Castilo v. State Highway Commission , 312 Mo. 244 ( 1925 )

I cannot concur in the majority opinion written by my learned associate, nor in the result of a concurring opinion, written by another of our learned associates.

We are not so much concerned, in this case, with the general effect of a "proviso" to a statute, because that is firmly fixed in our case law. Thus in Brown v. Patterson, 224 Mo. l.c. 658 (after a full consideration of many cases and texts) we said:

"The purpose of a proviso is not to create new rights or make new law or to take away old rights existing under the law or to repeal a part of existing substantive law, but to restrict or restrain the preceding portion of the statute of which it forms a part."

So also in Reagan v. County Court, 226 Mo. l.c. 89, we further said:

"A fundamental rule of construction is that the whole act, including the proviso, must be construed so as to give force and effect to the act as a whole, not overlooking, however, the purpose of a proviso. This purpose has well been defined by the New York court, as mentioned in the Brown case, supra, thus: ``A proviso in a grant or enactment is something taken back from the power just 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.'

"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."

The first proviso in Section 29 of the State Roads Act (Laws 1921, Ex. Sess., pp. 126 to 169, both inclusive) was the stroke of a master mind. Such mind may have been in the Legislature, but more likely not. It was no doubt intended for the joker to the bill, and it largely remains for the court to determine whether this master mind was sufficiently acquainted with the legal effect of a proviso to a statute, to make his joker effective. No State in this Union, in the construction of its State Highway System, has left its State capital off of a higher-type hard-surfaced road, but this assumed joker in our statute has been used for that purpose, to the shame of this State and its inhabitants, and the inconvenience of inter-state travelers, who of all things desire to see a State's capital.

But the intended joker is in the law, and it is for the court to determine the meaning of the whole act including both the first proviso, as well as the second proviso. When we say the meaning of the whole act, we mean that we must try to give a construction to the whole act, considering the joker added to Section 29. This we shall try to do in the following paragraphs. That a commission has run wild, and violated the law, in the construction of hard surfaces upon roads, should have no influence in a clean-cut exposition of the law.

I. That we may have the first part of Section 29 and the provisos thereto in juxtaposition we quote those portions first, and discuss them — not overlooking, however, that we must in determining the question look to each and every section of the whole act in arriving at the meaning of the whole act including the meaning of Section 29, as added to by the provisos.

The first part of Section 29 of the act reads:

"There is hereby created and established a state-wideconnected system of hard-surfaced public roads extending intoeach 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 bythe State of Missouri. Such state-wide connected system ofhard-surfaced roads shall be known as the ``State HighwaySystem,' and shall consist of highways along the followingdescribed routes." The italics are ours.

Following the foregoing quotation is an outline of the parts of this "state-wide connected system of hard-surfaced roads" which is, by the act, designated and called the "State HighwaySystem," and is a detailed description, by a named starting point, a named ending point, and also intermediate points (by name) of that portion of the "State Highway System" in each county of the State. These different county segments are such that they join up to the segments in other counties, and thus form the connected system. The last portion of Section 29 reads:

"Beginning at the Pettis-Morgan county-line east of Smithton, thence in an easterly direction connecting with the east-and-west road in Moniteau County north of Tipton: Provided, that the Highway Commission is authorized and empowered to designate the routes and types of the higher-type roads of approximately 1500 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."

The powers of the Commission is found in Section 14 of the act, which reads:

"The commission shall:

"(1) Have supervision of highways and bridges which are constructed, improved and maintained in whole or in part by the aid of state moneys, and of highways constructed in whole or in part by the aid of moneys appropriated by the United States government, so far as such supervision is consistent with the acts of Congress relating thereto.

"(2) Prescribe rules and regulations not inconsistent with law, fixing the duties of all persons employed by the State Highway Commission.

"(3) Provide for aiding county highway engineers or other officials of civil subdivisions in establishing gradients and alignments, and preparing suitable systems for maintenance of highways and bridges.

"(4) Cause standard plans, specifications and estimates to be prepared for the repair and improvement of highways and the construction and repair of bridges by civil subdivisions.

"(5) Investigate and determine upon the various methods of road and bridge construction adapted to different sections of the State and as to the best methods of construction and maintenance of highways and bridges.

"(6) Compile statistics relating to public highways throughout the State and collect such information in regard thereto as it shall deem expedient.

"(7) Aid at all times in promoting highway improvement throughout the State.

"(8) Prepare plans, specifications and estimates for all State Highways.

"(9) Let all contracts for the construction or improvement of State Highways.

"(10) Prescribe a system of auditing and accounting for all road and bridge moneys for the use of all highway officials, which system shall be as nearly uniform as practicable.

"(11) Have power to construct, under its own direction and supervision, all roads, culverts or bridges, or any part thereofas hereinafter provided."

Clause 11, supra, is the only portion really applicable to the question before us, but we quote all, so that there can be no quibbling about the meaning.

The words "as hereinafter provided" clearly refer to that portion of Section 29, which by naming the points of beginning and ending, as well as the intermediate points, has by legislative action fixed the "highway system" of the State. Observe that there is no grant of power for air lines between two extreme centers of population, one on either side of the State. Up to this point, or to this section of the law, higher-type surfacing must follow the legislative named roads, because Section 14 of the act clearly refers to them, and to no others. Up to this the Commission's right and power to construct roads is limited to those words, "as hereinafter provided," and such roads are fully described in Section 29, and not elsewhere. The surfacing of roads must of necessity be confined to those roads which the Commission has the right to construct, and the only roads they were given the right to construct under Section 14, supra, were those which the lawmakers had "hog-tied" by the specific description in Section 29. It will be noticed that under Section 14, clause 11, quoted, supra, the power is given the commission to construct, but the power to construct is limited to the roads named thereafter in Section 29. Section 30 of the act in no wise changed the situation. This section reads:

"The engineer shall proceed to cause surveys to be made of the State Highway System as designated in the foregoing section of this act, and to prepare detail plans and specifications for each part thereof as soon as practicable; provided, however, that wherever surveys have heretofore been made, it shall be the duty of the engineer, when practicable, to adopt and utilize such surveys, together with plans and specifications if any have been made by the highway department."

This section only empowers the engineer "to cause surveys to be made of the State Highway System as designated in the foregoingsection of this act." There are no roads covered by Section 30, except those specifically designated. The latter portion simply gives them (the engineers) the right to adopt previous surveys, if any have been made along the designated routes. Certain it is, that Section 30 does not authorize the engineer to survey any new route or routes designated by the Commission. Their power is to survey routes designated in Section 29, and not routes which the Commission, or any other body, may undertake to establish in the future. Section 30, therefore, in no way assists in the construction of the provisos, because the provisos do not undertake to designate routes. This section is relied upon by my learned associate in the construction of the provisos. It can serve no such purpose. Neither does it add one iota to the general powers of the Commission under Section 14, quoted in full, supra. Nor does it add to or take from the "road system" mentioned in the first portion of Section 29, quoted, supra.

Before reaching vital questions in this case, i.e. what effect these provisos to Section 29 have upon the whole act, there are side-lights in other sections of the law. It is estimated that the specific routes named in Section 29 (county by county, but so named as to connect at county lines, and thus to form a connected system) total 7,600 miles. This is the system created by the law-makers, excluding the provisos. The law had to follow the constitutional provision, Section 44a, Article IV, of the Constitution, as amended by the people in November, 1922. Bonds in the sum of $60,000,000 were authorized by this provision of the organic law "for the purpose of constructing hard-surfaced public roads, in each county of the State." [Laws 1921, p. 698.] These words were in the original Section 44a of the Constitution, previously adopted, because but a slight change was made with reference to interest. So in 1921 (Extra Session) the law-makers were but following the organic law, when they designated a road system, for the State, county by county, so as to make one continuous system.

Section 26 of the act is a long section, but there is so much in it that lends light to a reasonable construction of the act, including the provisos to Section 29, that we quote it in full, as follows:

"The State Highway Commission may contract for the grading, bridging, and culverting of any part of the established system of highways separately and apart from the surfacing thereof. Construction shall begin as nearly as possible and practicable at the same time in each of the several counties, and allotment or apportionment of the funds shall be made to each and every county at the same time; and at reasonable intervals as the funds are received and collected or as they accrue, and the pro rata part or portion of such funds so apportioned, allotted and set apart to be expended or refunded in each county shall be and become immediately available and shall be expended as provided by law for construction work upon the roads and highways designated in each county for construction or improvement as state highways or for the purpose of refunding where roads have already been constructed. The funds apportioned, allotted and set apart for construction of such state roads or for refunding purposes in each county shall be expended only in the county for the benefit of which same are so apportioned, allotted and set apart. All available funds, including Federal aid, shall be apportioned and expended upon the State Road System as follows: To each county shall be apportioned an amount to be ascertained by multiplying the total number of miles of the state-wide system of roads in such county, as designated herein, by $6,000: Provided, that if this amount is insufficient to complete such State Highways of the type needed to serve the needs of said county of a minimum type of properly bound gravel road or its equivalent of at least twelve feet in surface width and built up to the standard required by the Federal Government, such additional money shall be added as shall be required to complete the construction of the State Highways and connect them with like roads of surrounding counties and states. In making the apportionment as herein set forth, the commission, after estimating the amount required to build such roads in each county, shall use such estimates as a basis of apportionment of two-thirds of such funds, but in no case shall such estimates be less than $6,000 per mile; the intention being that the commission shall make such apportionment for the several counties as shall result in the construction of roads for all counties on the basis of their proportionate mileage, irrespective of the difference in cost of construction of the said properly bound gravel roads: Provided further, that not to exceed one-third of all such funds as they become available may be used in the construction of approximately fifteen hundred miles of higher-type roads connecting the principal population centers, which roads shall be designated before any apportionment herein provided for is made; Provided, however, that for the construction of such higher-type roads, not to exceed $6,000 per mile thereof shall be taken from the said remaining two-thirds of such available funds. The Commission shall, as soon as practicable, ascertain the facts necessary therefor and open and maintain open for public inspection an account with each county in the State showing the amount of the six thousand dollar a mile allotment and any additional allotments required to be made to such county by the provisions of this act, and charge against such sum the total expenditures therefrom for each month, during the time that the construction work contemplated by this act is in progress. Where a State Highway designated by this act is located on a county boundary, one-half of the mileage of such boundary line road shall be credited to each county and each county's fund shall be drawn upon for half the cost of construction of such boundary line road."

Note that here we have the power given to separate the construction of the road, from the surfacing of the road. This is a significant fact to be borne in mind, as we proceed with the section. Further note that it speaks of "the established system of highways;" air lines from east to west, or from north to south are not found in this system. The funds are to be apportioned to the counties in proportion to mileage, and these funds were "to be expended or refunded in each county . . . and shall be expended as provided by law for construction work upon the roads and highways designated . . . as State Highways or for the purpose of refunding where roads have already been constructed. The money (both State and Federal) was to be expended upon thestate-wide road system, and no power given the Commission to establish such. If the county had already constructed the road on the line designated by the Legislature, such county was entitled to a refund, in not less than $6,000 per mile. These provisions apply to two-thirds of the funds, both State and Federal. Then we have the first proviso to Section 26 which allows out of the remaining one-third "the construction of approximately fifteen hundred miles of higher-type roads connecting the principal population centers, which roads shall be designated before any apportionment herein provided for is made." The next proviso makes it plain as to what roads shall be designated. It says: "Provided, however, that for the construction of such higher-type roads, not to exceed $6,000 per mile shall be taken from said remaining two-thirds of such available funds." Now when it is considered that the funds go to each county at the rate of not less than $6,000 per mile, and that the amount is to be ascertained by multiplying the total number of miles of thestate-wide system of roads in such county, as designated herein, by $6,000, it is clear that the law-makers meant that the higher-type roads should be constructed along the roads established by the Legislature in Section 29 of the Act of 1921, and that to secure the higher type, the Commission could use the $6,000 per mile out of the two-thirds, and add thereto from the remaining one-third retained for the higher class surfacing of the established roads of the state-wide system. To give this section, and other sections, the meaning urged by the Commission, is to add 1500 miles of road to the State-wide Highway System, which is preposterous. The worddesignate as used herein means to select from the legislative-established state-wide system of roads, the roads to be made of a higher type. Population centers do not mean two or three on east-and-west roads, and two or three on north-and-south roads, but it means all population centers of the State, to the end that such population centers may be accommodated with a road, and further means that if the Commission chooses to make state cross-road lines of higher type, it must follow the population centers fixed by law upon such lines. Section 36 contemplates that these roads, whether of higher type or of lesser grade, shall pass through the smaller population centers.

Then we reach Section 37, which places "the State Highways asherein designated" under the control of the Commission, and provides for the maintenance of them. This can only refer to the legislative-designated and established roads, because no air lines, or hard-surface lines of superior type had then been designated, or created and could not be designated, until later. Note further the language: "the roads included in said StateHighway System." There was no designated or created "said State Highway System" except those named in the act for the respective counties.

In the road laws of 1917 and 1919, under which many portions of the present State-wide Highway System were constructed, the law-makers had left it to the road authorities to lay out and select the roads. To the very contrary was the Act of 1921. The Legislature saw fit to lay out the State-wide Highway System in express legislative terms. This of itself evidences a legislative desire not only to get away from the old system, and assume the responsibility themselves, but of keeping together what already had been accomplished by the use of State and Federal money. We now go to the provisos of Section 29, upon which the majority opinion turns.

II. Going now to the provisos in Section 29 of the Act of 1921. In this discussion we must not overlook the legal effect of a proviso contained in an act. Its purpose is not to extend the act, but to limit the act and the powers granted by the act, or by way of exceptions withdraw from the preceding sections some of the things granted. Provisos create no new law, and no new powers; they only limit the broad terms of preceding portions of the section or act, and can add no new powers. [Brown v. Patterson, 224 Mo. l.c. 658, supra; Reagan v. County Court, 226 Mo. l.c. 89, supra.]

The rule of construction is to go to the whole act, including the provisos, and from it all determine the legislative intent. [Reagan v. County Court, supra.] The two provisos must be considered together. The second one limits and interprets the first one. It says: "Provided further, that no changes indesignation" (not in establishment of the roads, which was done by the first parts of Section 29) "shall increase the total mileage of the State Highway System." This clearly refers to the system established by the law-makers, in county by county, until all the counties had been covered. It is estimated that this system included 7600 miles of road. This second proviso shows that there was in the mind of the Legislature a State Highway System, and that it should not be increased in mileage by 1500 miles of higher-type roads. The limit of mileage was fixed by the specific mileage given to each of the 114 counties, which mileage was the State Highway System. There is no power given the Commission to abandon any designated portion of the system, and certainly none to add 1500 miles of new road to the system. With no power to abandon the respective mileage allotments to the several counties, and no power to add to the system additional mileage, what does the first proviso mean? It was simply making clear what might otherwise have been mooted, i.e. that the Commission should have the right to hard-surface, and make of a higher-type, such portions of the established highways as it saw fit — not to abandon them altogether. If the Commission desires to make a continuous high-type road either east and west or north and south through the State, it could do so by the selection and designation of the proper established roads in the system. But in doing so they must go from town to town on the established routes, only varying therefrom between the designated towns or cities in the interest of directness of route and economical construction. Absent any authority in this first proviso, or in any other portion of the act, to abandon a single established road in the system, there is no other reasonable construction which can be given the act as a whole.

As the Commission cannot increase the mileage as specified by the law-makers, how can it abandon an established route for ten or twenty miles without having two portions of State Highway paralleling each other at a distance between them of only a few miles? To illustrate by the case pending wherein the amicuscuriae appeared. The established route is through Fulton to Columbia on the west, and from Fulton to other municipalities on the east. The Commission is contemplating the construction of a road (without reference to the road established by the law-makers) some eight or ten miles to the north. Every inch of this unlawfully constructed road is adding to the mileage of the state-wide road system, and is beyond the lawful power of the Commission. The first road was "created and established" by law, and there is no power to take it out of the State Highway System, except by legislative act.

The trouble with my learned brother's construction is that it leaves off of a State Highway many towns which the law-makers said must be on such highway. As in the example given above, as to the road from Fulton to Columbia, we would have two portions of state roads within a few miles of each other, or we would have the "created and established" route abandoned. If not abandoned, then we would have added to the mileage of the system two state roads. Had the construction of my learned brother been read to the Legislature before the passage of this act, there would have been no passage of it, because such construction was not then, and never has been, the legislative intent. The whole act so shows. My learned brother builds up a discretion in the Commission by virtue of Section 30, and then argues that the first proviso has been, under our construction, given no effect. This because the Commission had a discretion, without the proviso. We have discussed Section 30, supra, but at the expense of brevity, we shall go further, because this is the "king bolt" upon which the whole opinion rests. We must reproduce said section here. It reads:

"The engineer shall proceed to cause surveys to be made of the State Highway System as designated in the foregoing section of this act, and to prepare detail plans and specifications for each part thereof as soon as practicable; provided, however, that wherever surveys have heretofore been made, it shall be the duty of the engineer, when practicable, to adopt and utilize such surveys, together with plans and specifications if any have been made by the highway department."

This section says not a word about any discretion in the Commission. It does not even mention the Commission. It says that the engineer "shall proceed to cause surveys to be made of theState Highway System as designated in the foregoing section of this act." The only system mentioned is the one created andestablished in each of the 114 counties of the State. [Laws 1921 (1st Ex. Sess.) p. 145 et seq.] The right given by Section 30 is for the engineer to survey the whole State Highway System, and not such portions as might afterward be selected by the Commission for higher-type surfacing. The only other provision of Section 30 is the proviso which says that if portions have theretofore been surveyed he shall use such surveys. But the vital error of my brother is that he draws discretion to the Commission from this section, when the Commission is not mentioned or hinted at. But even if the Commission had been named, the only authority given is to have surveyed the state road system as "created and established" by the law-makers. The law-makers add, by proviso, that, If you find portions of it already surveyed, use these surveys. All of it shows that the law-makers had in mind the preservation of the work (paid for by State and Federal funds) done under the Acts of 1917 and 1919. So careful were they as to this that they left portions of the Act of 1919, in force, until the present Commission could complete work begun under it. So it will be seen (reading the whole act) that the only discretion lodged in the Commission is that given by proviso one of Section 29. That discretion is not sufficient to authorize the Commission to eliminate the fixed points upon the routes. It can only mean, that between the places (cities, towns and villages) upon the established routes the Commission, in the interest of directness and economy, might make changes. No portion of Section 30, supra, authorizes the surveyor to miss a single town on the established routes. Had the law-makers intended such action, they would have said so in plain words. They have not done so, either in Section 30, or in the provisos to Section 29. To say that Section 30 gave a discretion to the Commission to leave off designated points is like "straining at a gnat, and swallowing a camel." Read the section. It does not even mention the Commission.

This opinion is longer than I anticipated, but my thorough conviction of my learned brother's error is my sole excuse. But another thought has impressed me and I add a paragraph.

By Section 28 of the Act of 1917 (Laws 1917, p. 487) the State Highway Engineer, subject to the approval, modification or rejection of the State Highway Board, selected the state roads. Existing roads might be utilized, or new locations made. Significant is this provision in this section: "Such roads shall be selected with due regard to directness and persistence of routes, low grades, economy in construction and maintenance, probable volume of transportation, and general adaptation to the needs of the people of the county and State at large; provided, that each county in the State shall be included in the system of ``state roads.'" This law gave assent to the Act of Congress entitled, "An Act to Provide that the United States shall Aid the States in the Construction of Rural Post Roads and for other purposes," approved July 11, 1916.

The purpose of the United States Government was to reach the towns and their post offices. No intent expressed or implied to build air lines, leaving off the centers of population, whereat were located the post offices, in which the Federal Government was particularly interested, for the idea of the Federal Government was better roads upon which to transport its mail to post offices.

Sections 8, 8a, 8b and 8c of the Act of 1919 (Laws 1919, pp. 654, 655, 656 and 657) contain a like provision as the Act of 1917, and more. This Act of 1919 contemplated the building of not less than 6,000 miles of a State Highway System in the years 1919, 1920 and 1921. Section 10 of the Act of 1919 makes special provisions for other and additional roads to be constructed at the expense of the State, the Nation and the contributions of public-spirited citizens, and interested municipalities. The Act of 1919 did not limit the state-wide system to 6,000 miles, but provided that at least that mileage be built in the three years. These were not necessarily hard-surfaced roads, but they constituted the nucleus of the state road system. Large sums of money were expended upon those roads, so selected from town to town in the several counties of the State. Those locations and surveys were required to be filed with the Highway Department, and if these surveys be examined it will be found that the Legislature of 1921 (the act now before us) when it created the State Highway System, used these located routes, and the cities and towns through which the divers routes passed, in establishing the highway system of 1921. Such body not only used the routes theretofore established, but designated the cities and towns through which they passed, possibly adding some new routes so that each county might have its proportion of the Highway System. The act then and thereby took from the Commission or its engineer the power to locate roads. This power had been exercised by the engineer, and the Highway Board under both of the previous laws, but no more of that by the Legislature of 1921. This Legislature designated the routes from town to town in each county, and so designated them as to form one consistent and connected system, and with a view that the Federal Government should have real post-roads for the money it expended; no roads running through corn-fields and dodging population centers whereat were the post offices.

So that we have first no power in this Commission to locate a single inch of road. They had already been located. Leaving out proviso one of Section 29 of the Act of 1921, there is not a syllable or line in the act conferring upon this Commission the power to locate new roads.

Then if we turn to the definition of a proviso, as found in the cases cited supra, we find it is a limitation upon a broad power previously granted in the act. If no power has been granted, there is nothing to limit. For this, as well as for the other reasons stated, the law-makers never contemplated throwing into the discard thousands upon thousands of the people's money, by allowing the present Commission to build air lines between a few populous cities.

I most respectfully dissent. Walker, J., concurs in these views, and adds, in a separate opinion, some further views of his own.