Sales v. Barber Asphalt Pav. Co.

• Decision Date: 19 February 1902
• Citation: 66 S.W. 979,166 Mo. 671
• Parties: SALES v. BARBER ASPHALT PAV. CO. et al.
• Court: Missouri Supreme Court

66 S.W. 979

166 Mo. 671

SALES v. BARBER ASPHALT PAV. CO. et al.

Supreme Court of Missouri.

February 19, 1902.

MUNICIPAL OFFICERS — CITY ENGINEER — STATUTE — REPEAL — EFFECT — CONSTRUCTION — LEGISLATIVE INTENT.

Rev. St. 1899, § 5537, provided that there should be appointed by the mayor certain officers, including a city engineer. Section 5508 gives a city power by ordinance to provide for the appointment of all officers not otherwise provided for. Laws 1901, p. 60, repeals section 5537, and enacts a substitute of the same number, in which the city engineer is omitted; and the same act, on page 61, provides that "there shall also be such other officers as may be provided by ordinance." The same legislature enacted a statute (Laws 1901, p. 74) creating a board of public works, and authorizing such board to appoint the city engineer. Neither section 5541, prescribing the general duties of the engineer, nor sections 5663, 5664, and 5686, prescribing specific duties of such officer, were changed. After the act of 1901, p. 74, was pronounced unconstitutional, the city of St. Joseph adopted an ordinance creating the office of city engineer, and providing for his appointment by the mayor. Held, that the legislature of 1901 did not intend to abolish the office of city engineer, but merely to change the appointing power to the board of public works, and, the act so providing having failed, an appointment by the mayor as provided by the ordinance is valid.

In banc. Appeal from circuit court, Buchanan county; A. M. Woodson, Judge.

Action by Mary A. Sales against the Barber Asphalt Paving Company and others. From a judgment for plaintiff, defendants appeal. Reversed.

Kendall B. Randolph, H. M. Ramey, C. F. Strop, Scarritt, Griffith & Jones, and R. A. Brown, for appellants. Brown & Dolman, for respondent.

SHERWOOD, J.

1. The trial court, upon final hearing, perpetually enjoined defendants from doing any work under a certain contract for street improvement and under Ordinance 2647, and from issuing any tax bills against plaintiff's land, or beclouding the title of the same, etc. The correctness of this decree defendants deny, and have appealed to this court in order here to challenge its correctness.

In the revision of 1899 (volume 2), under the title of "Cities, Towns and Villages," there was section 5537, which provided that "in all such cities there shall be a city clerk, city engineer, city assessor, city counselor and city comptroller, who shall be appointed by the mayor, by and with the advice and consent of the common council, and shall hold their office for the term of two years unless sooner removed, and who shall perform such duties as may be prescribed by this article or any ordinance of the city." This section, as shown in the margin, has been in existence since 1889 (and before), and was known as "Section 1284." That section created the offices of city clerk, city engineer, city assessor, city counselor, and city comptroller, who were to be appointed by the mayor, who were to perform such duties as might be prescribed by article 3 of chapter 91, or any ordinance of the city. In 1901 (Laws of that year, page 60) the legislature repealed that section, and in lieu thereof substituted the following section of the same number: "In all such cities there shall be a city clerk, city assessor and city counselor, who shall be appointed by the mayor, by and with the advice and consent of the common council, and shall hold their office for the term of two years unless sooner removed, and who shall perform such duties as may be prescribed by this article or any ordinance of the city." This new section only mentioned the offices of city clerk, city assessor, and city counselor. The same statute also repealed section 5538 of the same chapter (Rev. St. 1899), and enacted as a substitute a section of like number (Laws 1901, p. 61). That section relates to and creates the offices of city attorney, judge of police court, city auditor, city treasurer, and city comptroller. The section concludes by saying, "There shall also be such other officers, servants and agents of the corporation as may be provided by ordinance, who shall perform such duties as may be prescribed by ordinance." The statute in question also repeals section 5548 of the same chapter (Rev. St. 1899), and enacts a new section of the same number (Laws 1901, pp. 61, 62), which new section relates to the duties of a comptroller, and is a mere duplicate of the section repealed. But these were all the sections which were repealed by the act of March 13, 1901; section 5541 of the revision of 1899 being left unmentioned and untouched by the repealing act of 1901. That section reads this way: "Sec. 5541. City Engineer. The city engineer shall superintend the construction of all public works ordered by the common council; shall make out plans, specifications and estimates thereof, and do the surveying and engineering ordered by the city, and perform such other duties as may be prescribed by ordinance." Now, if there is anything well settled in statutory construction, it is this: that where a repealing statute expressly repeals certain sections of a statute by numbers, or a specified portion of another act, or even repeals one clause of a certain section, it follows that in the judgment of the legislature no further repeal was necessary or intended. Suth. St. Const. § 327. To the like effect is State v. Morrow, 26 Mo., loc. cit. 141. If the legislature had intended to have abolished the office of city engineer altogether, they surely would not, while and when repealing other and adjacent sections on the same and the next preceding pages, have omitted to repeal, by number, section 5541 which prescribed the duties of such officer. And we may summon further aids and further rules of statutory construction in following after the meaning of the legislature in the present instance. Thus the rule in pari materia is applicable here. "All consistent statutes relating to the same subject, and hence briefly called statutes in pari materia, are treated prospectively, and construed together as though they constituted one act. This is true whether the acts relating to the same subject were passed at different dates, separated by long or short intervals, at the same session, or on the same day." Suth. St. Const. § 283. And "A statute must be construed with reference to the system of which it forms a part. And statutes on cognate subjects may be referred to, though not strictly in pari materia." Id. § 284. Further on the learned author, discussing and discoursing upon the same subject, says: "Where enactments separately made are read in pari materia, they are treated as having formed in the minds of the enacting body parts of a connected whole, though considered by such a body at different dates, and under distinct and varied aspects of the common subject. Such a principle is in harmony with the actual practice of legislative bodies, and is essential to give unity to the laws and connect them in a symmetrical system. Such statutes are taken together and construed as one system, and the object is to carry...