State ex rel. State Highway Commission v. Wiggins

• Decision Date: 08 June 1970
• Docket Number: No. 54383,54383
• Citation: 454 S.W.2d 899
• Parties: STATE ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Duane C. WIGGINS et al., Respondents.
• Court: Missouri Supreme Court

Page 899

454 S.W.2d 899

1 ERC 1434

STATE ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Duane C. WIGGINS et al., Respondents.

No. 54383.

Supreme Court of Missouri, En Banc.

June 8, 1970.

Robert L. Hyder, chief Counsel, Jefferson City, Terry C. Allen, Asst. Counsel, Sikeston, for appellant.

Joe Welborn, Briney, Welborn & Spain, Bloomfield, for respondents.

STOCKARD, Commissioner.

Appellant State Highway Commission seeks an injunction against respondents Duane C. and Gonnie Wiggins from operating what is alleged to be an unlawful junk yard.

Appellant alleged that respondents operate a junk yard within 1,000 feet of the nearest edge of the right-of-way of Missouri State Highway 25; that the junk yard was not lawfully in existence on August 4, 1966, in that it was 'within 200 feet of the right-of-way of a state road' and was not screened; that the junk yard is not licensed to operate; and that after having given notice to 'correct the violation of law within 60 days' respondents have failed to do so.

Respondents alleged that they operated 'an automobile business' which had been in operation many years prior to August 4, 1966, and that on that date and at no time thereafter were any junked automobiles or parts maintained within 200 feet of State Highway 25. Respondents also alleged that Senate Bill 9, Laws of Missouri 1965, page 905 (now §§ 226.650--226.720, V.A.M.S., and hereafter referred to by section numbers) is unconstitutional for several reasons, at least one of which was not ruled on in Deimeke v. State Highway Commission, Mo., 444 S.W.2d 480.

At the conclusion of all the evidence the trial court found 'the issues against (appellant) and in favor' of respondents, and it decreed that the 'petition for injunction be denied and dismissed.'

We are first confronted with the issue of whether appellate jurisdiction is in this court. If so, it is solely because the case is one 'involving the construction of the Constitution * * * of this state.' Art. V, § 3, Constitution of Mo., V.A.M.S.

A constitutional issue may be presented by a defendant in the trial court, and in the event of a ruling thereon adverse to the appellant, the issue may, if preserved for appellate review establish exclusive appellate jurisdiction in this court. For example, see Ivey v. Ayers, Mo., 301 S.W.2d 790. Appellant contends jurisdiction in this case is in this court because by finding 'the issues' in favor of respondents, the trial court sustained respondents' contention that §§ 226.650--226.720 are unconstitutional. Respondents filed no motion for new trial because they won in the trial court, but in the event the factual issues are decided against them on this appeal they have attempted to keep the constitutional issues alive by briefing them.

As a general rule, in the absence of evidence to the contrary, a general judgment for one party involves a finding in that party's favor on all issues properly before the court. 49 C.J.S. Judgments § 441. The issue of the constitutionality of §§ 226.650--226.720 was before the circuit court, and we necessarily conclude that the trial court held adversely to appellant on that issue. It may be that this appeal can be deciced without reaching the constitutional issue, but jurisdiction once acquired is not lost because the appeal may be disposed of on other grounds. City of St. Louis v. Flynn, Mo., 386 S.W.2d 44; Haley v. Horjul, Inc., Mo., 281 S.W.2d 832. We mention one further matter to demonstrate the soundness of the above result. If this case should be transferred to the court of appeals, and if that court agreed with respondents' contentions on the issues not involving the constitutionality of the statutes, then the case could be disposed of by that court. But if the court of appeals found those issues in accord with the contentions of appellant, then the challenge to the constitutionality of the statute must be ruled, an issue outside the jurisdiction of the court of appeals. The case would then have to be transferred to this court. However, this court has exclusive appellate jurisdiction of the case or no jurisdiction at all; not exclusive jurisdiction of certain issues of a case. Exclusive appellate jurisdiction of a case cannot depend upon how certain issues of that case are decided, with appellate jurisdiction in this court if decided one way but jurisdiction in the court of appeals if decided the other way. We conclude that appellate jurisdiction of this case is in this court.

It is provided in § 226.670, that no person shall establish or operate a junk yard, any portion of which is within 1,000 feet of the 'nearest edge of the right-of-way of any interstate or primary highway' without first obtaining a license from the State Highway Commission. § 226.680 limits the granting of licenses to four specified categories, and § 226.690 provides that junk yards 'lawfully in existence on August 4, 1966,' but which are within 1,000 feet of and are visible from the highway are to be screened, if feasible, by the State Highway Commission at its expense, and the Commission is empowered to acquire such lands or interest in lands as necessary for such screening.

Prior to the enactment of §§ 226.650--226.720, the statutory provision regulating junk yards was § 229.180, now repealed, which provided that 'No auto wrecking yard or junk yard shall be established, maintained or operated within two hundred feet of any state or county road in this state, unless such auto wrecking yard or junk yard is screened * * *.' Violation of this statute was made a misdemeanor. § 229.190.

Appellant called as a witness Duane C. Wiggins who admitted that he operated a junk yard. However, he further testified that prior to August 4, 1966, he measured a line parallel to the highway and 200 feet 'from the edge of the pavement,' and that from then on he placed and kept all of his 'salvagable vehicles' back of that line. However, his testimony indicates that on August 4, 1966, he was operating a junk yard, a portion of which was within 200 feet of the 'nearest edge of the right-of-way' for State Highway 25. There was an attempt on the part of the appellant to show that after August 4, 1966 respondents had kept or maintained junk within 200 feet of the edge of the pavement, but that evidence was not persuasive. It certainly did not compel such a conclusion, and the trial court did not so find. There is no compelling reason why this court should not defer to the findings of the trial court in this respect. The essential question is one of law, and that is whether the 200 feet referred to in § 229.180 is to be measured from the 'nearest edge of the right-of-way' or from the pavement, or from some other part of the road.

The basic rule of construction of a statute is to seek the intention of the Legislature, Julian v. Mayor, Councilmen and Citizens of City of Liberty, Mo., 391 S.W.2d 864, which should be ascertained from the words used, if that is possible, Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122, and in doing so the words should be given their plain and ordinary meaning so as to promote the object and manifest purpose of the statute. City of St. Joseph v. Hankinson, Mo., 312 S.W.2d 4. The word 'road' is a generic term, Inhabitants of Windham v. Cumberland County Commissioners, 26 Me. 406, and has no fixed legal meaning. Southern Ry. Co. v. Combs, 124 Ga. 1004, 53 S.E. 508. Depending upon the purpose of the statute in which the word is used it has been held to include ferries and bridges, Almond v. Gilmer, 188 Va. 822, 51 S.E.2d 272; the improved portion of a highway, Elms v. Flick, 100 Ohio St. 186, 126 N.E. 66; Armour & Co. v. Yoter, 40 Ohio App. 225, 178 N.E. 596; but not bridges over large streams, Hedrick v. Summers County Court, 71 W.Va. 732, 77 S.E. 359; nor approaches to bridges, Robinson v. Board of Chosen Freeholders of Passaic County, 91 N.J.L. 154, 102 A. 359; nor ditches, slopes or shoulders, Norfolk & W. Ry. Co. v. Faris, 159 Va. 205, 157 S.E. 819. The term 'to the road' in a deed describing a line as extending to the road was held to mean the center of the road in Goodeno v. Hutchinson, 54 N.H. 159.

The Legislature of this State has used the term 'road' with different meanings. In § 229.010 it is provided that all 'public roads' shall not be less than 30 feet in width. This necessarily refers to the width of the public right-of-way. However, in § 229.030 it is provided that 'public roads' shall be cleared of all obstructions therein 'that hinder or interfere with travel or traffic thereon, and shall be made firm, and the surface thereof shall be kept in a reasonably smooth and level condition.' Here the term obviously refers to the traveled portion of the highway. It is also clear that the Legislature has recognized that the terms 'right-of-way' and 'road' are not necessarily the same. § 229.110 requires the trimming of a hedge fence 'situated along or near the right of way of any public road,' and in § 229.150 it is made a crime to willfully obstruct or damage a 'public road' 'by turning water upon such road or right of way, or by throwing or depositing brush, trees, stumps, logs, or any refuse or debris whatsoever, in said road, or on the sides or in the ditches thereof, or by fencing across or upon the right of way of the same.'

Recognizing that the Legislature has used the term 'road' with different meanings, we must attempt, by examining the total circumstances and the purpose or object of the legislation, to determine the intent of the Legislature when it used the term in § 229.180.

The obvious purpose of § 229.180 was to require that junk yards be screened from the view of the persons using the road, or that the portion of a junk yard nearest to a road be located not less than 200 feet from persons normally using the road. This is evident from the provision in the statute that when a junk yard was required to be screened, the screen should be 'of sufficient height to...