Logan v. State Highway Commission

[1] I respectfully dissent from the principal opinion, in which Section 8092 and the first 15 lines of Section 8106, Revised Statutes 1929, are quoted. From the latter it is apparent the State Highway Commission is not merely authorized to comply with acts of Congress and rules and regulations of the Bureau of Public Roads of the Department of Agriculture, but is directed to do so. Furthermore the direction is to comply with the provisions of any act of Congress governing the distribution and expenditure of Federal road funds, and any rules and regulations of the bureau. This deprives the State Highway Commission of any discretion in the matter and mandatorily obligates it to follow not only the present but any future Federal laws and regulations on the subject.

The present Federal statute, Section 6, Title 23, U.S.C.A., limits Federal aid to seven per cent of the total highway mileage of the State; and Sections 12 and 42 allow an expenditure not exceeding fifty per cent of the total estimated cost of the highway, with a maximum of $15,000 per mile. But if future acts of Congress should sufficiently increase the per centum of highway mileage to which Federal aid could be extended, the Federal Government would be in a position to dictate the routing of the whole highway system not yet constructed.

[2] Section 44a, Article IV of the Constitution, adopted in 1928, authorizing the expenditure of the proceeds from the seventy-five million bond issue "to complete and widen or otherwise improve the state system of primary and secondary highways as designated and laid out under existing law" refers to the State highway system as particularly specified for each county at great length, in Section 8120. Revised Statutes 1929. [State ex rel. Russell v. State Highway Commission (Mo. banc),328 Mo. 942, 42 S.W.2d 196, 200.] This section gives certain control points naming towns through which roads shall pass and this court has often held they cannot be departed from (except as to the 1500 miles of higher type road).

[3] It is true Section 8106 was a part of the "existing law" when the constitutional amendment was adopted but the question is what the two statutes and the amendment mean. The very language of the latter in effect said the bond money should be spent on roads as the then existing law designated and laid them out. It would not, therefore, apply to roads not yet located but to be located wholly subject to the will or caprice of the Federal authorities. And if Section 8106 is a part of the existing law in the way in which the principal opinion applies it, it has become a part of the constitutional amendment so that it is beyond the reach of legislative correction.

If stubs were built to the towns of Avalon and Tina leading off of the proposed line of Highway No. 65 two miles west thereof, I do not mean to say that would not be a substantial compliance with the statute because both towns would then be on the highway. But if the highway can be wholly diverted from these two towns, as is held in the principal opinion like deviations can be made elsewhere, limited only by the road mileage to which government money may be allotted in this State.

It is a general rule that "where two statutes are in apparent conflict, they should be so construed, if reasonably possible, as to allow both to stand and to give force and effect to each." [36 Cyc. p. 1146.] This is especially true where the statutes relate to the same subject and were enacted at the same session. [State ex rel. Moseley v. Lee, 319 Mo. 976, 992, 5 S.W.2d 83, 90.] The two statutes here involved, Sections 8106 and 8120, cannot be harmonized or reconciled if Section 8106 has the meaning given it by the principal opinion. For if the Congress had extended or should extend Federal aid to the whole State highway system of Missouri, it would overthrow Section 8120 entirely. Section 8106 cannot therefore be regarded as an exception or in the nature of a proviso to Section 8120 for "where the proviso is entirely contradictory and repugnant to the enacting clause, it has been declared void." [36 Cyc. p. 1163.] In my opinion Section 8106 requires the State Highway Commission to comply with congressional acts and with rules and regulations of the bureau of public roads only insofar as may be done without violating the explicit provisions of Section 8120 which designates and lays out the State highway system. The commission must follow Federal requirements as to plans and specifications, types of road and the like, and may even be controlled in the routing of the roads, provided (so far as this case is concerned) the statutory control points fixed by Section 8120 are not disregarded. Ragland, J., concurs.