State ex rel. Russell v. Highway Commission

• Decision Date: 28 September 1931
• Docket Number: No. 30923.,30923.
• Citation: 42 S.W.2d 196
• Parties: THE STATE EX REL. JAMES N. RUSSELL, M.C. POLFER AND F.E. THOMPSON v. STATE HIGHWAY COMMISSION.
• Court: Missouri Supreme Court

42 S.W.2d 196

THE STATE EX REL. JAMES N. RUSSELL, M.C. POLFER AND F.E. THOMPSON v. STATE HIGHWAY COMMISSION.

No. 30923.

Supreme Court of Missouri.

Court en Banc, September 28, 1931.

Mandamus.

PEREMPTORY WRIT DENIED.

L.E. Durham, W.C. Hock and Henry S. Conrad for relators.

(1) In construing the language of the Constitution, the words used, unless they are technical, are to be understood in their usual and ordinary sense, and it is a cardinal rule of construction that effect should be given, if possible, to each word, clause and sentence. Castilo v. Highway Commission, 312 Mo. 264; State ex rel. v. Dirck, 211 Mo. 580; State ex rel. v. Railroad, 263 Mo. 689. (a) Acts creating boards such as the State Highway Commission should be liberally construed so as to carry into effect the purposes thereof. 29 C.J. 564; Miller v. Washington County, 143 Tenn. 488, 226 S.W. 199; Merchants Bank v. Yancey, 270 Fed. 834. (b) The rule is that the same meaning will be given to the same words occurring in different parts of the Constitution, unless it appears from the whole that a different meaning was intended in some part, alleged to be an exception. 12 C.J. 706; Epping v. Columbus, 117 Ga. 263; Miller v. Dunn, 72 Cal. 461; Green v. Weller, 32 Miss. 650; Laws 1929, p. 345, sec. 1; p. 349, sec. 7; Laws 1921, p. 133, sec. 4; p. 140, sec. 19; p. 142, sec. 23. (c) In the absence of constitutional or statutory limitations, a highway or road district may embrace lands in a city, town or village. 29 C.J. 560; Nall v. Kelley, 120 Ark. 277, 179 S.W. 486; Mobile etc. Railroad Co. v. Fraser, 169 Ill. App. 210; Woodall v. Highway Commission, 176 N.C. 377. (2) The amendment makes provision for two classes of state highways: First, those comprising "the state system of primary and secondary highways as designated and laid out under existing law." Second, additional state highways comprising (a) what are known as "traffic relief roads" in the congested traffic areas adjacent to the cities of St. Louis and Kansas City; (b) the supplementary state highway system in each county of the State, known as "farm-to-market roads;" (c) 300 miles additional roads to connect state highways as designated and laid out under existing law with other such highways or with highways in adjoining states, and also in order to facilitate and expedite the movement of through traffic, which may be designated as "highways for facilitating and expediting the movement of through traffic;" (d) state park roads and connections thereof with the Centennial System. The phrase "and also in order to facilitate and expedite the movement of through traffic" is in addition to provisions for highways theretofore enumerated and is unrestricted as to location within the State and includes both rural districts and cities and is qualified only by the limitation of 300 miles, and that its purpose shall be for facilitating and expediting through traffic. The word "also" means and is equivalent to "in addition to." Cantwell v. Crawley, 188 Mo. 55; Pitts v. Howard, 208 Ala. 380, 94 So. 495; State v. Erickson, 75 Mont. 429, 244 Pac. 287; 2 C.J. 1164, note 47; Stockton v. Maddock, 10 Fed. 134. (3) The constitutional amendment as it is applied to Highway No. 40 in question. (a) There is now a road or highway from the easterly city limits of Kansas City, through Leeds to 31st Street, constructed of concrete twenty feet in width under the supervision of the State Highway Department with the funds of the County of Jackson and of the United States under what is known as the "McCullough-Morgan Road Law." (b) The petition herein alleges that the widening of said part of U.S. No. 40 is necessary for facilitating and expediting through traffic, as said highway has now become dangerous to both person and vehicle. (c) Respondent's specific objections to said improvement as set forth in its return: Because said part of U.S. Highway No. 40 does not connect the Missouri highway with highways of adjoining states, does not connect highways as designated and laid out under existing law with such highway, and does not facilitate and expedite the movement of through traffic. This constitutes no defense in this proceeding, but is one properly directed to the State Highway Commission in the exercise of its discretion under the constitutional amendment. Because said constitutional amendment authorizes only the building of new and additional highways for the purposes stated therein and does not authorize the widening of an existing highway. This construction is unreasonably narrow. If the Commission has jurisdiction to make the improvement in question, then the mere existence of a twenty-foot slab heretofore laid thereon under state supervision does not operate as a barrier to the jurisdiction of the Commission. (4) U.S. Highway No. 40 from the easterly corporate limits of Kansas City, through Leeds to 31st Street, is a part of the state system of highways. (a) The Centennial Road Law defines a state highway as "A highway constructed or maintained at the cost of the State or constructed with the aid of state funds or of the United States Government funds, or any highway included by authority of law in the state highway system." Sec. 3, Centennial Road Law (Laws 1921, 1st Ex. Sess., p. 133). (b) Respondent admits in its return that that part of U.S. Highway No. 40 in question was constructed under the supervision of the State Highway Commission, with funds of Jackson County and of the United States Government, and that said highway is now and since 1923, has been under maintenance of the State Highway Commission. State ex rel. v. State Highway Commission, 315 Mo. 759. (5) The application of the petitioners herein to the State Highway Commission for the widening of U.S. Highway 40 from the easterly corporate limits of Kansas City, through Leeds to 31st Street, sets forth strong grounds for relief — so much so as, under ordinary circumstances, to create an estoppel. But that is not the issue before this court. It is a question of jurisdiction and not one of discretion.

John W. Mather, Jean Paul Bradshaw, John C. Collet and B.F. Boyer for respondent.

(1) In the determination of petitioners' motion for judgment on the pleadings all material allegations contained in the return are admitted by petitioners to be true and stand as the facts of the case. State ex rel. Copeland v. Wurdeman, 295 Mo. 458, 245 S.W. 551; State ex inf. v. Railroad, 237 Mo. 338; State ex rel. v. Simmons Hdw. Co., 109 Mo. 118; State ex inf. v. Goffee, 192 Mo. 670; Sullivan v. Bank of Harrisonville, 293 S.W. 129; State ex rel. v. Shipman, 290 Mo. 65, 234 S.W. 60; State ex inf. v. Railroad, 192 Mo. 670; Kavanaugh v. Sup. Council of Royal League, 138 S.W. 234; State ex rel. v. Higgins, 84 Mo. App. 531; Sternberg v. Levy, 159 Mo. 612. (2) The constitutional amendment of 1928 cannot be construed to authorize the use of the proceeds of the seventy-five million dollar bond issue in the construction of streets or highways within the city limits of Kansas City or St. Louis, because: (a) The fundamental purpose of the court in construing a constitutional amendment is to declare the intent of the makers of the law. State v. Becker, 235 S.W. 1022; State ex rel. v. McGowan, 138 Mo. 187; State ex rel. Hussman v. St. Louis, 5 S.W. (2d) 1084; State v. Adkins, 284 Mo. 694. (b) In determining such intent the proceedings of the constitutional convention or the body drafting the amendment, the general spirit of the times and the prevailing sentiments among the people, the history of the amendment and long established rules of policy are material. In re Oppenstein, 289 Mo. 421; People v. Harding, 53 Mich. 479; Prigg v. Commonwealth of Penn., 16 Peters, 539, 10 L. Ed. 1087; Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 68; McMullen v. Shepherd, 133 Md. 157, 104 Atl. 424; Lowe v. Summers, 69 Mo. App. 652; State ex rel. Miller v. Taylor, 22 N.D. 362, 133 N.W. 1046; Hamilton v. St. Louis County Court, 15 Mo. 3. (c) The history of this amendment clearly showing the intent of those who drafted it and the people in adopting it is definitely and positively alleged in respondent's return and is now admitted by petitioners to be the true history of the amendment. (d) The amendment, when considered as a whole, cannot be fairly construed to authorize the expenditure of any part of the seventy-five-million dollar bond issue within the city limits of Kansas City or St. Louis, and to so construe it would result in the repeal by implication of Article 4, Section 46, of the Constitution, which prohibits the expenditure of public road money within incorporated cities, towns or villages. State ex rel. v. County Court, 142 Mo. 575; State ex rel. v. St. Louis, 216 Mo. 95. (e) A constitutional amendment should not be so construed as to repeal parts of the existing Constitution unless such a construction is clearly necessary to give effect to the plain intent of the amendment. Lowe v. Summers, 69 Mo. App. 652. (3) The provision of the amendment relating to the construction of 300 miles of additional highways does not authorize the widening of U.S. Highway No. 40 within the city limits of Kansas City with funds arising from the seventy-five-million dollar bond issue for these further reasons: (a) The paragraph of the amendment relating to the construction of the so-called 300-mile system provides for the location, construction and maintenance of new and additional highways. These words have a definite meaning which does not mean widen. Ford v. Erskine, 83 Atl. 455; State v. Farrelly, 36 Mo. App. 287. (b) Where a word having a definite meaning such as "widen" is used in one part of a constitutional amendment, the court cannot by construction insert that word at another place so as to enlarge or restrict the meaning of the amendment. State v. Thompson, 5 S.W. (2d) 57; Dworkin v. Caledonian Ins. Co., 285 Mo. 342. (c) A change of language in separate provisions of a law is prima-facie...