Heinkel v. Toberman

• Decision Date: 13 February 1950
• Docket Number: No. 41782,41782
• Parties: HEINKEL et al. v. TOBERMAN, Secretary of State.
• Court: Missouri Supreme Court

Page 1012

226 S.W.2d 1012

360 Mo. 58

HEINKEL et al. v. TOBERMAN, Secretary of State.

No. 41782.

Supreme Court of Missouri, en Banc.

Feb. 13, 1950.

A. D. Sappington, William W. Beckett, Howard B. Lang, Jr., Columbia, for appellants.

J. E. Taylor, Attorney General, Gilbert Lamb, Assistant Attorney General, C. B. Burns, Jr., Assistant Attorney General, for respondent.

TIPTON, Judge.

The appellants' action seeks to enjoin Walter H. Toberman, as Secretary of State of the State of Missouri, from submitting a referendum to a vote of the people on 'House Committee Substitute for House Bill No. 185,' enacted by the Sixty Fifth General Assembly and approved by the Governor on August 27, 1949, Mo.R.S.A. §§ 8411.2 and note, 8411.6, 8411.10, 8411.33-8411.41. The circuit court dismissed appellants' petition because it failed to state a claim upon which appellants are entitled to obtain injunctive relief.

The statute in question will hereafter be referred to as house bill 185. It provides that, in order to provide funds for the construction and maintenance of roads and highways and to pay the principal and interest on road bonds, a state tax is levied to produce a sum equal to four cents on each gallon of motor fuels for the privilege of driving motor vehicles upon the state highways. This act repeals the present two cent tax on motor fuels. Among other things, this act provides that the state highway commission is authorized to locate and construct low type highways to be known as 'state rural roads'; it is further authorized to 'provide for the expenditure by counties and other political subdivisions, under the supervision and direction of the Commission, and under rules and regulations provided by the Commission for the administration of such supervision and direction, of state rural road funds equivalent to the state revenues derived from one cent (1cents) per gallon of state taxes upon motor vehicle fuels, less' (1) the proportionate share of the cost of collection; (2) the proportionate share of refunds that are authorized by law; and (3) the cost and expense of the state highway commission and the state highway department in administering sections 35 to 43.

Subsequent sections deal with the details of administering and carrying out the act. An attempt was made to pass an emergency clause so as to make the act effective after its approval by the governor but this attempt failed to receive a twothirds vote in each house, as required by section 29, article 3 of our constitution, Mo.R.S.A.

On October 10, 1949, referendum petitions were filed with the respondent and were accepted by him. It is conceded that these petitions are in the proper form and signed by the required number of voters.

The sole issue in this case is whether house bill 185 is the kind of law that is subject to referendum under section 52(a), article 3 of the constitution of 1945. That section reads:

'A referendum may be ordered (except as to laws necessary for the immediate preservation of the public peace, health or safety, and laws making appropriations for the current expenses of the state government, for the maintenance of state institutions and for the support of public schools) either by petitions signed by five per cent of the legal voters in each of two-thirds of the congressional districts in the state, or by the general assembly, as other bills are enacted. Referendum petitions shall be filed with the secretary of state not more than ninety days after the final adjournment of the session of the general assembly which passed the bill on which the referendum is demanded.'

The first thing for us to determine is whether or not house bill 185 is an appropriation law. If it is, then is the state highway department which includes the state highway system a 'state institution'?

Standing alone, house bill 185 is not an appropriation law. It is true it is a bill that does raise funds for the highway department and the state highway system. But there is not one word, phrase or sentence in the bill that would justify construing it as an appropriation law.

Briefly, appellants' contention is that when this bill is read in connection with section 30, article 4 of our constitution, it becomes an appropriation bill.

That section simply means that all sums of money collected from motor vehicle license fees and all taxes from the sale of motor fuels used to drive motor vehicles upon the highways of this state must first be used to pay the cost (1) of collection thereof, (2) of maintaining the commission, (3) of maintaining the highway department, (4) of any workmen's compensation, (5) of the highway retirement pay when provided by law, and (6) of the expenses of the state highway patrol. These items can only be paid from an appropriation act passed by the legislature in the same way any other appropriation act is passed. Of course, the sums so appropriated must be appropriated from the license fees and taxes referred to in this section. Then the balance of the funds collected from the license fees and fuel taxes go into a special fund and stand appropriated without legislative action, first, for the payment of the principal and interest on any state road bonds for the next succeeding twelve months, and then the balance of such fund shall be credited to the state road fund for the purpose of doing whatever is necessary to construct, maintain and repair the various types of roads in our highway system.

In the case of State ex rel. McKinley Pub. Co. v. Hackmann, State Auditor, 314 Mo. 33, 282 S.W. 1007, loc. cit. 1013, in speaking of section 44a, article 4 of the 1875 constitution which, with modifications, is now section 30, article 4, we said:

'This provision makes no attempt to appropriate, without legislative action, the money to pay the maintenance expense of the highway commission. It does appropriate without further legislative action that portion of the money received from automobile license fees which remains after deducting the cost of collecting the tax and maintaining the highway commission, and it appropriates the remainder to the payment of the principal and interest of certain bonds. It makes no attempt whatever to appropriate without legislative sanction the amount needed for the expenses of the commission. Who, therefore, is to determine the amount required to maintain the highway commission? Is this to be determined by the highway commission, unhampered by legislative permission, or by the Legislature in the regular way by an appropriation act?

'Section 19, article 10, of the Constitution of Missouri, expressly provides that no money shall be paid out of the state treasury, except in pursuance of an appropriation by law. This section controls, unless modified by a later constitutional provision. It is true that section 44a, supra, does modify it as to that portion of the automobile license tax to be paid upon the principal and interest of said bonds, but that is the only modification, and there is nothing in section 44a which in any manner conflicts with, or prevents the provisions of, section 19, supra, from controlling with reference to all moneys paid out of the state treasury for the support and maintenance of the highway commission. It thus clearly appears that that portion of the license tax which is to be paid out of the state treasury for the expenses of maintaining the highway commission must, under the express provisions of the Constitution (section 19, supra), be first appropriated by act of the Legislature.'

So, under section 30, article 4 of our present constitution, the cost (1) of collection, (2) of maintaining the commission, (3) of maintaining the highway department, (4) of any workmen's compensation, (5) of a retirement program for the state highway employees, and (6) of the expenses of the highway patrol, must first be appropriated by the legislature out of 'revenue derived from highway users,' including all state license fees and taxes upon motor vehicle fuels. In other words, the expense of these items must be provided out of what is commonly called the motor vehicle license fees and the gasoline tax. If and when house bill 185 becomes effective, the revenue derived from the 4 cent tax on motor fuels, together with the license fees on motor vehicles, must first pay the expense of these items. To do so there must first be an appropriation act passed by the legislature for that purpose. State ex rel. McKinley Pub. Co. v. Hackmann, supra.

House bill 25 of the 65th General Assembly did enact appropriation laws to pay the above enumerated expenses (except item 5, this for the reason the legislature has not yet enacted a retirement law for highway employees). This is the same legislature that enacted house bill 185. It is only after an appropriation act is passed that the balance of the revenue derived from motor vehicle license fees and taxes upon motor vehicle fuels is credited to a special fund and stands appropriated without legislative action for the purposes of paying road bonds and for the construction and maintenance of state highways.

Even if we follow appellants' contention that we must read into house bill 185 section 30, article 4 of the constitution, we are unable to see how this bill could be considered an appropriation bill. The appellants apparently ignore the fact that these six items of expense above mentioned must first be paid out of a fund created in part by the 4...