State ex rel. Greene County v. Gideon, 273 Mo. 79

273 Mo. 79 | Mo. | 1917

WOODSON, J.

This is a mandamus proceeding instituted in the circuit court of Greene County, by the appellant, to compel respondents to allow, audit and pay a claim made by the county to a portion of the dramshop license levied and collected by the City of Springfield.

The trial court decided the case against the county, and in due time and in proper form it appeáled the cause to this court.

The facts of the case are these: The city of Springfield is a city of the second class, located in Greene County, and is operating under a commission form of government which was enacted in 1913 (Laws 1913, p. 420), and the respondents are the commissioners thereof. The general powers of such cities are contained in Section 8 of said act, beginning at page 426 and ending at page 439, .and are composed of 74 subdivisions. Subdivision 40 of said section is the one, involved in tiiis case, In so far as material to this ease, the first clause of said Section 8 is as follows: .

“Sec. 8. Every city of the second class shall have power by ordinance, not inconsistent with the Constitution, or any law of this State, or of this article :”

And the fortieth subdivision thereof reads:

“Fortieth: To have the exclusive power to restrain, suppress, regulate, license and tax dramshops and to revoke dramshop licenses.”

At The time of and for many years prior to the enactment of the act authorizing a commission form of government, local option outside of Springfield was in force in said county.

Subsequently, in the year 1915, the Legislature passed an act amending Subdivision 40 of said Section 8 of the Act of 1913, which reads as follows:

“Be it enacted, etc. Sec. 1, etc. That .the fortieth subdivision of Section 8 of an act entitled, ... be and the same is hereby repealed and that a new subdivision of said section to be numbered Fortieth be and the same is hereby substituted therefor, reading as follows, to-wit: FORTIETH: To have the exclusive power to define, regulate, restrain, repress, license and tax dramshops and to revoke dramshop licenses, and to regulate and control the giving or selling intoxicating liquors at any place or places in such cities: Provided, that for every dramshop license issued by a city of the second class it shall pay to the State the sum of two hundred dollars per annum in quarterly installments, to the county for county purposes the sum of four hundred dollars per annum in quarterly installments, and to any special road district in which such city may be located five hundred and fifty dollars per annum in quarterly installments, and that the balance shall be paid into the treasury of such city for municipal purpqses. Provided, further that no special road district in which such city may be located shall be entitled to any part of the amount paid by such city to the county.”

Then the entire Section 8 is again added, including the 74 subdivisions, the act continuing to read:

“Sec. 8. Every city of the second class shall have power by ordinance, not inconsistent with the Constitution, or any law of this State, or of this article:

“First, Etc.,

“Fortieth: To have the exclusive power to restrain, suppress, regulate, license and tax dranashops, and to revoke dramshop licenses, and to regulate and control the giving away or selling of intoxicating liquors at any place in such cities. Of the amount levied and collected from dramshops there shall be paid to the State and county from each dramshop license the same amount that is paid to the State and county from dramshops in other, cities of the county in which such city of the second class is situated, and to the special road district there shall be paid $275 every six months, the balance to go to the city.”

It is, not out of .place here, to state that it is thus seen that this Act of 1915 contains two subdivisions or clauses, each designated as the fortieth, which are materially different in language and meaning.

The city of Springfield upon becoming a city of the' second class with the charter powers before mentioned fixed the amount of dramshop licenses at $2000 per year, or $500 per, quarter, which sum the city has ever since been collecting from each of its thirty dram-shops. The city has paid the State and county no part of the money so collected.

The petition is in two counts. The first is based upon Section 1 of the Act of 1915, providing for the payment to the State of $200 per annum in quarterly installments; and the second count is bottomed in the fortieth subdivision thereof, providing for the payment to the county the same amount that is paid by licensed dramshops in other cities of the county, and sets out an order of the County Court, made prior to the adoption of local option in that county, fixing dramshop licenses therein at $750 per year, of which one half or $375 was set apart for county purposes.

The commissioners of the city as such constitute the city council thereof, with full power or authority to allow, audit and pay all lawful claims against the same.

The respondents, by their return, set up the following reasons why they should not be compelled to audit and allow relator’s claim:

First: The two parts of the Act of 1915 quoted above are conflicting so that one destroys the other and it is impossible to ascertain the legislative intent.

Second: The Act of 1915 violates Section 28 of Article 4 of the Constitution, in that it provides for the collection and distribution of revenue for State and county purposes, which is not germane to the title of the act.

Third: The Act of 1915 violates section 1 and 10 of Article 10 of the Constitution, as it requires the cities to levy and collect State and county taxes.

Fourth: The first provision found in the Act of-1915 is invalid under section 34 of Article 4 of the Constitution, because the section attempted to be amended is not set forth in full as amended.

Fifth: The history of the passage of the Act of 1915, which is set out in the return, shows that it was the intention of the Legislature to enact the second provision (the one found on page 353. Laws 1915).

Sixth: The last mentioned part of the Act of 1915 violates Sections 53 and 54 of Article 4 and Section 7 of Article 9 of the Constitution in that it is a local and special law and creates a fifth class of cities.

Seventh: Even if the last mentioned part of the Act of 1915 is valid, Creene County is not entitled to any part of -the dramshop license money under it, because there are no other cities in the county wherein there are licensed dramshops.

Upon the incoming of the return the relator demurred thereto and its demurrer being overruled, refused to plead further, whereupon judgment was rendered in favor of the respondents and against the relator. From this judgment relator appeals.

I. Counsel for the respective parties to this controversy have with much ability and learning presented and argued a number of legal propositions found in this record; but in the view we have taken of the case it will be necessary to notice but two or three of them.

'II. It is first insisted by counsel for respondent that Section 1 of the Act of 1915 is so inconsistent with and repugnant to Subdivision 40 of Section 8 of the same act, that both cannot stand, and therefore, the latter under the law must prevail.

conflict!ilaWe There is an irreconcilable repugnancy between Section 1 of the Act of 1915 and Subdivision 40 of Section 8 thereof. This will clearly appear from a brief excerpt taken from each. From the former: “Provided that for every dramshop license issued by a city of the second class it shall pay to the State the sum of two hundred dollars per annum in quarterly installments, to the county for .county purposes the sum of four hundred dollars per annum in quarterly installments, and to any special road district in which such city may be located five hundred and fifty dollars per annum in quarterly installments, and that the balance shall be paid into the treasury of such city for municipal purposes. Provided, further that no special road district in which such city may he located shall be entitled to any part of the amount paid by such city to the county. ’ ’ And from the latter I quote: “Of the amount levied and collected from dramshops there shall be paid to the State and county from each dramshop license the same amount that is paid to the State and county from dramshops in other cities of the county in which such city of the second class is situated, and to the special road district there shall be paid $275 every six months, the balance to go to the city.”

Discussion could add nothing to the clarity of the repugnancy mentioneed.

The insistence mentioned is predicated upon the fact that the legislative journals of the 48th General Assembly show that said Subdivision 40 was offered and adopted as an amendment after the hill had passed the House with said Section 1 constituting a part thereof. That such journals may be resorted to in order to show the history of any piece of legislation is well established not only in this State but is recognized elsewhere. [State v. Burr, 16 N. D. 581, 113 N. W. l. c. 709; People v. Dobbins, 73 Cal. 257, 14 Pac. 860.]

The law is well settled that where there is a irreconcilable conflict between two different parts of the same act, as a rule the last in order of position will control unless there is' some special reason for holding to the contrary, which' does not exist in this case. The authorities so holding are numerous. [Peterson v. People, 129 Ill. App. l. c. 57; Howard v. Bangor & A. R. Co., 29 Atl. 1101; Quick v. Whitewater Twp., 7 Ind. 570; 36 Cyc. 1130; Westport ex rel. v. Jackson, 69 Mo. App. l. c. 153; 26 Am. & Eng. Ency. Law, p. 619, and cases cited; Omaha Real Estate & Trust Co. v. Kragscow, 47 Neb. 592, 66 N. W. 658; Ex parte Hewlett, 22 Nev. 333, 40 Pac. 96; Loper v. State, 84 N. W. 650; Scott v. Railway Co., 38 Mo. App. l. c. 530.]

We are, therefore, clearly of the opinion that said subdivision 40 is in full force and effect, and that said Section 1 is null and void for the repugnancy mentioned.

iicense°P That being true, then how stands the case? That question is easily answered. Said subdivision 40 provides that there shall be paid to the State and county from each dramshop license the same amount that is paid to the State and county from dramshops °^%er cities of the county in which such city is situated and to the special road district $275 every six months. The trouble with giving force and effect to this statute is, there is no other city in Greene County which levies and collects a dramshop license. The record shows that the Local Option Law is in full force and effect in all of said county outside of the limits of the city of Springfield. Therefore, no other city in the county is paying or is required to pay any part of a dramshop license to the State or county, and, consequently, Springfield is only required to pay the same amount as such other cities pay, which is nothing. In other words, the statute has not provided what sum in dollars and cents shall be paid by the city of Springfield to the State and county, but refers to a supposed method, which in fact has no existence, by which those amounts could be ascertained. In brief, there is a legislative omission to fix what part of the dramshop license shall be paid to the State and county, or to designate a means by which that part can be ascertained.

Under those facts neither court nor counsel can say the city of Springfield owes the State of Missouri or Greene County any sum of money whatever, and, therefore, neither mandamus nor any other action will lie against her to compel her to pay over any part of the money collected for said dramshop license.

The remedy rests with the Legislature, and not with the courts.

As Formerly Fixed by county court. III. Counsel for appellant do not question the soundness of the foregoing ruling as an abstract legal proposition, but seek to escape the legal effect thereof by contending that the courts should l°°k to the order of the county court of Greene County made prior to the adoption of the Local Option Law fixing the amount of dramshop licenses in other cities of that county and use it as a means by which to ascertain the amount due the State and county on account of said licenses.

' Obviously this .contention is untenable, for the reason that said order of the county court was but an incident, a means of enforcing or carrying out the provisions of another law, which was, by the adoption of the Local Option Law, abrogated or repealed, and necessarily the incident thereto, the means by which that law was designed to be enforced, fell with the abrogation of the law itself. This would seem to be self-evident.

Under this view of the record, the appellant is not entitled to the relief prayed for, and it would therefore be useless as well as obiter to pass upon tbe numerous constitutional questions presented by tbe record.

For tbe reasons stated, tbe judgment of tbe circuit court is affirmed.

All concur, except Bond, J., absent.