Boswell v. State Highway Commission

642 S.W.2d 406, 1982 Mo. App. LEXIS 3261
CourtMissouri Court of Appeals
DecidedNovember 17, 1982
DocketNos. 12569, 12570
StatusPublished
Cited by2 cases

This text of 642 S.W.2d 406 (Boswell v. State Highway Commission) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boswell v. State Highway Commission, 642 S.W.2d 406, 1982 Mo. App. LEXIS 3261 (Mo. Ct. App. 1982).

Opinion

FLANIGAN, Presiding Judge.

These two consolidated appeals are from judgments of the Circuit Court of Laclede County affirming orders of the State Highway Commission of Missouri, which required appellant Boswell to remove certain outdoor advertising signs which were found to be violative of the Missouri Billboards Act. § 226.500-§ 226.600.1 Boswell advances the same “points relied on” in both appeals.

Boswell’s first point is that the commission’s order requiring removal of certain signs and the trial court’s judgment affirming that order are erroneous because the signs “are directional signs advertising tourist oriented businesses and should not be removed at all by virtue of the provisions of § 226.520(5).’’ The same contention was advanced and rejected by this court in Superior Outdoor Advertising Co. v. State Highway Commission, 641 S.W.2d 480 (Mo,App.1982). Boswell’s first point has no merit.

Boswell’s second point is that the respective rulings of the commission and the trial court are erroneous because the signs “are directional signs advertising tourist oriented businesses and, under the provisions of § 226.580, subd. 5, should not be removed while non-tourist oriented signs remain standing.”

At the hearing before the hearing examiner of the commission, Boswell and the commission stipulated that “non-tourist oriented signs remain in existence along the highways of Missouri, including the highway involved in this proceeding, and have not been removed.” The parties agree that Boswell’s signs advertise tourist oriented type businesses.

Sec. 226.580 deals generally with the procedure for removal of unlawful signs. Sec. 226.580, subd. 5, reads: “5. Any signs advertising tourist oriented type business will be the last to be removed.” Boswell argues that even if his signs are unlawful, their removal is not permitted “until all non-conforming, non-tourist oriented signs are removed.”

In response the commission advances these arguments: Sec. 226.580, subd. 5, became effective on March 30, 1972, and applies only to signs erected prior to that date; Boswell’s signs were erected after March 1972; to uphold Boswell’s contention would render the Missouri Billboards Act ineffective in controlling the erection of unlawful signs after March 30,1972, so long as those unlawful signs advertised a tourist oriented type business; such an interpretation would violate federal law, 23 U.S.C. 131(d), and federal regulations, 23 C.F.R. 750.704.

Further, the commission argues, § 226.-150 directs the commission to comply with the provisions of any act of congress providing for the distribution of federal funds appropriated by congress for highway con[408]*408struction, and to comply with any of the rules or conditions made by the federal government acting under the provisions of a federal law in order to secure to the state of Missouri funds allotted to Missouri by the U.S. Government for highway construction. The commission points out that § 226.530 requires the commission to “promulgate only those rules and regulations of minimal necessity and consistent with customary use to secure to this state any federal aid contingent upon compliance with federal laws, rules and regulations relating to outdoor advertising.” Sec. 23 U.S.C. 131(1) provides for the withholding of federal funds from states that the Secretary of Transportation determines to be in non-compliance with the federal outdoor advertising law by not providing effective control of outdoor advertising. “Therefore,” argues the commission, “if the court were to adopt Boswell’s position, it would force the commission to violate both state and federal law which would ultimately result in the cut-off of federal funds.”

It is at least arguable that the stipulation, entered into between Boswell and the commission, is not sufficiently specific to demonstrate that § 226.580, subd. 5, has been infringed. A mere showing that non-tourist oriented signs exist “along” the highways of Missouri, including the highway involved in this proceeding, falls short of a showing that such signs themselves are violative of the Missouri Billboards Act. Even if the stipulation is construed as referring to non-tourist oriented signs which are violative of the Missouri Billboards Act, the record does not show whether the commission has instituted removal proceedings with respect to them. If such proceedings have been instituted and remain pending in an action for review, § 226.580, subd. 4, postpones the authority of the commission to remove the unlawful signs until the action for review “is finally adjudicated” in favor of the commission. The stipulation makes no mention of the existence or nonexistence of that possible situation. This court, however, in rejecting Boswell’s second point, does not do so on that narrow basis, one which might be in conflict with the intent, as distinguished from the language, of the stipulation.

Neither Boswell nor the commission cites any authority construing § 226.580, subd. 5.2 In Taney County v. Empire District Electric Co., 309 S.W.2d 610 (Mo.1958), the court dealt with a statute governing procedure for appeals to the state tax commission for the review of assessments. The statute provided that at the review hearing the commission or its member or agent “shall then and there hear and determine” the proper assessment. In that case the hearing before the commission was held on October 26. The commission did not make its assessment until November 9.

The supreme court held that it was unnecessary to determine whether the statute did or did not require a decision at the time and place of the hearing because, said the court, “Even if it is assumed that such was required by the statute, we think the provision is directory only and hence we conclude that an order entered after the date of the hearing would not be invalid.”

The court stated: “As a rule a statute prescribing the time within which public officers are required to perform an official act regarding the rights and duties of others, and enacted with a view to the proper, orderly, and prompt conduct of business, is directory unless it denies the exercise of the power after such time, or the phraseology of the statute, or the nature of the act to be performed, and the consequences of doing or failing to do it at such time are such that the designation of time must be considered a limitation on the power of the officer. When the legislature prescribes the time when an official act is to be performed, the [409]*409broad legislative purpose is to be considered in deciding whether the time prescribed is directory or mandatory. If the statute is mandatory there must be strict conformity, but if directory the legislative intention is to be complied with as nearly as practicable.”

In holding the statute there to be directory only, the court pointed out that the statute prescribed no consequences for the failure of the commission to enter orders on the date of the hearing.

The language of § 226.580, subd.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Martin Oil Co. v. Missouri Highway & Transportation Commission
2 S.W.3d 144 (Missouri Court of Appeals, 1999)
Williamsburg Truck Plaza v. Muri
882 S.W.2d 346 (Missouri Court of Appeals, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
642 S.W.2d 406, 1982 Mo. App. LEXIS 3261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boswell-v-state-highway-commission-moctapp-1982.