The State ex rel. Moberly Special Road District v. Burton

• Citation: 222 S.W. 844,283 Mo. 41
• Parties: THE STATE ex rel. MOBERLY SPECIAL ROAD DISTRICT, Appellant, v. C. R. BURTON et al., Judges of County Court
• Decision Date: 04 June 1920
• Court: United States State Supreme Court of Missouri

222 S.W. 844

283 Mo. 41

THE STATE ex rel. MOBERLY SPECIAL ROAD DISTRICT, Appellant, v. C. R. BURTON et al., Judges of County Court

Supreme Court of Missouri, Second Division

June 4, 1920

Appeal from Randolph Circuit Court. -- Hon. A. W. Walker, Judge.

Reversed and remanded (with directions).

Willard P. Cave for appellant.

(1) The return of respondents pleads a single defense, viz: That Sec 10594, R. S. 1909, was repealed by Sec. 106, p. 477, Laws of 1917; it is admitted by respondents that there is no specific repeal of Section 10594, but they assert it is repealed by implication by Sec. 36, p. 457, Laws of 1917. (2) A repeal by implication is not favored in law, and the specific repeal of one section of a statute raises a clear implication that no further repeal was intended. State v. Morrow, 26 Mo 131; State v. Jaeger, 63 Mo. 403; Manker v Faulhaber, 94 Mo. 430. (3) Repeals by implication are not favored, and are only allowable where a later statute is so repugnant and irreconcilable with a former one that both cannot stand together. State ex rel. Gordon v. Hopkins, 87 Mo. 519; State ex rel. Martin v. Wofford, 121 Mo. 61. (4) A subsequent act will not impliedly repeal a former one, where the two acts are so irreconcilably inconsistent. State ex rel. Younger v. Stratton, 136 Mo. 423; Donnell v. Lee, 101 Mo.App. 191; Lang v. Calloway, 68 Mo.App. 393; City of Lamar v. Adams, 90 Mo.App. 35. (5) The special law prevails over general provisions. 36 Cyc. 1151; Folk v. St. Louis, 250 Mo. 135; Manker v. Faulhaber, 94 Mo. 430; State ex rel. v. Wilder, 197 Mo. 35; St. Louis v. Klausmeier, 213 Mo. 130; 1 Lewis's Sutherland on Statutory Construction (2 Ed.), p. 529. (6) The provisions of the special road district law govern. Section 10606, R. S. 1909, reads: "The general road law in force in such County shall remain in force in such districts, except wherein the provisions thereof shall be in conflict with the provisions of this article."

Aubrey R. Hammett for respondent.

(1) All statutes which are in pari materia, should be construed together in order to ascertain the legislative intent. State v. Shortell, 174 Mo.App. 153; State ex rel. v. Forrest, 177 Mo.App. 252; In re Estate of Ryan, 174 Mo.App. 207. And this is true, even though enacted at different dates. State ex inf. v. Koeln, 270 Mo. 191. In determining the legislative intent the whole body of the law on the subject must be considered. Gantt v. Brown, 238 Mo. 577. (2) The different sections of the statutes relating to the same subject must be, for the purpose of construction, regarded as in pari materia. McClanahan v. DeWitt, 160 Mo.App. 307.

RAILEY, C. White and Mozley, CC., concur. Williams, P. J., dissents.

OPINION

RAILEY, C. --

On April 24, 1918, there was filed in the Circuit Court of Randolph County, Missouri, by the Moberly Special Road District of said county, a petition for mandamus against respondents, G. R. Burton, A. B. McCoy and G. P. Fullington, qualified and acting judges of the county court of said county. The petition alleges that it was the duty of said county court, at its regular May term, 1917, held on the fourth Monday in May, 1917, to fix and determine the amount of the various tax levies on all property, both real and personal, subject to state, county, school and road taxes, within the limits of said Randolph County, Missouri; that in compliance with their said duties, the judges of the county court aforesaid, at its May term, 1917, levied, among other things, ten cents on the one hundred dollars valuation, on all property in Randolph County aforesaid, for road and bridge purposes, in addition to the levy for special road and bridge purposes. The petition avers, that it was the duty of said county court to cause all that portion of said levy of ten cents on the one hundred dollars' valuation, collected for general road and bridge purposes, within the territorial boundaries and limits of said Moberly Special Road District, to be turned over to the officers of the Moberly Special Road District of Randolph County, Missouri.

It is further averred, that there had been collected in the way of taxes, on said levy of ten cents on the one hundred dollars' valuation, on property lying within the territorial limits of said special road district, for the year 1917, and paid into the county treasury, the sum of $ 4066.40; that the same is now in said treasury of Randolph County, Missouri; that it was paid on real and personal property within said special road district, as road and bridge taxes, under the provisions of Section 36, of Article II, of the Laws of Missouri of 1917, page 457.

The petition avers that on February 25, 1918, said special road district requested said county court to issue to it and its officers, a warrant to the amount of $ 4066.40, so collected on all property lying within the territorial limits of said special road district, as road and bridge taxes; that requests and demands were made before said moneys were distributed or paid out by said county court.

It is further alleged, that said county court refused to turn over or pay to said special road district, or to its officers, the said $ 4066.40, or any part thereof, but said judges of the county court aforesaid have refused to pay over, or cause to be paid, any of said road and bridge taxes, etc.

The petition concludes with a prayer for a writ of mundamus against the county court judges aforesaid, requiring them and said county court to issue proper warrants, and pay over to said special road district, the said levy of road and bridge taxes, collected on property within said special road district, for the year 1917, amounting to $ 4066.40, etc.

Respondents filed their return, and denied all the allegations of petition, except such as are specifically admitted to be true. They admit that the Moberly Special Road District of Randolph County, Missouri, is organized and exists according to law; that said respondents, Burton, McCoy and Fullington, are the duly elected, qualified and acting judges of the county court of said county; they admit that it was the duty of said judges to fix and determine the tax levy, as set forth in above petition; they admit that there has been collected, in the way of taxes on property lying within the territorial limits of said special road district, for the year 1917, and paid into the county treasury, $ 4066.40, as set forth in petition and alternative writ; they admit that on February 25, 1918, said special road district requested said county court to pay over to said Moberly Special Road District, and before said moneys were distributed, the said sum of $ 4066.40; they admit that said county court refused to pay said sum, so collected, as aforesaid, or any part thereof, to said special road district, and still refuse so to do.

Said return further avers that a writ of mandamus ought not to issue herein, for the reason, that Section 10594, Revised Statutes 1909, as amended by Section 1 of the Laws of Missouri of 1913, page 667, is repealed by Section 106 of the Laws of Missouri of 1917, page 477, and, for the further reason that, under the law as it now stands, it is optional and discretionary with said county court as to paying the taxes collected and set forth in the petition, to the commissioners of said special road district, and, the county court, having exclusive jurisdiction thereof, having acted in the matter, the circuit court ought not by mandamus to compel said county court to reverse its decision, etc.

Appellant demurred to said return, for the reason "that it appears upon the face thereof that the same does not state facts sufficient to constitute a defense, nor show any cause whatever for not obeying said writ."

On April 24, 1918, said demurrer was overruled. Appellant stood upon its demurrer and refused to plead further. Thereupon the issues were found in favor of respondents and, on April 24, 1918, judgment was entered accordingly.

Appellant, in due time, appealed the cause to this court.

I. As a matter of precaution, counsel for appellant filed a motion for a new trial, motion in arrest of judgment and a bill of exceptions. In this case, the alternative writ, the return thereto, the demurrer to said return, and the judgment, constituted the record proper. No motion for a new trial, motion in arrest of judgment, nor bill of exceptions, were necessary in order to present to this court the errors complained of herein. [Spears v. Bond, 79 Mo. 467; Hannah v. Hannah, 109 Mo. 236, 240-1, 19 S.W. 87; State ex rel. v. Campbell, 120 Mo. 403; Thorp v. Miller, 137 Mo. 231, 38 S.W. 929; McKenzie v. Donnell, 151 Mo. 431, 52 S.W. 214; Benton County v. Morgan, 163 Mo. 661, 670, 64 S.W. 119; Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 388, 395, 69 S.W. 355; Dysart v. Crow, 170 Mo. 275, 280, 70 S.W. 689; Meissner v. Railway Equipment Co., 211 Mo. 112, 121, 109 S.W. 730; State v. Christopher, 212 Mo. 244, 246, 110 S.W. 697; Shohoney v. Railroad, 223 Mo. 649, 659-60; Houtz v. Hellman, 228 Mo. 655 at 655-663, 128 S.W. 1001; Diener v. Chronicle Publishing Co., 230 Mo. 613, 619-20.]

II. After spending three days investigating the laws of this State as they existed prior to 1917, in regard to the status of special road districts, we have reached the conclusion that appellant is entitled to maintain this action, unless it is precluded from so doing by the provisions of Sections 36 and 37 of the Laws of 1917, pages 457-8, relied upon by respondents. It is contended by the latter that the last named act, in legal effect, if not in terms, repeals the former laws upon this subject. Waiving the above contention for the present, we will first determine whether appellant is...