Raymore Special Road Dist. v. Huber

• Decision Date: 30 May 1908
• Citation: 111 S.W. 472,212 Mo. 551
• Parties: RAYMORE SPECIAL ROAD DIST. OF CASS COUNTY et al. v. HUBER, President, et al.
• Court: Missouri Supreme Court

111 S.W. 472

212 Mo. 551

RAYMORE SPECIAL ROAD DIST. OF CASS COUNTY et al. v. HUBER, President, et al.

Supreme Court of Missouri, Division No. 1.

May 30, 1908.

1. HIGHWAYS—ROAD DISTRICTS—STATUTES.

Act April 14, 1905 (Laws 1905, p. 282 [Ann. St. 1906, §§ 9696vv1-9696vv15]), authorizing the county courts of the several counties to divide the territory in their respective counties into road districts, authorizing the improvement of the roads by means of special assessments, directing the setting aside to the credit of the district of the portion of the revenues for working the public roads that may be raised by direct taxation against property lying therein, etc., is not applicable to counties having adopted township organization, for it and the township organization act cannot be harmonized, except on the theory that there are two independent schemes for road work, one for counties under township organization and one for other counties, and it does not by implication repeal the township organization act.

2. STATUTES—IMPLIED REPEAL.

Repeals by implication are not favored by the law.

Appeal from Circuit Court, Cass County; Nick M. Bradley, Judge.

Mandamus by the Raymore special road district of Cass county by G. B. Simmons and others, commissioners, against A. M. Huber, president, and others, composing the township board of Raymore township of Cass county, to compel defendants to order the trustee of the township to pay over to the county treasurer of the county certain funds. From a judgment for defendants, plaintiffs appeal. Affirmed.

Allen Glenn, for appellants. Chas. W. Sloan, for respondents.

GRAVES, J.

Plaintiffs are an alleged body politic, styled "Raymore Special Road District of Cass County, Missouri," and its three commissioners. Defendants constitute the township board of Raymore township, in Cass county, Mo., a political subdivision of said county—one of the municipal townships of said county. Plaintiffs filed their petition and application in the circuit court of Cass county for a writ of mandamus against defendants, whereby "said plaintiffs ask the court to grant, issue, and award a peremptory writ of mandamus to said defendants, the township board of Raymore township, compelling and commanding them, the said township board, to order the trustee of said township to pay over to the county treasurer of Cass county, Mo., said funds, to wit, all the road funds of said township for the use of plaintiffs as commissioners of said Raymore special road district, and to turn over and deliver to said commissioners all tools and implements belonging to the road districts of said township, and to recognize said Raymore special road district as a body politic as aforesaid and these plaintiffs as commissioners thereof, and for such orders in the premises as may be proper and meet." The petition previously pleads all facts necessary to show the creation of a special road district under an act of the Legislature approved April 14, 1905 (Laws 1905, p. 282 [Ann. St. 1906, §§ 9696vv1-9696vv15]), and avers that said special road district so created included all the territory embraced in the municipal township of Raymore. Whether it contains more territory is not averred. The defendants entered their appearance, waived the formal issuance of the alternative writ, so that the petition may be taken as and for the alternative writ. Defendants then moved to quash the alternative writ of mandamus, for the alleged reason: "Because said writ of mandamus does not state facts sufficient to constitute a cause of action." This motion to quash was sustained, and judgment entered against plaintiffs. From this judgment, plaintiffs in due form and in due time appealed.

The real question involved is whether or not the act of the Legislature approved April 14, 1905, is applicable to counties having adopted township organization. We should have stated that by the alternative writ it appears that Cass county, prior to the creation of the "Raymore special road district, of Cass county, Mo.," had adopted township organization, and at the time was operating under such law. To get at the question presented an analysis of the act of 1905, supra, is required. It appears to be an independent and new act, but makes no direct provision for the repeal of any other law or laws. Sections 1 to 13, inclusive, contain provisions for the organization of special road districts, as well as provisions for the grading and improvement of public roads within the district. The method of procedure is given in detail. The cost of such improvements is to be paid by special tax bills issued against the land of the district according to its appraised value. This cost may be all paid at once, or may be extended over a period of five years. The commissioners are authorized to issue bonds in the name of the road district, but these bonds shall be paid out of special tax bills issued during the time. The plans given in these 13 sections of the act are very much like the plans adopted for street improvements. To set this portion of the act out more in detail would be at the expense of brevity and serve no good purpose. As to the size of the special road district, section 1 of the act provides: "Said district shall contain at least two thousand acres of land of contiguous territory and may be commensurate with a municipal township, and if laid out along any thoroughfare may be of any length deemed necessary and advisable except that every district shall be included wholly within the county organizing it." From this provision it will be noticed that a special road district may extend from one end of a county to the other, and in so doing traverse and cross several different municipal townships. We then have sections 14 and 15, as follows:

"Sec. 14. Whenever any road district shall be organized under the provisions of this act the county clerk shall set aside to the credit of said road district the portion of the revenues for working the public roads that may be raised by direct taxation against property lying therein, according to any existing law or subsequent enactment, and said revenue shall be spent by said board of commissioners for keeping any road within said district in repair or for paying for any other needed work. Likewise shall a proper apportionment of any license taxes and poll taxes and city revenue raised and set aside to any special road district organized under article ten (10) of chapter fifteen (15) of the Revised Statutes of Missouri of 1899, be made by the county court and turned over to the commission provided for by this act. Any overseer or road commissioner who shall be such under any other law at the time of the organization of the road district shall turn over to such commission any tools, graders, scrapers or implements of any kind in his possession which may (be) by a proper apportionment belong to such district. Said commission shall have power to contract for the working or improving of said road in any manner that to them may seem best, and to pay for the same out of such revenues. Said commission may out of such revenues pay the engineer for his estimates and specifications, except when made by the state highway commissioner or his assistants, and any other expenses for which provision is not by this act otherwise made.

"Sec. 15. All poll taxes in any such road district shall be paid in money and placed to the credit of said road district, and shall be collected as other personal taxes."

Section 16 is simply an emergency clause.

In State ex rel. v. Gordon et al., 197 Mo. 55, 94 S. W. 987, we undertook to analyze and distinguish the various road acts of this state, and to determine the question whether or not article 10, c. 151, Rev. St. 1899 (Ann. St. 1906, pp. 4394-4402), and the acts amendatory thereto, applied to counties having township organization, and we...