State v. Gordon

• Decision Date: 19 June 1906
• Parties: STATE ex rel. HOWARD et al. v. GORDON et al.
• Court: Missouri Supreme Court

94 S.W. 987

197 Mo. 55

STATE ex rel. HOWARD et al. v. GORDON et al.

Supreme Court of Missouri, Division No. 1.

June 19, 1906.

HIGHWAYS—HIGHWAY DISTRICTS—STATUTES —CONSTRUCTION.

Rev. St. 1899, c. 151, art. 10, and acts amendatory thereto, providing for the organization of special road districts and the creation of a board of commissioners, with exclusive control over the highways and the repair thereof in the district, when considered in connection with the history of the legislation as embodied in Rev. Laws 1825, p. 688, and Rev. St. 1845, p. 544, and previous acts, and in connection with Acts 1901, p. 237, amending chapter 151, and providing that nothing therein shall be construed as altering any law which may be in force in counties which have adopted township organization, does not apply to counties having township organization as authorized by chapter 168, Rev. St. 1899, and the acts amendatory thereto, first enacted in 1872, and re-enacted in 1879, pursuant to Const. 1875, art. 9, §§ 8, 9, authorizing the Legislature to provide by general law for township organization.

Appeal from Circuit Court, Vernon County; J. B. Johnson, Special Judge.

Application for a writ of mandamus by the state, on the relation of W. D. Howard and others, against W. F. Gordon and others, to compel respondents to turn over certain property to the relators. From a judgment sustaining a motion to quash the alternative writ, relators appeal. Affirmed.

Scott & Bowker, for appellants. Homer M. Poage and Irvin Gordon, for respondents.

GRAVES, J.

Relators, who constitute the commissioners of "The Nevada Special Road District" in Vernon county, Mo., bring this action of mandumus to compel respondents, who constitute the township board of Center township, in said county, to turn over to them five-sixths of $1,200 and five-sixths of certain other personal property alleged to be held by said respondents for the road districts of said Center township. The petition was filed at the May term, 1905, and the alternative writ issued. Respondents filed motion to quash alternative writ, which being by the court sustained, relators appealed to this court.

The alternative writ is lengthy, and, in substance, the facts recited therein, which were taken from the petition, are as follows: That on November 8, 1898, Vernon county adopted the township organization law, and from that time on has been and still is acting under that law; that on January 17, 1905, at an election held for that purpose, article 10 of chapter 151, Rev. St. 1899, was duly adopted by the voters in a special road district composed of congressional sections 19 to 36, inclusive, in Washington township (being congressional township 36 of range 31), and congressional sections 1 to 30, inclusive, in Center township (being congressional township 35 of range 31), and also congressional sections 1, 2, 11, 12, 13, 14, 23, 24, 25, and 26 in Deerfield township (being congressional township 35 of range 32), and also congressional sections 23, 24, 25, 26, 35, and 36 in Lake township (being in congressional township 36 of range 32), all in Vernon county, Mo., being a district eight miles square; that there was in said district a city containing 7,461 inhabitants, the city of Nevada; that said district created as above, and composed of the territory as above indicated, organized according to law under the name of "The Nevada Road District"; that the relators were the duly appointed commissioners of said road district, W. D. Howard being chairman, H. M. Duck, treasurer, and D. L. Thornton, secretary; that the respondents were the duly elected and qualified members of the township board of Center township, five-sixths of which territory was included in said road district; that said township board through its treasurer, C. A. Yater, had and held as a road and highway fund of said township the sum of $1,200 in money; that said township board also held a lot of tools and machinery for working the roads of said Center township; that the relators had demanded five-sixths of said money and five-sixths of said tools and machinery, which demand was refused by respondents; and the said alternative writ closed with the usual order to deliver the property and money or to appear and show cause why the same should not be done. The motion to quash the alternative writ challenges, first, the sufficiency of the facts recited; and secondly, the failure of the relators to state and allege that they had no other adequate remedy. The foregoing sufficiently sets out the pleadings and facts for all necessary purposes.

The principal question presented is whether or not article 10, c. 151, Rev. St. 1899, and acts amendatory thereto, apply to counties which have adopted or may adopt what is known as the "Township Organization Law," being chapter 168, Rev. St. 1899. If not, then the motion to quash the alternative writ was properly sustained on that ground alone, and it is not necessary to seek further. We are of opinion that article 10, supra, does not apply to counties having township organization. It is true that article 10 of chapter 151 has for its subject and relates to roads, highways, and bridges, as also does article 14 of chapter 168. In fact, all of chapter 151 relates to roads and highways and article 10 to the organization of special road districts. Article 14 of chapter 168 is the road law in counties having township organization. In reaching the conclusion, we have reached, as above, we have noted the origin of the several road statutes, and what seems to us the legislative intent at the time, as appears from the statutes themselves. The first reasonably complete draft of chapter 151 appears in Rev. St. 1845, p. 544, although crude fragments thereof previously appeared in the statutes of 1825 (2 Rev. Laws, p. 688), and even in previous acts. Chapter 168, including article 14 thereof, first appeared, in substantial form as now, in the acts of 1871-72, at pages 179 to 211, inclusive, which is the original township organization law; the act being approved March 18, 1872. Express constitutional authority for a township organization law does not appear until the Constitution of 1875, in sections 8 and 9 of article 9 thereof, although there was no constitutional inhibition against such a law, and the act of 1871-72, neither in spirit nor letter, was violative of constitutional provisions. In 1879, the act of 1871-72 was practically re-enacted (Sess. Acts 1879, p. 218), and this, with the subsequent amendments thereto, constitutes the present chapter 168, or the township organization law. From an examination it will be seen that chapter 151 was first adopted when the...