Emporia Tp. of Lyon County v. Williams
| Decision Date | 06 May 1939 |
| Docket Number | 34335. |
| Parties | EMPORIA TP. OF LYON COUNTY v. WILLIAMS, County Treasurer et al. |
| Court | Kansas Supreme Court |
Rehearing Denied July 8, 1939.
Syllabus by the Court.
The statute dealing with apportionment and distribution of the highway fund must be construed in its entirety with a view of giving effect to legislative intent. Gen.St. 1935, 68-416(2).
A "proviso" is a clause engrafted on a preceding enactment to restrain or modify enacting clause, or to except from its operation something which otherwise would have been within it, or to exclude some possible ground of misinterpretation of it, as by extending it to cases not intended by the Legislature to be brought within its purview.
A "proviso" is generally introduced by the word "provided," but its existence and effect are to be determined rather by its matter and substance than by its form, and such word may, if that be the sense gathered from the whole act, simply explain what had previously been stated in general terms, or direct the manner of doing what was allowed by the context to be done generally.
A provision which follows and restricts an enacting clause general in its scope should be strictly construed, so as to take out of the enacting clause only those cases which are fairly within the terms of the proviso, and the burden of proof is on the one claiming the benefit of the proviso.
Under the provisions of the statute dealing with apportionment and distribution of the highway fund, a county must use not less than 50 percent. of the fund on township roads and bridges and must allocate that fund for use on the roads and bridges of the various townships within the county in the proportion that the mileage of the township roads in the various townships bears to the total mileage of the township roads in the county. Gen.St.1935, 68-416(2), 68-424.
A county is not required, by the statute dealing with the apportionment and distribution of the county and township road fund, to pay over to the townships the amounts allocated for use on the roads and bridges of the various townships but is authorized to use the funds for the construction improvement, reconstruction, and maintenance of township roads and bridges at the option of the county commissioners. Gen.St.1935, 68-416(2), 68-424.
Where the essential purpose of a proceeding is to obtain an authoritative interpretation of a law for the guidance of public officials in their administration of the public business, mandamus is a recognized remedy, notwithstanding that there also exists an adequate remedy at law.
Where the rights of a township were concerned, it could institute a proceeding in mandamus in its own name, and was not required to institute it in the name of the state on the relation of the county attorney or attorney general.
1. Where the rights of a township are concerned it may institute a proceeding in mandamus in its own name, not necessarily in the name of the state on the relation of the county attorney or attorney general.
2. Where the essential purpose of a proceeding is to obtain an authoritative interpretation of a law for the guidance of public officials in their administration of the public business, mandamus, in this state, is a recognized remedy notwithstanding the fact there also exists an adequate remedy at law.
3. Under the provisions of G.S.1935, 68-416(2), the county must use not less than 50 percent of the fund, known as the county and township road fund, on township roads and bridges, and it must allocate that fund for use on the roads and bridges of the various townships within the county in the proportion that the mileage of the township roads in the various townships bears to the total mileage of the township roads in the county. The county is not required to pay over to the townships the amounts so allocated but is authorized to use the funds for the construction, improvement, reconstruction and maintenance of township roads and bridges at the option of the county commissioners.
Original proceeding in mandamus by Emporia Township of Lyon County against Fannie E. Williams, Treasurer of Lyon County, and the Board of County Commissioners of Lyon County, to compel the defendants to pay over fifty percent. of the county and township road fund as allegedly required by statute.
Writ denied.
Owen Samuel, Clarence V. Beck, and Robert H. Hudkins, all of Emporia, for plaintiff.
Jay Sullivan, Co. Atty., and Everett E. Steerman, both of Emporia, for defendants.
This is an original proceeding in mandamus. It is brought by Emporia Township of Lyon county, on behalf of itself and all other townships within that county, to compel the treasurer of Lyon county and the board of county commissioners of that county, to pay over to the townships fifty percent of the county and township road fund in accordance with the alleged requirements of G.S.1935, 68-416 (2).
The issues are joined by the motion for an alternative writ and the answer of the defendants. Plaintiff has moved for judgment on the pleadings. The principal question presented is the correct interpretation of G.S.1935, 68-416(2). The pertinent portion thereof provides: (Italics inserted.)
For brevity and convenience we shall refer to plaintiffs as the townships, and to defendants as the county. The townships contend they are entitled to have 50 percent of the fund transferred to them and that they may expend the fund on township roads and bridges as they deem proper. In that construction of the statute the county does not concur. It contends the statute is mandatory as to it in only the two particulars contained in the proviso. It urges the first mandate is that not less than 50 percent of the fund must be used by it on township roads and bridges, and that the second mandate requires the county to determine the amount used on roads and bridges of the respective townships on the basis directed in the proviso. The county, therefore, contends that otherwise than as restricted by the proviso the use of the fund rests in the option of the county commissioners.
The township stresses mostly the italicized portion of the proviso. The county relies mainly upon the italicized portion of the preceding enactment. The statute must, of course, be construed in its entirety with a view of giving effect to legislative intent. In order to properly interpret such intent we must bear in mind the general purpose and effect of a proviso. In 59 C.J., Statutes, § 638, it is said: ...
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