Castilo v. State Highway Commission

279 S.W. 673, 312 Mo. 244, 1925 Mo. LEXIS 485

• Court: Supreme Court of Missouri
• Decided: December 30, 1925
• Status: Published

Opinions

ATWOOD, J.

On February 9, 1923, plaintiffs (appellants here) filed in the Circuit Court of Cole County a petition for injunction against the State Highway Commission of Missouri, alleging that plaintiffs “are all resident citizens and assessed taxpayers of the counties of St. Charles and Warren and of the State of Missouri” and “that they bring and prosecute this suit for and on behalf of themselves and for and on behalf of all other resident citizens and assessed taxpayers of the State of Missouri similarly situated and interested as such in the cause of action hereafter set out.” No temporary restraining order was asked and the case went off on defendant’s demurrer to the petition. The additional facts properly pleaded in the petition are in substance as follows:

That defendant is the State Highway Commission of Missouri, which was organized and exists under and in pursuance of the Act of the General Assembly of August 4, 1921 (Laws 1921, 1st Ex. Sess., pp. 131 to 167), wherein its duties and powers are defined.

That in and by Section 29 of said act, the General Assembly created and established a state-wide connected system of hard-surfaced roads extending into each county of the State, which roads were located by definite de scription, to be known as the “State Highway System,” and which were to be constructed, improved and maintained as state highways by defendant, State Highway Commission, under and in pursuance of the provisions of said act of the General Assembly.

That the roads 'created and established by said act as the State Highway System-were opened, established, travelled public roads, which lead from county seat to county seat and principal towns of the several counties, connecting them by the state-wide connected system of hard-surfaced public roads, created and established in said act.

That as a part of the state-wide connected system, the act followed and described what is known as the “Boonslick Road,” running from west to east across the counties of Howard, Boone, Callaway, Montgomery, Warren and St. Charles; the petition describing the routes (from west to east) across those counties respectively, as they are located and described in the act, naming the cities and towns through which the routes pass.

That no other routes are located and described in the act extending from west to east across these counties except the ones described in the petition, which are made a part of the State Highway System by the act.

That the State Highway Commission under the provisions of the act is authorized to select or designate approximately fifteen hundred miles of the routes created and established by the act as the “State Highway System,” to be improved as roads of the “higher type” and to improve the same as roads of the “higher type,” and is only authorized to improve as roads of the “higher type” such part or portion of the “State Highway System” described in the act as it shall select for that purpose.

That the Highway Commission, in the exercise of its legitimate authority, did decide to improve as roads of the “higher type” routes leading eastwardly from Kansas City in and across thé counties of Jackson, •Lafayette, Saline, Cooper, Howard, Boone, Callaway, Montgomery, Warren and St. Charles to the .city of St. Charles, and in so doing selected for that purpose the routes running from west to east across the counties of Howard, Boone, Callaway, Montgomery, Warren and St. Charles, as the same are located by definite description in the act of the General Assembly forming what is commonly known as the “Boonslick Road.”

That having designated or selected these routes for the purpose of improving them as roads of the “higher type,” it became the duty of the Commission to cause to be improved as roads of the “higher type” the routes leading from Rocheport eastwardly through Columbia, Millersburg, Eulton, Calwood, Williamsburg, Mineóla, High Hill, Jonesburg and Warrenton to St. Charles.

That instead of so performing its duty under the law, the State Highway Commission, in violation of its duty and in disregard of the provisions of the act of the General Assembly in question, caused to be surveyed a route for a road beginning at a point in Howard County a short distance north of Boonville and running thence eastwardly across the counties of Howard, Boone, Calla-way, Montgomery, Warren and St. Charles, which said route, with the exception of a short stretch of ten miles from Danville to a point near High Hill, in Montgomery County, is located from one to ten miles north of the routes described and located in said act as a part of the State Highway System, and runs to and touches none of the cities and towns that are reached by the routes established by the act. That the route so surveyed by the Commission follows no routes created and established by the act as a part of the State Highway System, and in large measure follows no established road at all, but runs over routes on which the right of way will have to be secured by gift, purchase or condemnation, the right of way to a larger portion of said route not having yet been secured.

That in disregard of its duty and in' violation of law the Commission is about to cause to be constructed a road of the “higher type” on and along the new route so caused to be surveyed by it and is about to expend unlawfully for that purpose the sum of five million dollars or more of public money collected or about to be collected by taxation; said public money having been set apart by said act of the General Assembly for the sole purpose of constructing, re-constructing and improving a statewide system of hard-surfaced roads, and none others, in each county in the State, to be known as the State Highway System, as the same is created and established and located by definite description by and in said act of the General Assembly.

That plaintiffs have no adequate remedy at law and if defendant is not restrained plaintiffs will suffer irreparable injury.

That if the Commission is not restrained by a decree of court it will thus unlawfully spend more than five million dollars of public money.

That plaintiffs for themselves and all taxpayers in the State pray for an injunction to restrain defendant from unlawfully expending the taxpayers’ money.

While other issues are raised by the demurrer and must be discussed to some extent, the vital question is to arrive at a correct construction or interpretation of the Act of the General Assembly of August'4, 1921, as it relates to the powers of the State Highway Commission to locate the roads of the “higher type” mentioned in the act.

I. Appellants assign error in the action of the trial court sustaining defendant’s demurrer to the petition. The first ground of demurrer is that plaintiffs have no citizens and assessed taxpayers of the capacity to sue. On this point the petition alleges that plaintiffs are all resident counties of St. Charles and Warren, and of the State of Missouri, and that they bring this suit on behalf of themselves and all other resident citizens and assessed taxpayers of the State of Missouri similarly situated and interested as such in the cause of action therein set out. The right of a resident taxpayer, for himself and all others similarly situated, to apply for injunctive relief against threatened injury by increase in the burden of taxation, and injury peculiar to taxpayers and not suffered by the entire public, through illegal acts of municipal officers has been recognized in this State ever since Newmeyer v. Railroad Co., 52 Mo. 81, wherein at page 89 this court said:

“The injury charged as the result of the acts complained of is a private injury in which the taxpayers of the County of Macon are the individual sufferers, rather than the public. The people out of the county bear no part of the burden; nor do the people within the county, except the taxpayers, bear any part of it. It is therefore an injury peculiar to one class of persons, namely the taxpayers of the County of Macon.”

The amenability of executive and administrative officers of the State to the restrictive power of the courts in a proceeding of this kind, where special injury through increase in burden of taxation is shown, has been declared in a number of cases. [Carson v. Sullivan, 284 Mo. 353, 361; Stocke v. Edwards, 295 Mo. 402, 413.] The petition before us contains allegations of fact that defendant is about to cause to be constructed a road without authority of law and contrary to statute, and will unlawfully appropriate and expend thereon large sums of money, raised and to be raised by taxation, which have been provided, designated and set apart for the one purpose of constructing other and different roads, to the irreparable injury of plaintiffs, and that they have no adequate remedy at law. Respondent says that the petition does not show that plaintiffs’ taxes have or will be increased by the acts of which they complain, or that they will suffer peculiar damage. The petition does not disclose the character or extent of plaintiffs’ property, where situated or how specially affected by defendant’s alleged unlawful acts, unless it be through an increase in the burden of taxation. The allegation that plaintiffs are resident taxpayers, suing for themselves and all other persons similarly situated is, however, a precursor of other alleged facts evidently intended to show that they will suffer special injury in this way, and to support the general allegation of irreparable injury. The act of the General Assembly establishing certain highways and creating a state-wide connected system of hard-surfaced public roads extending into each county of the State, to be located, acquired, constructed and improved and ever after maintained as public roads by the State of Missouri, is pleaded. If plaintiff's are resident taxpaying citizens, the cost of constructing highways authorized by law will be paid not by the entire public, but by the taxpaying class of which plaintiffs are members and which they here represent. If funds raised by taxation and expressly set apart by law for the construction of certain highways designated by statute are expended upon other and different highways not authorized by law, as plaintiffs specifically plead, the necessary conclusion from the facts pleaded is that the burden of taxation on resident taxpaying citizens will be increased. The roads lawfully designated will have to be constructed and maintained out of additional funds raised to replace money unlawfully diverted. Failure to allege the ultimate fact that plaintiffs’ taxes will be increased, when this conclusion necessarily arises from facts sufficiently pleaded, is not material. Nor is it of any importance here that the petition does not disclose that plaintiffs are the owners of automobiles. In Black’s Law Dictionary a taxpayer is defined as “a person chargeable with a tax.” In State ex rel. Sutton v. Fasse, 71 S. W. (Mo.) 745, Goode, J., speaking for the St. Louis Court of Appeals, defines a taxpayer as “a person owning property in.the State subject to taxation and on which he regularly pays taxes. ’ ’ This definition is adopted in Pope’s Legal Definitions. Furthermore, even as to the sixty-million-dollar road-bond issue, Section 44-a of Article IV of the Constitution provides that ‘ ‘ said bonds and the interest that will accrue thereon shall be paid out of a fund to be provided by the levy and collection of a direct annual tax upon all taxable property in the State.” It appears from tbe petition, therefore, that plaintiffs have a special interest in the snbject-matter of this suit distinct from the general public and have capacity to sue, and we so hold. We also hold that there is no defect of parties, plaintiff or defendant, thus disposing of the second and third grounds of demurrer.

II. The fourth ground of the demurrer is that the petition does not state facts sufficient to constitute a cause of action. In the light of the contentions here made determination of this ground hinges upon the meaning of Section 29 of the road law enacted . by the General Assembly, August 4, 1921 found on pages 131 to 167, both inclusive, of Laws 1921 (1st Extra Sess.), and particularly the last ten lines thereof, at page 164, which read as follows: -f

‘‘Provided, that the Highway Commission is authorized and empowered to designate the routes and types of the higher-type roads of approximately T500 miles connecting the principal population centers of the State, and to make such changes in the routes of said roads as it may deem necessary in the interest of economy and directness of routes, and is authorized to commence the construction of said higher-type roads at such place or places on such routes as it may deem advisable; Provided further, that no changes in designation shall increase the total mileage of the State Highway System.”

Immediately preceding the above lines is a nineteen-page description of the routes of the highways comprising the “State Highway System.” These routes are described by naming certain lines, points, and towns in each county through which they shall pass. Plaintiffs plead the east-and-west route through the counties • of Howard, Boone, Callaway, Montgomery, Warren and St. Charles, alleging that said route is commonly known as the “Boonslick Road,” though it is not so named in the statute. Plaintiffs further allege that defendant designated this route as the route of the higher-type road connecting the cities of Kansas City and St. Lonis, and that in constructing said road defendant will make such changes in the route that it will miss certain towns and points through which the statute provided said route should pass, and that such changes are illegal and contrary to law. Appellants’ position with reference to changes the Highway Commission is authorized to make in the routes it may designate for the 1500 miles of higher-type roads is thus briefly stated on pages 9 and 10 of their reply brief:

“While the Highway Commission is authorized to make changes in the location of routes, in the interest of economy and directness of routes, that power is limited to making such changes between the cities and towns on the routes established in the act, and it. has no authority so to change the routes as to leave any of those cities and towns off of the improved road.”

Respondent claims that it has such power and is acting according to law and within the scope of its lawful discretion. These contentions call for an interpretation of the clause in Section 29 immediately following the first use of the word “provided” in the lines above quoted. The meaning of other portions of the act is apparently not questioned in this proceeding.

It is a cardinal rule in the construction of statutes that effect is to be given, if possible, to every word, danse, and sentence. [38 Cyc. 1128; State ex rel. v. Harter, 188 Mo. l. c. 529; Strottman v. Railroad, 211 Mo. l. c. 251.] The first paragraph of Section 29 is as follows:

“There is hereby created and established a statewide connected system of hard-surfaced public roads extending into each county of the State, which shall be located, acquired, constructed, reconstructed, and improved and ever after maintained as public roads, and the necessary grading, hard surfacing, bridges and culverts therefor shall be constructed by the State of Missouri. Such state-wide connected system of hard-surfaced roads shall be known as the ‘State Highway System,’ and shall consist of highways along the following described routes:” (Here follows the above mentioned nineteen-page description of routes naming by counties the towns, lines and points through which the routes shall pass).

Section 30 directs the engineer to cause surveys to be made of the “State Highway System” as designated in Section 29, and makes it his duty, “when practicable,” to adopt and utilize previous surveys together with plans and specifications if any have been made by the highway department. It is plain that the General Assembly never intended that- these previous surveys should determine the location of the routes comprising the State Highway System. A discretion was vested in'the Commission as to the adoption of such surveys and the exercise of such discretion will not be interfered with in this proceeding. The only thing done toward the location of the routes comprising the State Highway System was to name certain towns, lines and points in each county through which they should pass. It clearly follows that the location of the routes of the entire highway system between these named towns, lines and points was, under that portion of Section 29 which preceded the proviso now under consideration, left to the sound discretion of the Highway Commission. Therefore, appellants’ above interpretation that in the location of the 1500 miles of higher-type roads the Highway Commission can change the routes only between towns, cannot stand because it ascribes no meaning to the proviso, this power under the preceding enactment being already in the Commission as to all routes comprising the State Highway System. The proviso is not expressly or impliedly a restriction on the powers of the Commission, nor can it be tortured into such even by the much used and frequently abused maxim, expressio unius exclusio alterius est. The Highway Commission’s power “to make such changes in the routes of said roads as it may deem necessary in the interest of economy and directness of routes” is general. This power is not expressly affirmed as to the one matter of changing routes between towns. Where there is no expressio unius there can be no exclusio alterius, and hence no application of the maxim.

On page 15 of the brief of amicus curiae the following’ interpretation of this clause or proviso is suggested:

“It authorizes the Commission to use its discretion in the selection or designation of certain legislative-designated routes to be constructed as a higher-type road, and after having designated some particular legislative route, then the Commission may make such changes ‘in’ that route, provided the changes are made in the interest of economy and directness, and do not increase the total mileage of the State Highway System; but in making any change in that route they cannot miss legislative designated points-in any one of the counties through which that route may pass.”

This position is likewise untenable, and for the same reason that it would give the proviso no meaning. We cannot assume that this clause is but the vain repetition of a power already lodged in the Commission. If possible this language must be given some force and effect. The trouble with the interpretations suggested by appellants and the amicus curiae is that they violate a cardinal principle of statutory construction, namely, that all parts of the statute must, if possible, be given meaning and effect. [State ex rel. v. Harter, supra; Reagan v. County Court, 226 Mo. l. c. 89.] In order to carry his point one may not cull out parts of the statute inconsistent with his view and treat them as surplusage or idle repetition, as appellants in effect here seek to do. The real question is whether this clause as well as other parts of the statute can be given force and effect and at the same time carry out the evident legislative intent of the act taken as a whole.

In dealing with this question appellants persist in the erroneous view that a proviso may not confer power as well as impose restrictions. In 36 Cyc. 1161, it is said:

“A proviso is a clause engrafted on a preceding enactment for the purpose of restraining or modifying the enacting clause, or of excepting something from its operation which otherwise would have been within it, or of excluding some possible ground of misinterpretation of it, as by extending it to cases not intended by the Legislature to be brought within its purview. The appropriate office of the proviso is to restrain or modify the enacting clause, and not to enlarge it, but where from the language employed it is apparent that the Legislature intended a more comprehensive meaning, it must be construed to enlarge the scope of the act, or to assume the function of an independent enactment.”

The American & English Encyclopedia of Law (1 Ed.) vol. 23, page 435, thus tersely defines the office of provisos: “A proviso is something engrafted upon an enactment, and is used for the purpose of taking special cases out of the general act and providing specially for them. ” '

Brown v. Patterson, 224 Mo. 639, 658, quotes with approval People ex rel. v. Kelly, 5 Abbott’s New Cases, l. c. 405, in which the New York Court of Appeals adopts this definition of the term proviso: “A proviso in a. grant or enactment is something taken back from the power first declared. The grant or enactment is to read, not as if the larger power was ever given, but as if no more was ever given than is contained within the terms or bonds of the proviso.”

Construing a statute defining a certain duty of the county court, Geaves, J., speaking for this court in Reagan v. County Court, 226 Mo. l. c. 89, said: “The terms of the proviso limit the general terms of the broad act, and it can make no difference as to the force and effect of a proviso, whether its purpose is to limit the terms of a statute which grants rights, or whether it limits the powers of a statute which restricts rights. It is argued in this case that the first provision of this statute restricts the rights of the county court, but granting that to be true, the proviso, which is the later legislative expression, removes some of the restrictions,”

The portion of the title of the act relevant to the section under consideration (Laws 1921, 1st Ex. Sess. p. 132) reads: “Providing for the construction and maintenance of a state-wide connected system of hard-surfaced public highways extending into each county of the State, to be known as state highways; authorizing and directing the State Highway Commission to designate the routes along which such highways shall he constructed.” This language and the enacting words of the first paragraph heretofore quoted from Section 29 creating and establishing the State Highway System of hard-surfaced roads and describing routes in and through different counties, all of which precede the proviso, clearly indicate a restriction or limitation of the Commission’s power to change routes to those portions between the named towns, lines and points. The reiteration of this limitation in a subsequent proviso would be to no purpose, but if the General Assembly in the location of the 1500 miles of higher-type roads desired to modify this restriction and vest a discretion in the Highway Commission ‘ Go make such changes in' the routes of said roads as it may deem necessary in the interest of economy and directness of routes,” the natural and reasonable way to carry out such legislative intent was to enact this clause. It is an approved course in legislation and the language of the proviso is apt and effectual to accomplish this end. As the first provision of Section 29 in effect limits or restricts the rights of the Highway Commission in laying out the routes, so the proviso, which is the later legislative expression, modifies the restriction and consequently enlarges the power of the Commission. [Reagan v. County Court, supra.] It is no valid objection that the proviso conflicts in part with the enactment which precedes it. Such is the very purpose and .function of a proviso, and when the restriction laid in .the main part of the act is lifted by the proviso the whole act must be read as though the restriction never existed as to the matter covered by the proviso. [Brown v. Patterson, supra.] Although under this proviso the High way Commission has a larger discretion than that sanctioned by the preceding terms of Section 29, yet the legislative intent to vest such discretion so plainly appears from the language employed that it cannot be denied, and the subsequent proviso “that no changes in designation shall increase the total mileage of the State Highway System” clearly keeps the clause within the general scope and purpose of the act. Respondent, therefore, has the power it claims, even though this clause be strictly construed as a proviso in the usual legal acceptation of that term.

However, use of the word “provided” does not in and of itself convert the words following into a “proviso” in the strict legal sense. The word may be used in the conjunctive sense and precede an independent out- and-out grant of power. In Georgia Banking Co. v. Smith, 128 U. S. 174, at page 181, it is said: “The general.purpose of a proviso, as is well known, is to except the clause covered by it from the general provisions of a statute, or from some provisions of it, or to qualify the operation of the statute in some particular. But it is often used in other senses. It is a common practice in legislative proceedings, on the consideration of bills, for parties desirous of securing amendments to them to precede their proposed amendments with the term ‘provided,’ so as to declare that, notwithstanding existing provisions, the one thus expressed is to prevail, thus having no greater signification than would be attached to the conjunction ‘but’ or ‘and’ in the same place, and simply serving to separate or distinguish the different paragraphs or sentences.”

The same rule is stated in State ex rel. v. Moneyham, 212 Mo. App. 573, and there is much in the legislative history of the act pointing to such use of the word in this case. But it is immaterial whether used in the strict legal sense of introducing a limiting proviso, or in the popular legislative sense of a conjunctive, for the result is the same. Power to make such changes as it may deem necessary in the interest of economy and directness in the routes designated for the higher-type roads of approximately fifteen hundred miles connecting- the principal population center of the State was thereby vested in the State Highway Commission.

It may be here suggested that the statute does not name or define “the principal population centers of the State.” The Highway Commission is thus left to determine the population centers it will connect with roads of the higher type, but it can construct only fifteen hundred miles of roads of this type. Consequently many population centers of the State cannot be connected with the “higher-type” roads. But the General Assembly doubtless intended that by economy and directness of routes the Commission should make these fifteen hundred miles of higher-type roads go as far as possible and connect as many of the population centers of the State as possible in the order of their extent and importance. This determination calls for the exercise of a sound discretion both in the choice of the population centers to be connected and in the location of higher-type roads connecting them, which discretion is here plainly vested in the Highway Commission. It is not pretended that all the towns named by statute as points through which roads comprising the State Highway System should pass are principal population centers of the State, or that the fifteen hundred miles of higher-type roads can by any stretch of money or imagination be made to pass through all of them. With just as little reason may it be claimed that the principal population centers of the State can be connected by fifteen hundred miles of higher-type roads' without missing some of the towns named in the routes designated by statute. If appellants’ contention were upheld it would not only do violence to the above plain language of the statute, but it is also apparent from the road law and facts connected with the administration thereof of which we can but take judicial notice that the most expensive and far-reaching part of our road construction would be frittered away on extravagant indirect routes and principal population centers of undoubted rank would be deprived of the connection to which they would be entitled under the law as declared in the last controlling expression of the legislative intent. Furthermore, Section 21 gives the Commission power to purchase or condemn right of way, thus indicating that the General Assembly did not intend that the location of routes should be confined to roads already opened. Also, Section 26 provides that the fifteen hundred miles of higher-type roads be designated before any apportionment of highway funds is made to the counties, thus recognizing that the actual location of the higher-type roads would affect the mileage of the State Highway System previously designated in each county. These and other provisions of the act argue strongly that the General Assembly purposed by this proviso to lodge a discretion in the Highway Commission, untrammeled by any previous enactment, to make such changes as it might deem necessary in the interest of economy and directness of routes in the routes it might designate for the higher-type roads, and we hold that such discretion is well vested. Respondent’s exercise of this discretion will not be interfered with in this proceeding, and appellants do not contend that this should be done if the discretion exists.

In support of their contention appellants cite cases construing the Illinois road law, but this statute expressly limits the Commission’s power to change routes to the making of minor changes, and it is in other respects so materially different from our own law that the decisions are of little assistance here. Cases are also cited from other jurisdictions and other arguments are advanced. We have carefully 'examined each and all of them but find no cause to modify our views above set out. Plaintiffs’ petition fails to state facts sufficient to constitute a cause of action and there is no equity in the bill.

The judgment of the trial court is affirmed.

Blair, G. J., concurs; Ragland and White, JJ., concur in separate opinions; Graves, J., dissents in separate opinion; Walker, J., dissents in separate opinion and concurs with Graves, J.; Otto, J., not sitting.