Town of Highgate v. State ( 1886 )

The opinion of the court was delivered by

Veazey, J.

It is doubtful if any statute was ever enacted in this State that would admit of so unlimited an expenditure of public money, which was so uncertain and doubtful in its provisions and meaning as No. 11 of the Acts of 1884, relating to highways and bridges. Standing alone, it would require a large amount of interpolation in order to get it into shape suitable to base a judgment upon it. It would be easy to show that it ought to be held void for uncertainty, but for the rule that the interpretation which renders a statute null and void cannot be admitted. Vattel’s Rules, No. 16.

But fortunately at the same session, and approved on the same day, another statute (No. 18) was passed relating to the same subject. It is a well settled rule that all statutes in pari materia., are to be read and construed together as if they formed parts of the same statute, and were enacted at the same time. Potter’s Dwarris on Statutes, p. 145, and cases there cited; Sedgwick on St. and Cons. Law, p. 247, and cases there cited.

‘ ‘ All acts in pari materia,” said Lord MaNSEield in The Earl of Ailesbury v. Patlison, Doug. 29, 30, “ are to be taken together a,s if they were one law.” There is no room for question about the rule when statutes are in pari materia. When are they such ? The term imports not only similarity, likeness, but identity. In United Soc. v. Eagle Bank, 7 Conn. 457, the court say : “ Statutes are in pari materia, which relate to the same person or thing, or to the same class of persons or things.” The phrase is applicable to public statutes or general laws, made at different times and in reference to the same subject. It does not apply to private acts of the legislature, conferring distinct rights on different individuals. And so in the case last cited, the charters of various different banks were held not to be in pari materia. But the English laws concerning paupers and church leases and bankrupts are regarded as laws pari materia. Rex v. Loxdale, 1 Burr. 445; Duck v. Addington, 4 Term, 447. In Indiana, whore at the same session an act was passed fixing the salary of an auditor of- a particular county, and also another fixing the salaries of auditors generally, the Supreme Court said that the rule of construction was well settled, viz., to regard these enactments in pari materia; to consider them as one statute, and give them such an exposition as will sustain what appears to have been the main intent of the law makers. Board of Coms. v. Cutler, 6 Ind. 354. Also in New York it was decided, where an act passed in 1817 for the construction of the Erie Canal, vested the fee of the lands taken for the purpose in the people of, the State, and lands were taken for the construction of the canal under an act passed in 1819, omitting any provision as to title, that the people took the same interest under the act of 1819 as they did under that of 1817. Rexford v. Knight, 15 Barb. 627. “ It is to be inferred that a code of statutes relating to one subject was governed by one spirit and policy, and was intended to be consistent and harmonious in its several parts and provisions.” Dwarris, p. 189.

The object in view, the subject-matter, the substance of these two acts, Nos. 11 and 18, is relief to an excessively burdened town as to its highways. Both point to the same thing in substantially the same way, the remedy in one case being against an adjoining town, and in .the other against the State ; that is, all the towns. They relate to the same thing and to the same class of persons. Wo tliink they should be held to be in pari materia. Treating the tAvo acts as one for the pur-purposes of construction, it is much easier to discern the legislative intent of No. 11, and to give it a construction that will make it serve a useful purpose Avithout danger of abuse.

The provisions of No. 18, requiring the commissioners to be sworn, and that their report should contain a finding upon the question of excessive burden, are wanting in No. 11. There is sound reason for such provisions, and it applies as Avell Avhere the help is sought from the State as the adjoining toAvn. Treating the two acts as one, Ave think the legislative intent becomes plain that these provisions of No. 18 should be applied to No. 11.

There is no express provision m No. 11 as to any apportionment of expense between the State and town. It says the commissioners shall report the required expense, and the court shall render judgment as in other highway cases. In other cases, under previous statutes, the court accepted or rejected the report in avIioIc or in part. In No. 18, section 4, there is a provision for an apportionment. There is reason for it Avhere the proceeding is against the State as well as against other toAvns. We therefore conclude from the fact of an apportionment provision in all previous acts, and of the same in No. 18, and of the large discretionary poAver given to the court in previous legislation upon the subject of highways, and of the reason being the same, and nothing prohibitory or inconsistent appearing in No. 11, and as both acts are to be taken as one hiw, that it avus the intention of the legislature to give the commissioners and the court the same right as to apportionment under No. 11, as under No. 18. The omission from No. 11 of those natural, usual and reasonable provisions to be expected in such enactment, can be accounted for only on the supposition that the provisions in No. 18, above specified, and perhaps others, were intended to be applied to No. 11. This brings all the provisions of the two acts, hut being in legal effect one act, in harmony, and relieves No. 11 of its incompleteness and uncertainty. Together they constitute a bung'ling enactment, yet their scope and intent become discernable, and their object capable of reasonable attainment, under restrictions that could not have been intentionally omitted in No. 11. It is to be remembered that the'infinnities of No. 11, many of which are not here noted, are extreme, and yet the court must-give the enactment force and effect.

The view thus taken is strongly supported by the action of the legislature since this case was argued, in the act approved November 24, 188(3, being No. 1(3 of the acts of this year. That enactment is entitled, “ An Act in amendment'of No.. 11 of the Acts of 1884, relating to highways and bridges.” The act begins by saying that “No. 11 * * * is hereby amended so as to read as follows : ” • Then follows a complete remodeling of the whole act, incorporating all the above specified features of No. 18 of 1884 and others, and repealing several sections of that act. In title and treatment throughout, •the present legislature plainly regarded the two acts as one and having supplementary provisions, and gave them legislative construction.

It is objected that Act No. 1.1, as it does not make an appropriation to meet the drafts upon the state treasury drawn by the auditor under said act, violates section 17, chapter II of the Constitution, which provides that “no money shall be drawn out of the treasury, unless first- appropriated by act of legislature.”

There was at the same session, Act No. 1(38, the usual provision of appropriation of a sum named “ for the purpose of paying such demands against the State as may be allowed by the auditor of accounts.”. In this Act No. 11, it provides, section 5, for the auditor to draw order’s on the state treasurer for the amount required, under the judgment of. the court, in each case. It is not unusual for the legislature to make an appropriation of a specific sum for a given purpose ; but this is not always done and is not always practicable. At every regular session of the General Assembly, a general appropriation act is passed, as was done in 1884, and it is made large enough to cover the estimated expense of all the departments of the State government and proper demands against the State ; in addition to that there must be further provision as a definite guide for the auditor in drawing upon that general appropriation. Under the act in question the expense of repairing a highway could not be determined in advance by the legislature. It therefore provided for that to be done by a proceeding in court. We have, first, a general appropriation; second, a provision that the State shall pay a certain class of highway repairs; third, that the amount in each case shall be determined by a court in a proceeding brought for the purpose; fourth, that the court shall appoint a commissioner to have charge of the work and the expenditure of the money; fifth, that the state auditor shall draw orders upon the state treasurer for the amount required, pursuant to the judgment of the court, upon the requisitions of the commissioner.

We think this constitutes an “ appropriation by act of legislature,” within the contemplation of the Constitution.

Further constitutional objection is made to this act on the ground that it violates the principles of equal taxation. A sufficient answer is that the law is general, and applies to all highways under like conditions. This is not a provision to aid in building or rebuilding a particular highway in a special locality, but to aid in any and all highways which are brought within the conditions provided. Highways being public, the public as a whole have an interest in them all, differing largely in degree as between different sections, it is true; but such is the case between even different sections of a town as to its highways. “ To determine an act of the legislature with reference to taxation for a public improvement or a public object, to be unconstitutional, we must see the prohibition contained in the Constitution itself in express terms, or by necessary implication from its terms.” Dwarris, p. 451. We do not deem it necessary to extend the discussion on this point, as it seems to us- that there is no force in the objection.

The County Court clearly had jurisdiction of the cause ; and although the record does not show a compliance with all the requirements of the statute, it does not show any fact that is necessarily fatal to relief, and as the statute and the practice under it are new, we think the cause should be remanded to be proceeded with in accordance with the holdings here made.

Judgment reversed and cause remanded.