Gasconade County v. Gordon

• Citation: 145 S.W. 1160,241 Mo. 569
• Parties: GASCONADE COUNTY v. JOHN P. GORDON, State Auditor, and JAMES COWGILL, State Treasurer
• Decision Date: 28 March 1912
• Court: United States State Supreme Court of Missouri

145 S.W. 1160

241 Mo. 569

GASCONADE COUNTY v. JOHN P. GORDON, State Auditor, and JAMES COWGILL, State Treasurer

Supreme Court of Missouri

March 28, 1912

Writ denied.

Clarence Baxter, W. H. Barnett, and Irwin & Peters for relator.

(1) The Stamp Act fund provided by section 10229, chapter 91, Revised Statutes 1909, is now a part of the General State Road Fund provided for by article 5 of chapter 121, Revised Statutes 1909, and is to be distributed according to said Act of 1909 because said Act of 1909 providing for a general State road fund and as to how it shall be apportioned and distributed being later in time and inconsistent with that portion of the Stamp Act passed in 1907, provided for in chapter 91, repeals that portion of said Stamp Act fund in so far as it relates to the manner of distribution. Hence the said Stamp Act fund must be brought into the general State road fund under the provisions of article 5, ch. 129, and distributed as therein provided. Sec. 11914, art. 5, ch. 121, being laws 1909, p 768. This section is broad and all-inclusive and includes all money, however derived, for the improvement of public roads and that part of section 10229, Revised Statutes relating to the Stamp Act fund, which provides that the same shall be distributed in like manner as State school funds are now distributed, is repealed by implication, as it is absolutely inconsistent with the latter provision relative to the general State road fund, which provides the same to be apportioned to certain counties in proportion to the assessed valuation of properties therein. The General State Road Fund Act creates no fund; but only consolidates all other funds and directs that they shall be credited to the general State road fund and directs its method of distribution to certain counties in proportion to the assessed valuation. And as this later act is inconsistent with a prior act as to the method of distribution, this prior Stamp Act is repealed in so far as it is in conflict with the late act. 7 Words & Phrases, pp. 65 to 84; Hingle v. State, 24 Ind. 34; Railroad v. Nordyke, 27 Ind. 95; Black on Interpretation of Laws, p. 118; Endlich on Interpretation of Statutes, p. 308, sec. 230; State v. Giverance, 55 Mo. 378; State v. Bennett, 102 Mo. 356; Railroad v. Cudmore, 103 Mo. 634. (2) The entire fund must be paid to the counties that have done work or provided a fund for making road improvements, and the counties that have not provided any fund for such improvement and have in no way availed themselves of the benefit of this State Road Fund Law cannot participate in this distribuion, but can only participate in the distribution of funds arising or being on hand after they have seen fit to avail themselves of the law by appropriating funds for improving the roads in their counties. Sec. 11916, R. S. 1909. (3) A subsequent statute which is clearly repugnant to a prior one necessarily repeals the former, though it does not do so in express terms. State ex rel. v. McDonald, 38 Mo. 529; Mauker v. Faulhaber, 94 Mo. 440; State ex rel. v. Clark, 54 Mo. 216. Nor is it necessary that the subsequent general law should express words of repeal, as any form of exceptions showing a clear intention to repeal a special law will be sufficient. Railroad v. Shambaugh, 106 Mo. 557; State v. Daley, 49 Mo. 184; State ex rel. v. School Board, 131 Mo. 505; 2 Sutherland on Stat. Const., sec. 443; United States v. Freeman, 3 How. 550; Converse v. United States, 21 How. 463; State v. Clark, 54 Mo. 216; Bryson v. Johnson Co., 100 Mo. 85. A general statute will repeal a special statute where they are so inconsistent that they can not stand together. Railroad v. Cudmore, 103 Mo. 634; State v. Bennett, 102 Mo 356; State ex rel. v. Frazier, 98 Mo. 426.

Elliott W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General for respondents.

(1) The Act of 1907 creating a special "Road Fund," and the act of the same session creating a "General State Road Fund," relate to separate objects and subjects and are not in conflict. Laws 1907, p. 373; sec 91, R. S. 1909; McFarlane v. Railroad, 175 Mo. 422; State ex rel. v. Henderson, 160 Mo. 208; State v. Swaggerty, 203 Mo. 527; Hamilton v. Court, 15 Mo. 20; Court v. Griswold, 58 Mo. 175; Bevier v. Watson, 113 Mo.App. 511. Between the Stamp Act, expressly creating a special fund for its incidental proceeds, and providing that each county in the State shall unconditionally and equally with all others, share the benefits thereof, and the other general act creating a general fund derived from general and certain other specific sources and limiting its benefits to certain counties and purposes, there is not, according to fundamental canons of construction, any inconsistency or conflict. (2) If there is a conflict between the general and special act, it is an approved rule of construction that if a special provision, applicable to a particular subject, be inconsistent with a general law, the special will prevail. State v. De Bar, 58 Mo. 395; State v. Green, 87 Mo. 587; State ex rel. v. Foster, 187 Mo. 610; Ackerman v. Green, 201 Mo. 244; 36 Cyc. 1151. Or otherwise expressed, the rule is that, where two provisions, one of which is special and particular and certainly includes the matter in question, and the other general, which, if standing alone, would include the same matter, and thus conflict with the special act or provision, especially when such general and special acts or provisions are contemporaneous, the special act must be taken as intended to constitute an exception to the general act or provision. Ruschenberg v. Railroad, 161 Mo. 70; State ex rel. v. Hostetter, 137 Mo. 636; State ex inf. v. Dabbs, 182 Mo. 366; Jaicks v. Merrill, 201 Mo. 106; State v. Bryant, 90 Mo. 535; Assn. v. Delano, 108 Mo. 217; Ex parte Neet, 157 Mo. 533. (3) The Act of 1909 did not operate to repeal any part of the Stamp Act. If both acts can, by any reasonable construction, be construed together, both will be sustained. Evans v. McFarland, 186 Mo. 723; State ex rel. v. Wells, 210 Mo. 620; McGrew v. Railroad, 177 Mo. 542; Manker v. Faulhaber, 94 Mo. 430; State ex rel. v. Walbridge, 119 Mo. 383. This construction is peculiarly applicable when the prior enactment is a special law and the latter a general one. State ex rel. v. Slover, 134 Mo. 19; State ex rel. v. Dabbs, 182 Mo. 359; McVey v. McVey, 51 Mo. 420; State ex rel. v. Convent, 116 Mo. 580. Furthermore, it is necessary to a repeal by implication that the objects of the two statutes be the same. If they are not, both statutes will stand, although they may refer to the same subject. 36 Cyc. 1077; State v. Shour, 196 Mo. 202; State ex rel. v. Wilder, 199 Mo. 487; State v. Clarkson, 59 Mo. 152; State v. Noland, 111 Mo. 501. These titles are of value in determining the scope and meaning of the acts themselves. State ex rel. v. Fort, 210 Mo. 527; Cytron v. Transit Co., 205 Mo. 699. It is quite clear that if the Act of 1909 had the effect of repealing that part of the Stamp Act which creates a special fund and provides its own method of distribution, it also operated to repeal, for the same reasons, the act pertaining to the Road and Canal Fund. That the Act of 1909 was not a revision of the whole subject-matter and did not repeal any part of the Stamp Act seems too clear to warrant discussion. State xe rel. v. Patterson, 207 Mo. 129. (4) By subsequent legislation the force and existence of both statutes and funds are recognized. A construction of a statute by the Legislature, as indicated by the language of subsequent enactments, is entitled to great weight. 36 Cyc. 1142, 1146; State ex rel. v. Gordon, 197 Mo. 62; Railroad v. Shacklett, 30 Mo. 557; State v. Pitts, 51 Mo. 135. State v. Bengsch, 170 Mo. 108; Laws 1911, sec. 68, p. 19; Laws 1911, sec. 26 p. 10; State ex rel. v. Gordon, 197 Mo. 62.

GRAVES, J. Valliant, C. J., Woodson, and Ferriss, JJ., concur. Lamm, Kennish and Brown, JJ., dissent.

OPINION

In Banc

Mandamus.

GRAVES, J.

The county of Gasconade, as relator, by its petition for mandamus (averring and showing a special interest in the subject-matter of the suit), seeks to compel the State Auditor and the State treasurer to place certain funds arising from the sale of stamps under the provisions of chapter 91, Revised Statutes 1909, into what is denominated the "General State Road Fund," a fund created by section 11914 of article 5, chapter 121, Revised Statutes 1909. Said county also seeks to compel the said respondents to place in the same fund a certain other road fund which arises from licenses upon motor vehicles. Nor is relator content with these demands, but it seeks further to have these funds when thus assembled paid out only to such counties of the State as may have appropriated funds from their treasury for the permanent improvement of public roads, rather than to all the counties of the State.

Respondents concede that the motor vehicle fund should go to the "General State Road Fund," and in their return aver that it has been placed there, and that relator has received its proportionate part thereof under their construction of the provisions of article 5, chapter 121, Revised Statutes 1909. Respondents deny that the Stamp Act fund belongs to the "General State Road Fund." They also say that whilst they would be glad to pay out the motor vehicle fund, now in the "General State Road Fund," in the manner suggested in the petition of relator, yet other counties in the State are demanding their proportionate part thereof, and for that reason they ask a construction of this law by the court.

It should be noted that the relator sues for itself and some twenty-two other counties in like situation. Relator and these other counties, in the petition named, had before ...