latter have on the former?
, “it is a rule of construction that where two inconsistent acts, relating to the same subject-matter, are passed during the same session of the Legislature, the last passed in the order of time, by necessary implication, repeals the first. [State ex rel. v. Heidorn, 74 Mo. 410.] “While repugnant statutes must necessarily supplant previous ones, they must be clearly repugnant, for, unless the legislative intent is expressed in terms, it will not be assumed, if any other construction can be given to the subsequent act. [State ex rel. v. Draper, 47 Mo. 29.] It is a fair presumption that if the Legislature intends to repeal a statute, it will do so in express terms, or by the use of words which are equivalent to an express repeal; and the court will not, if it can be consistently avoided, adjudge that a statute is repealed by implication. [State ex rel. v. County Court, 41 Mo. 453.]
“But there is also another rule of pertinent application here which is, that where two acts are passed at the same session of the Legislature, relating to the same subject-matter, as here, they are in pari materia, and to arrive at the true legislative intent, they must be construed together. [Corry v. Ridge, 56 Mo. App. 615; State ex rel. v. Clark, 54 Mo. 216; State ex rel. v. Klein, 116 Mo. 259; St. Louis v. Howard, 119 Mo. 41.] The law does not favor repeals by implication. If by any fair interpretation all the sections of a statute can stand together, there is no repeal by implication. ’ ’
In Black on Interpretation of Laws, in speaking of statutes in pari materia, it is said:
“Especially is it the rule that different legislative enactments passed upon the same day or at the same*583 session, and relating to the same subject, are to be read as parts of the same act.”
To like effect is Lewis’s Sutherland on Statutory Construction, vol. 2, page 845 (2 Ed.), whereat it is said: “It is observed that in the comparison of different statutes passed at the same session or nearly at the same time this circumstance has weight; for it is usually referred to as indicating the prevalence of the saíne legislative purpose, as rendering it unlikely that any marked contrariety was intended.”
It is easy to see why the rule of construction pertaining to statutes in pari materia applies with peculiar force to statutes passed at the same session of a legislative body. In such case we have in fact the same minds acting upon the one subject. It is not to be presumed that the same body of men would pass conflicting and incongruous acts. The presumption is, that they had in mind the whole subject under consideration; that' whilst the one general subject is touched in several separate acts, yet the legislative intent was that of a harmonious whole. In such case, it is the duty of the courts to so construe all the acts in such manner that each and every part thereof may stand, if such construction can be attained, without doing violence to the language used in the several acts.
We take it that there can be no serious question as to these rules of construction. Under them, can these two acts (the Stamp Act and the “General State Road Fund” Act) stand as written? If they are absolutely inconsistent and repugnant, then of course the latter prevails and the former falls. But is such the case? We think not. .In our judgment, both can stand. The Legislature was dealing with the question of funds to be used upon public roads. By the statute the Stamp Act fund goes to all counties in the State and is apportioned as are school moneys. Such funds may be used by the counties for all legitimate road
By section 11916, no part of this fund can be used by a county until the county has made provision for half of the expense of the proposed improvement. The method of distribution is different. In this .law the taxable valuation of the counties is taken as a basis. Lastly no part of this fund can be used for road rights-of-way or damages to abutting property owners.
In the above discussion we have taken the law pertaining to the “General State Road Fund” as enacted in 1909, rather than the original act of 1907. In 1909, the whole Act of 1907 was repealed, and a new act passed in lieu thereof. The first and fifth sections are just the same, but the other three sections were
II. That the two acts were intended to create separate funds seems to have been fully recognized by the General Assembly. At the last session an appropriation was made out of such fund in this language:
“There is hereby appropriated out of any money in the State treasury, belonging to the ‘road fund’ —Stamp Act — the sum of one thousand dollars, to be used by the State Auditor to purchase stamps as provided for by an act approved March 1, 1907, concerning the sale and future delivery of grain and other commodities; also, the sum of three thousand six hundred dollars, to pay the salary of a special clerk and two thousand dollars for traveling and incidental expenses in connection with enforcing said law; in all a total of six thousand six hundred dollars.” [Laws-1911, sec. 68, p. 19.]
It will be noticed that they designate it as the “road fund,” so as to distinguish it from the “general State road fund.”
At the same time and from the same fund there was an appropriation of $500,000, to be distributed to the different counties as are the State school moneys,- but this act never became effective owing to a veto from the Governor.
Again House Bill No. 254, introduced by Mr. Tuggle, provided for the repeal of section 102-29' and the enactment of a new section in lieu thereof. This new section provided that the Stamp Act fund should be placed in the “General State Road Fund.” This bill was reported from the committee and was duly engrossed, but was never reached on the calendar. [House Journal 1911, p-- 310.]
But in addition to this, if the contention of relator is correct the “road and canal fund” would likewise go to the “General State Road Fund,” and its method of distribution be entirely changed. The Legislature has never so thought. Four years after the creation of the “General State Road Fund” we find that the Legislature treated the “road and canal fund” as it had always heretofore done. It appropriated $15,000 therefrom to be distributed to all the counties in equal amounts. [See Laws 1911, p. 10, sec. 26.]
The legislative idea therefore confirms our views of the question. We therefore hold that the writ should be denied in so far as it is sought to compel respondents to place the funds arising from the Stamp Act in the “General State Road Fund.” Let this be done in an orderly way by express legislative action. However much we may desire rock or gravel roads we can not violate the plain mandates of ordinary’rules of statutory construction, and do for the State by way of judicial legislation that which the Legislature has not done, and it would seem has no intention of doing.
III. As indicated above we hold that the motor vehicle fund should go to the “General State Road Fund” because there is no specific directions for its distribution'otherwise. We also hold that without further legislation the Stamp Act fund cannot be placed in the “General State Road Fund.” It only remains, therefore, to ascertain just how and to what counties the “General State Road Fund” should be distributed. Respondents ask the court to apply this fund as relator contends that it should’ be applied, if under the peculiar provisions of the law such can be
We would be indeed glad to give this article 5 of chapter 121, the construction asked for by relator, if such were possible under the language used, but to our mind the language used is not susceptible of that construction.
To get a bird’s-eye view of the situation, we shall take the two sections relating to the distribution of the funds and eliminate all portions thereof which tend to lengthen and confuse. After such elimination, section 11916 will read:
“The general State road fund shall be apportioned and distributed to the several counties when the several counties . . . may provide the necessary funds to pay for at least one-half of the cost of such construction or permanent improvement; . when the citizens and county . . . have provided one-half of the necessary funds for such construction and improvements as aforesaid, then the county courts . . . shall, by, the proper order . make a requisition for their proportionate share of the general state road fund each year, ana shall be entitled to withdraw and receive the same in the manner herein provided on furnishing the proper evidence of the nature of the improvements proposed, and on showing that the county . . . has provided and set apart in the depositary of the county . the funds for the payment of at least one-half of the cost of such construction or improvements.”
To this is attached a. proviso which requires that the State money be used only for the payment of the remaining one-half of any proposed improvement, “or so much thereof as the proportionate part going to said county . . . may discharge.”
“The general State road fund shall be apportioned and distributed to the several counties in proportion to the assessed valuation of properties therein for the purpose of taxation: Provided however that no county . . . shall be entitled to have or receive from such funds in any one year more than an amount equal to three per cent of the total amount belonging to the general State road fund .available for use in that year. The requisition of the several counties . . . shall be made on the State Auditor on or before the first day of July of each year, and all parts of such fund not applied for by such requisitions of the counties . . . shall after two years revert to and remain in the general State road fund, and be subject to future apportionments and distribution as a part of such fund. And the State Auditor shall issue the proper voucher and warrant on the State Treasurer upon being furnished with satisfactory evidence and by the orders aforesaid, that not less than one-half the cost has been provided for by the county, district, city of St, Louis and the citizens of such county,' district or city.”
Throughout these sections speak of counties, districts and the city of St. Louis, as well as further details, but with the exception of the last lines above we have eliminated those so as to simplify the sections. In section 11917 we have underscored some clauses which absolutely take the vitals from relator’s contention to the effect that the whole fund for the given year should be divided among the counties which have made requisitions upon the Auditor, rather than among all the counties and the city of St. Louis according to the valuation of property for taxation. It must be noted that, throughout, these requisitions to participate in this fund must be based upon proposed improvements, and must be accompanied by evidence that the county or the citizens thereof have deposited
The Legislature evidently thought that all -of the counties would not act at once, and hence after authorizing the distribution to all, it provided for the unclaimed fund so distributed, after two years, to revert back to the original fund and be again redistribu
There is no other construction of these statutes which will give full effect to all the language used therein. This is the construction which the auditor and treasurer have tentatively placed thereon, but which they ask us to obviate if we can. The language of the law will not permit us to so do. When properly studied the legislative intent becomes as plain as the light of day. The funds are to be distributed on the books to all the counties and the city of St. Louis in the manner above discussed. If certain parts are not claimed by proper requisitions from the counties, then in two years such parts revert and remain in the “General State Road Fund.” The use of the words “remain in” show that it is only a book apportionment which is contemplated. In fact the whole act so shows. These views are against the contention of the relator and the other counties so situated, but they give life to the full act and must prevail.
It follows, therefore, that the peremptory writ must be denied under the law, however strong our inclinations to give relator and these other counties the relief sought. Let the writ be denied.