State ex rel. Greene County v. Gideon

• Decision Date: 22 December 1917
• Parties: THE STATE ex rel. GREENE COUNTY, Appellant, v. J. J. GIDEON, Mayor, and E. F. JAMES et al., Commissioners of CITY OF SPRINGFIELD
• Court: Missouri Supreme Court

199 S.W. 948

273 Mo. 79

THE STATE ex rel. GREENE COUNTY, Appellant, v. J. J. GIDEON, Mayor, and E. F. JAMES et al., Commissioners of CITY OF SPRINGFIELD

Supreme Court of Missouri, First Division

December 22, 1917

Appeal from Greene Circuit Court. -- Hon. Arch A. Johnson, Judge.

Affirmed.

Frank W. McAllister, Attorney-General, S. P. Howell, Assistant Attorney-General, and Warren L. White for appellant.

(1) Relator and respondents agree that the history of the passage of the Act of 1915 shows that it was the intention of the Legislature to enact the second provision found in that bill. Ex parte Helton, 117 Mo.App. 609. (2) It was obviously the intention of the Legislature in 1915 to provide for the payment to the State and county a part of the money derived from dramshop licenses. That intent should be made effective. State ex rel. v. McQuillin, 246 Mo. 534; State ex rel. v. Rippee, 177 Mo.App. 245; State ex inf. v Railroad, 238 Mo. 613; St. Louis v. Christian Bros College, 257 Mo. 541; Asphalt Co. v. Hayward, 248 Mo. 286; Sibley County v. Gibbon, 131 N.W. 786; County v. Aberdeen, 31 N.W. 735. If the county is to receive the same amount as is paid by licensed dramshops in other cities of the county, that means that the county is to receive the amount that has been fixed by an order of record of the county court as the county dramshop license under Sec 7199, R. S. 1909. It was obviously not the intention of the lawmakers that the State and county should be deprived of any part of the dramshop license money; and the fact that there are no other cities in Greene County wherein there are licensed dramshops cannot defeat the intention of the Legislature.

Fred A. Moon for respondents.

(1) Where there is an irreconcilable conflict between two different parts of the same act, the last in order of position must control. Peterson v. People, 129 Ill.App. 57; Howard v. Barger & A. R. Co., 29 A. 1101; Quick v. Whitewater Tp., 7 Ind. 570; 36 Cyc. 1130; Westport ex rel. v. Jackson, 69 Mo.App. 153; 26 Am. & Eng. Ency. Law, p. 619; Real Est. Co. v. Reiter, 47 Neb. 592; Ex parte Hewlett, 22 Nev. 33; Toper v. State, 84 N.W. 650; Scott v. Railroad, 38 Mo.App. 530. (2) If said subdivision 40th were valid and constitutional relator would not be entitled to recover thereunder, for the reason that there were no other dramshops in other cities of Greene County paying a State and county license. (a) The rule of construction prescribed by statute is: "First, words and phrases shall be taken in their plain or ordinary and usual sense." Sec. 8057, R. S. 1909. (b) The universal rule laid down by the courts is that "in the interpretation of statutes words in common use are to be construed in their natural, plain and ordinary signification. It is a very well settled rule that so long as the language used is unambiguous, a departure from its natural meaning is not justified by any consideration of its consequences, or of public policy; and it is the plain duty of the court to give it force and effect." 36 Cyc. 1115; State ex rel. v. Gammon, 73 Mo. 421; State v. Riley, 203 Mo. 187; Henry & Coaltsworth Co. v. Evans, 97 Mo. 55; McFarland v. Railroad, 94 Mo.App. 340; Smith v. Railroad, 143 Mo. 37; Martin v. Hunter, 14 U.S. 326; Railroad v. Clark, 53 Mo. 216; State ex rel. v. Wilder, 206 Mo. 549; Warren v. Barber Co., 115 Mo. 572; State v. Wellott, 54 Mo.App. 315; State v. Hays, 78 Mo. 605; State v. Court, 128 Mo. 427; Johnson v. Railroad, 196 U.S. 1; Moorshead v. Railroad, 203 Mo. 165; 36 Cyc. 1106; Lewis's Sutherland on Statutory Construction (2 Ed.), sec. 487; In re King's Estate, 105 Iowa 320; Randall v. Railroad, 12 S.E. 605; Turner v. Cross, 18 S.W. 578. (c) Courts have nothing to do with the wisdom or policy of a law when the meaning is free from doubt. Lewis's Sutherland on Statutory Construction (2 Ed.), sec. 487; Fishing Co. v. George & Barker Co., 69 P. 439; Clark v. Railroad, 219 Mo. 534; State v. Railroad, 219 Mo. 164; State v. Mills, 161 Mo.App. 185; Donaldson v. Donaldson, 249 Mo. 242.

WOODSON J. Bond, J., absent.

OPINION

WOODSON, J.

This is a mandamus proceeding instituted in the circuit court of Greene County, by the appellant, to compel respondents to allow, audit and pay a claim made by the county to a portion of the dramshop license levied and collected by the City of Springfield.

The trial court decided the case against the county, and in due time and in proper form it appealed the cause to this court.

The facts of the case are these: The city of Springfield is a city of the second class, located in Greene County, and is operating under a commission form of government which was enacted in 1913 (Laws 1913, p. 420), and the respondents are the commissioners thereof. The general powers of such cities are contained in Section 8 of said act, beginning at page 426 and ending at page 439, and are composed of 74 subdivisions. Subdivision 40 of said section is the one involved in this case. In so far as material to this case, the first clause of said Section 8 is as follows:

"Sec. 8. Every city of the second class shall have power by ordinance, not inconsistent with the Constitution, or any law of this State, or of this article:"

And the fortieth subdivision thereof reads:

"Fortieth: To have the exclusive power to restrain, suppress, regulate, license and tax dramshops and to revoke dramshop licenses."

At the time of and for many years prior to the enactment of the act authorizing a commission form of government, local option outside of Springfield was in force in said county.

Subsequently, in the year 1915, the Legislature passed an act amending Subdivision 40 of said Section 8 of the Act of 1913, which reads as follows:

"Be it enacted, etc. Sec. 1, etc. That the fortieth subdivision of Section 8 of an act entitled, . . . be and the same is hereby repealed and that a new subdivision of said section to be numbered Fortieth be and the same is hereby substituted therefor, reading as follows, to-wit: FORTIETH: To have the exclusive power to define, regulate, restrain, repress, license and tax dramshops and to revoke dramshop licenses, and to regulate and control the giving or selling intoxicating liquors at any place or places in such cities: Provided, that for every dramshop license issued by a city of the second class it shall pay to the State the sum of two hundred dollars per annum in quarterly installments, to the county for county purposes the sum of four hundred dollars per annum in quarterly installments, and to any special road district in which such city may be located five hundred and fifty dollars per annum in quarterly installments, and that the balance shall be paid into the treasury of such city for municipal purposes. Provided, further that no special road district in which such city may be located shall be entitled to any part of the amount paid by such city to the county."

Then the entire Section 8 is again added, including the 74 subdivisions, the act continuing to read:

"Sec. 8. Every city of the second class shall have power by ordinance, not inconsistent with the Constitution, or any law of this State, or of this article:

"First, Etc.,

"Fortieth: To have the exclusive power to restrain, suppress, regulate, license and tax dramshops, and to revoke dramshop licenses, and to regulate and control the giving away or selling of intoxicating liquors at any place in such cities. Of the amount levied and collected from dramshops there shall be paid to the State and county from each dramshop license the same amount that is paid to the State and county from dramshops in other cities of the county in which such city of the second class is situated, and to the special road district there shall be paid $ 275 every six months, the balance to go to the city."

It is not out of place here to state that it is thus seen that this Act of 1915 contains two subdivisions or clauses, each designated as the fortieth, which are materially different in language and meaning.

The city of Springfield upon becoming a city of the second class with the charter powers before mentioned fixed the amount of dramshop licenses at $ 2000 per year, or $ 500 per quarter, which sum the city has ever since been collecting from each of its thirty dramshops. The city has paid the State and county no part of the money so collected.

The petition is in two counts. The first is based upon Section 1 of the Act of 1915, providing for the payment to the State of $ 200 per annum in quarterly installments; and the second count is bottomed in the fortieth subdivision thereof, providing for the payment to the county the same amount that is paid by licensed dramshops in other cities of the county, and sets out an order of the County Court, made prior to the adoption of local option in that county, fixing dramshop licenses therein at $ 750 per year, of which one half or $ 375 was set apart for county purposes.

The commissioners of the city as such constitute the city council thereof, with full power or authority to allow, audit and pay all lawful claims against the same.

The respondents, by their return, set up the following reasons why they should not be compelled to audit and allow relator's claim:

First: The two parts of the Act of 1915 quoted above are conflicting so that one destroys the other and it is impossible to ascertain the legislative intent.

Second: The Act of 1915 violates Section 28 of Article 4 of the Constitution, in that it provides for the collection and distribution of revenue for State and county purposes, which is not germane to the title of the act.

Third: The Act of 1915 violates section 1 and 10 of Article 10 of the Constitution, as it requires the cities to levy and collect State and county taxes.

Fourth:...