State ex rel. Reed v. Garrett

76 Mo. App. 295 | Mo. Ct. App. | 1898

Biggs, J.

The relators seek in this action of mandamus to compel the respondents, as justices of the county court of Pemiscot county, to make an order submitting to the voters of the county a proposition to remove the seat of justice of the county from the, town of Gayoso to the town of Hayti. It was averred by the relators that on the fifth day of July, 1898, a petition, signed by one fourth of the qualified voters of Pemiscot county and asking for the submission of the question of said removal, was presented to the county court of the county, and that the respondents as justices thereof refused to make the order.

In answer to the alternative writ the respondents admitted that the petition for the removal was presented to them as alleged; that it contained the signatures of the requisite number of voters of the county, and that they refused to make the order submitting the question of the proposed removal to the voters of the county. They assigned as a reason for their action that prior to the presentation of this petition, to wit,’ at the May term, 1898, of the county court, a like petition had been presented to the court asking for the submission to the voters of the county a proposition to remove the seat of justice of the county from the town of Gayoso to the city of Caruthersville; that this petition was signed by one fourth of the voters of the county, and'that in compliance therewith the respondents as justices aforesaid, by an order entered of record, directed the submission of this proposition of removal to the voters of the county at the next general election to be held on the eighth day of November, 1898, and that having made said order as they were in duty bound to do, they considered their jurisdiction in the premises exhausted, and that they possessed no authority under the law to submit a second proposition of removal to be voted on at the same election.

The circuit court refused, on motion of relators, to strike out the return as offering no legal excuse for disobeying the commands of the alternative writ, and thereupon the matter being submitted on the pleading’s, the court refused to issue a peremptory writ of mandamus, and dismissed the proceedings. The relators have appealed.

The sole question for decision is whether the statute governing the removal or change of county sites authorizes the submission of two propositions of removal at the same election. Section 3136 of the Revised Statutes of 1889 reads: “Whenever one fourth of the voters of any county shall petition the county court for a removal of the seat of justice of such county to any other designated place, the court shall make an order directing that the proposition to remove such seat of justice to the place named in the petition be submitted to the qualified voters of the county at the next general election to be held therein, and shall also order that public notice be given of such proposed removal by publication thereof in some newspaper printed in the English language in said county, if any such' there shall be, and also by directing the sheriff of said county to put up, in hand-bill form, printed copies of such order, in not less than three of the most public places in each township in said county, not less than thirty days before the election at which such proposition is to be voted upon, all of which notices shall be published and continued, so far as the circumstances will permit, up to the day of such election.” It must be admitted that as to the question under discussion the statute is ambiguous. Prior to the revision of 1865, the corresponding section to the one quoted, provided that an order for the removal of the seat of justice of a county could only be made upon the petition of three fifths of the taxable inhabitants of the county. This requirement necessarily prevented the submission of more than one proposition of removal at the same election, for the obvious reason that two petitions containing the requisite number of signers could not be obtained. In 1865 the section was amended so as to require the signatui’es of one fourth of the voters of the county, thus making it possible to secure the requisite number of signers to two or more petitions. Therefore as to the question involved the amended statute becomes doubtful and ambiguous, and in construing it resort must be had to the rules which govern in the construction of doubtful or ambiguous statutes. The object of all statutory construction is to get at the true meaning or intention of the legislature, and that meaning should be adopted which accords best with the general purpose of the act.

The general rules for determining this from ambiguous statutes are that a construction “which must necessarily occasion great public and private mischief must never be preferred to a construction which will occasion neither, or not in so great a degree, unless the terms of the instrument absolutely require such preference. Of two constructions, either of which is warranted by the words of the amendment of a public act, that is to be preferred which best harmonizes the amendment with the general tenor and spirit of the act amended. A statute may be construed contrary to its literal meaning, when a literal construction would result in an absurdity or inconsistency, and the words are ' 'susceptible of another construction which will carry out the manifest intention.” Sutherland on Statutory Construction, section 323. That the power (under certain restrictions) to remove a county site ought to be vested in the people of the county is obvious. Our state is comparatively new, and conditions change rapidly. An established seat of justice may have been the most convenient and accessible twenty years ago, but on account of changed conditions it may have to-day become so undesirable as a county site as to make the selection of a new location almost a public necessity. With this in view the statute was enacted. In order that there might not be unnecessary or groundless agitations of such questions, the law required one fourth of the voters of the county to favor a certain change of location before an election could be held. The fact that so many citizens sign such a petition was considered by the legislature to warrant the inference that the objections to the established seat of justice were not without foundation, and that the proposed new location would be more suitable.

When such a petition is presented and the order of election made, we think that it was the intention of the law that the particular proposition of removal should stand or fall on its own merits. To allow rival towns or locations to have submitted, at the same time, another proposition of removal, would have the effect of dividing the. vote, thus making it impossible, in many cases, for the people to rid themselves of an undesirable seat of justice, and thereby defeating the object of the statute. As stated by Mr. Sutherland, a construction of a statute which will occasion public mischief or inconvenience ought to be avoided, unless the language employed will not permit of a different interpretation.

"With the concurrence of the other judges the judgment of the circuit court will be affirmed. It is so ordered.