The State ex rel. Liberty Township of Stoddard County v. State Highway Commission

• Citation: 287 S.W. 39,315 Mo. 747
• Decision Date: 08 October 1926
• Docket Number: 26903
• Parties: The State ex rel. Liberty Township of Stoddard County v. State Highway Commission
• Court: Missouri Supreme Court

287 S.W. 39

315 Mo. 747

The State ex rel. Liberty Township of Stoddard County v. State Highway Commission

No. 26903

Supreme Court of Missouri

October 8, 1926

Peremptory writ denied.

Wammack & Welborn for relator.

(1) It is not material whether the work for which the money relator seeks to recover was furnished under the McCullough-Morgan Law or the Centennial Road Law. The pleadings show that it was furnished by relator after the Centennial Law took effect, and that the work was done under respondent's supervision and was accepted by respondent as a part of State Highway No. 25. These facts entitle relator to have the sum refunded to it in cash. Laws 1921 (1st Ex. Sess.) p. 164 secs. 33 and 34. (2) The law requires that respondent reimburse relator in money for sums expended by relator after the Centennial Law took effect in constructing any part of the state highway system under respondent's supervision as soon as funds in the apportionment to relator out of the state road funds are available for that purpose. Laws 1921 (1st Ex. Sess.) p. 165, sec. 34; Laws 1925, p. 289, sec. 17. (3) By said Section 34 it is provided that where a county or other subdivision has expended funds in constructing a part of the state highway system, respondent shall refund such sum out of the apportionment of the state road funds. The word "shall" is always construed to be mandatory depending upon the subject of the sentence and the context with which it is related. Even the word "may" is interpreted to be mandatory when referring to "a power given to public officers, which concerns the public interest and the rights of third persons, who have a claim de jure that the power shall be exercised in this manner." Hannibal & St. Joe Ry. Co. v. State Board of Equalization, 64 Mo. 304; State ex rel. v. King, 136 Mo. 318; Spauling v. Suss, 4 Mo.App. 551. (4) In the construction of a particular statute, or in the interpretation of any of its provisions, all acts relating to the same subject, or having the same general purpose, should be read in connection with it, as together constituting one law. The endeavor should be made to ascertain the uniform and consistent purpose of the Legislature. Grimes v. Reynolds, 184 Mo. 688; Curtis v. Sexton, 252 Mo. 245; State ex rel. v. Gmelich, 208 Mo. 159; State ex rel. Special Road Dist. v. Barry County, 302 Mo. 288; State ex inf. v. Koeln, 270 Mo. 191; State ex inf. v. Standard Oil Co., 218 Mo. 355; State ex rel. v. Patterson, 207 Mo. 144.

North T. Gentry, Attorney-General, and L. Newton Wylder, Lue C. Lozier and Edgar Shook for respondent.

(1) The road in question was built under the McCullough-Morgan Law and not under the Centennial Road Law. Secs. 1, 2, Centennial Road Law, Laws 1921 (1st Ex. Sess.) p. 133; State ex rel. v. Imel, 280 Mo. 560; Reagan v. County Court, 226 Mo. 89; Sec. 14, Laws 1921 (2nd Ex. Sess.) p. 37; McCullough-Morgan Law, Art. 11, Chap. 98, R. S. 1919; State v. Gmelich, 208 Mo. 159; State ex rel. v. State Tax Comm., 282 Mo. 213; Grimes v. Reynolds, 184 Mo. 679; State ex rel. v. Patterson, 207 Mo. 144; State ex rel. v. Standard Oil Co., 218 Mo. 355; In re Kinsella Estate, 293 Mo. 556. (2) Any refund or reimbursement to relator should be in additional roads pursuant to Section 33 of the Centennial Road Law, and should not be made under Section 34 of said law. (3) A discretion is vested in the State Highway Commission as to when refunds will be made. Secs. 4, 26, 33, 30, 32, 24, 40, 34, 37, Centennial Road Law, Laws 1921, 1st Ex. Sess.; Laws 1925, pp. 286, 90, 289, 326; Sec. 14, Laws 1921 (2nd Ex. Sess.) p. 37. (4) The discretion vested in the State Highway Commission will not be controlled by the courts. State ex rel. v. Stone, 269 Mo. 342; State ex rel. v. Hudson, 226 Mo. 265; 22 Cyc. 879; Kerr on Injunctions (2 Am. Ed.) p. 4; High on Injunctions (4 Ed.) sec. 1326.

Atwood, J. Blair, C. J., Ragland, White and Otto, JJ., concur; Walker, J., dubitante; Graves, J., absent.

OPINION

ATWOOD

This is a direct proceeding in mandamus to compel the State Highway Commission of Missouri to refund in cash the sum of $ 31,643.31 to Liberty Township, Stoddard County, Missouri, on account of money placed to the credit of said highway commission by said township to be used in the construction of a highway between Dexter and Bernie in said township, and by said highway commission so used. Respondent entered its appearance and waived service of the alternative writ. Relator filed a motion for judgment on the pleadings which necessitates our stating them somewhat at length.

The petition, in addition to formal allegations, asserts that the part of the "state highway system" in Stoddard County, Missouri, lying between Dexter and Bernie and extending south to the Stoddard-Dunklin county line, is a part of State Highway No. 25, lies within the boundaries of Liberty Township, and that prior to the passage and approval of the act of the General Assembly in 1921, commonly known as the Centennial Road Law, bonds of said Liberty Township for road purposes in the sum of $ 145,000 had been issued and sold, and on January 24, 1923, Liberty Township had funds in the sum of $ 36,250.37 arising from said bond issue; that at the request of the Missouri State Highway Commission and upon its promise that the same would be refunded to relator as provided by Section 34 of the Centennial Road Law, relator deposited in the First National Bank of Dexter, Missouri, on January 24, 1923, to the credit of the Missouri Highway Commission -- project 211-A, the aforesaid $ 36,250.37, and between January 24, 1923, and September 17, 1924, the State Highway Department expended of said funds $ 31,643.31 in grading and hard-surfacing that part of said "state highway system" within said county and within Liberty Township, lying between the city of Dexter and the city of Bernie, the same being a part of State Highway No. 25; that the construction of said part of said highway for which said funds were used was under the supervision and according to the plans of said State Highway Department, as provided by said Centennial Road Law; that said road has been completed and accepted by said State Highway Department as a part of the "state highway system;" that the apportionment of Liberty Township and Stoddard County of the state road funds as provided by the Centennial Road Law is sufficient to repay said money to relator, and that funds arising from the state road funds are and were at the time of making the requisition hereinafter referred to available for making said repayment; that relator and the County Court of Stoddard County have made requisition upon respondent for the repayment of said sum of $ 31,643.31 to relator, but respondent has refused and still refuses to honor said requisition or to cause said money to be repaid to relator.

Respondent's answer admits the formal allegations of relator's petition; admits that the part of the "state highway system" in the county of Stoddard lying between Dexter and Bernie and extending south to the Stoddard-Dunklin county line of State Highway No. 25, lies within the boundaries of Liberty Township, and that prior to the passage and approval of the Centennial Road Law, bonds of said Liberty Township for road purposes in sum of $ 145,000 had been issued and sold, and that on January 24, 1923, Liberty Township had funds in the sum of $ 36,250.37 arising from said bond issue; admits that on January 24, 1923, relator deposited in the First National Bank of Dexter, Missouri, to the credit of respondent said sum of $ 36,250.37, as part payment of the estimated cost of constructing Federal Aid Project No. 211A, and between January 24, 1923, and September 17, 1924, respondent expended of said funds $ 31,643.31 in the construction, grading and hard-surfacing of said project and that such construction was under respondent's supervision and according to its plans, and that said project has been completed and is now a part of the "state highway system" in Stoddard County lying between Dexter and Bernie, being a part of State Highway No. 25; admits that the funds in the state road fund to the credit of Stoddard County (under the provisions of Section 26 of the Centennial Road Law for this biennial period, were at the time of the making of the requisition hereinafter referred to, and now are, sufficient to repay to relator said sum of $ 31,643.31; admits that relator and the County Court of Stoddard County have made requisition upon respondent for the repayment to relator of said sum, and that respondent has refused to honor said requisition or to cause said sum to be repaid to relator. Respondent denies that said sum of $ 31,643.31 was advanced by relator at the request of respondent, or upon respondent's promise that the same would be refunded to relator in cash as provided in Section 34 of the Centennial Road Law; denies that said project was constructed under the provisions of said Centennial Road Law or under Section 34 thereof; denies that relator has any legal right to have said sum repaid to it in cash, or that relator has any legal right to demand reimbursement for said sum at this time; and denies that it is the clear, legal and ministerial duty of respondent to honor the aforesaid requisition at this time and to certify same to the State Auditor for his warrant and for payment out of the state road fund. Further answering, respondent alleges that now, and at the time of the making of said requisition, certain portions of the State Highway in Stoddard County designated in said Centennial Road Law have not yet been constructed, graded or surfaced or placed under contract, and that portions of said "state highway system" in said county formerly built by civil subdivisions in said county under the provisions...