State Ex Inf. Pope v. Mansfield Special Road District
| Decision Date | 14 July 1923 |
| Parties | THE STATE ex inf. JOHN T. POPE, Prosecuting Attorney, ex rel. A. W. OBERHOLSER et al., v. MANSFIELD SPECIAL ROAD DISTRICT et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Wright Circuit Court. -- Hon. C. R. Skinker, Judge.
Reversed.
N. J Craig and Curtis & Vandeventer for appellant.
(1) Mere inconsistency in two acts will not necessarily operate to effect the repeal of a municipal charter. The same principle would apply in the present case. 28 Cyc. 255; State v. Mobile, 24 Ala. 701, 706; Kopcynski v Schriber, 161 N.W. 238; Wood v. Election Comm., 58 Cal. 561; Garrett v. Abbey, 47 La. Ann. 287; State v. Kerston, 118 Wis. 287. (a) Repeal of municipal charters, by implication, is a doctrine which meets with special disfavor in our courts. The prior statute will only be terminated when it is wholly irreconcilable with the former. State v. Kerston, 118 Wis. 287; Wood v Election Comm., 58 Cal. 561; Green v. Clarke, 56 N. J. L. 62; Fish v. Brannon, 23 N. J. L. 484; People v. Highland Park, 88 Mich. 653; 28 Cyc. 255; Dillon on Municipal Corporations (5 Ed.) secs. 233, 234; State ex rel. v. Huff, 105 Mo.App. 354. (b) Repeals, by implication, are not favored, but the courts, if possible, should so construe a prior and subsequent act that both shall be operative. State ex rel. v. Bishop, 195 Mo.App. 30; State ex rel. v. Clarke, 275 Mo. 95; Nichols v. Hobbs, 197 S.W. 260; Gasconade Co. v. Gordon, 241 Mo. 569; Davidson v. Schmidt, 146 Mo. 368. (2) No state shall pass any law impairing the obligation of contracts. U. S. Constitution, art. 1, sec. 10; Mo. Constitution, art. 2, sec. 15; State ex rel. v. Railroad, 130 Mo. 243; Seibert v. Lewis, 122 U.S. 284; Moore v. Otis, 275 F. 747; Edwards v. Kearzey, 96 U.S. 595, 607; Home Tel. Co. v. Sarcoxie Co., 236 Mo. 114; State v. Miller, 50 Mo. 129. (a) The laws in force at the time a contract is made enters into and becomes a part thereof, and subsequent legislation changing that law, so as to affect the provisions of the contract by lessening the remedy of the contracting parties, is unconstitutional, and cannot affect vested rights. Moore v. Otis, 275 F. 747; Hicks v. Cleveland, 106 F. 459; Padgett v. Post, 106 F. 600; Edwards v. Kearzey, 96 U.S. 595, 607; 5 McQuillin on Mun. Corp. p. 4971; Seibert v. Lewis, 122 U.S. 284. (3) The judgment in this action is not responsive to the pleadings and is one that cannot be rendered in this kind of an action. High, Extraordinary Legal Remedies (3 Ed.) p. 600; Pease v. State, 208 S.W. 162; Com. v. Grimm, 255 Pa. 40; St. Louis v. Wright Con. Co., 210 Mo. 491; Germo Mfg. Co. v. Combs, 229 S.W. 1072. (4) The judgment is inconsistent in its provisions, in that it ousts the officers from their offices and the district from its franchises and then by a redeeming clause seeks to leave the corporate existence and the officers for certain purposes. It is necessary to the validity of a judgment that it should be certain and definite, or be capable of being made so by proper construction. 23 Cyc. 671. (5) Where a statute directs the performance of a certain thing in a particular way, it forbids by implication every other manner of performance. Taylor v. Comm., 186 N.W. 485; Smith v. Bach, 191 P. 14; Bank v. Board of Education, 205 Ill.App. 57; Ex parte Arascada, 189 P. 619; Dicersey v. Smith, 103 Ill. 378, 42 Am. Rep. 14; Winfield v. Railroad, 153 N.Y.S. 499, 168 A.D. 351; State v. Crawford, 162 N.W. 717; State v. Sweaney, 270 Mo. 685; 36 Cyc. 1122.
John T. Pope and John T. Sturgis for respondents.
(1) It is argued that Mansfield Road District having been organized when Wright County was not under township organization and in accordance with the laws then existing and applicable to that county at that time, then no change in law, either by direct legislative act or by the act of the county in choosing another form of county government, could deprive such road district of its then existing powers and rights. This is manifestly not the law, except so far as such change in the law tends to impair the obligations of contracts already lawfully entered into. Municipal corporations are the creatures of legislative power, and their powers, rights, and privileges may be changed or abolished at will, subject only to the one limitation that valid contracts cannot thus be impaired. 1 Dillon on Municipal Corporations (5 Ed.) sec. 92, p. 142; Harris v. Bond Co., 224 Mo. 664, 689. When counties choose to adopt Township Organization, then they choose to change the laws to conform to that mode of government. (2) If valid bonds have been issued, they must be paid. Relators are not seeking to destroy this road district if there are powers and duties for it to perform. These relators are only concerned with and are seeking to oust defendants from the exercise of certain powers which it no longer possesses, and particularly from demanding and receiving the road taxes levied by the township board. (3) That quo warranto is the proper remedy to oust and deprive a corporation from exercising specified powers and franchises, wrongfully claimed and exercised by it, and to keep such corporation within its rightful powers and franchises without abolishing it entirely, is the settled law. 32 Cyc. 1425, 1449; State ex inf. v. Mo. Pac. Ry., 206 Mo. 28; 22 R. C. L. 670; State ex inf. v. Fleming, 158 Mo. 567. (4) The defendant can point to no statute authorizing it to receive the taxes levied by the township board for road purposes. It can only be argued that the taxes levied by the township board are a substitute for and take place of the taxes levied by the county court in other counties. When the Legislature made provision for a county to change its form of government to township organization, it made no provision for this substitute tax, levied by the township boards, to be paid to the special road districts; and the courts cannot supply this legislation.
This is an action in quo warranto to oust from office the appellants as commissioners of Mansfield Special Road District in Wright County. Upon a hearing in the circuit court a writ of ouster was granted, from which judgment this appeal has been perfected.
In June, 1909, the Mansfield Special Road District was organized in Wright County under the provisions of Article 10, Chapter 151, Revised Statutes 1899, Laws 1903, p. 260. These statutes, with certain amendments not material here, are now Sections 10800, 10801 and 10829, Revised Statutes 1919. Appellants and their predecessors are the commissioners of the special road district, and as such in the exercise of all the powers conferred upon them by the laws referred to. In November, 1920, Wright County changed its form of government and adopted township organization, as provided by Chapter 121, Revised Statutes 1919, and the same became operative in March, 1921. Aside from the prosecuting attorney the respondents constitute the board of directors of Pleasant Valley Township under township organization. The Mansfield Special Road District is within said township. The matter at issue is to determine the effect of the adoption of township organization upon the legal existence of the special road district and the consequent right of the appellants to continue to exercise the duties of commissioners of the same. More concretely, does the adoption of township organization clothe the respondents, who are the officers of Pleasant Valley township, with the power theretofore possessed by the commissioners of said special road district to receive and expend the money collected as road taxes in said district; or is that power retained by the commissioners? If the latter, then this writ should be denied.
However, other facts, preliminary in character perhaps, but nevertheless vital in the determination of the matter at issue, demand consideration before a discussion of the question can be had as to the effect of the adoption of township organization upon the legal existence of the special road district and the continued exercise of the powers of its commissioners.
In August, 1917, in conformity with a statute (Laws 1917, sec 88, p. 472) authorizing the procedure, the Mansfield Special Road District issued and sold to the public its bonds in the sum of twenty thousand dollars, which were to mature serially at the rate of one thousand dollars per year for twenty years, the last bond maturing twenty years after their issuance. Said bonds which have not matured are outstanding and unpaid obligations of the district. Annually since the issuance of said bonds the commissioners of the road district have, under the authority of Section 91 of said act, levied and collected a direct tax on the property of the district for the payment of the interest or the principal of the bond becoming due. The validity of this procedure has been determined by this court in Harris v. Compton Bond Co., 244 Mo. 664, 149 S.W. 603, and need not be further considered except as the power thus exercised may require a review in connection with the other powers conferred upon the commissioners. In addition to the foregoing outstanding obligations of the special road district, it is alleged by the appellants in their return and it is not denied in the argument filed by the respondents,...
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