Summary
In Town of Alexandria v. Clark County, Mo., 231 S.W.2d 622, 624 [5], it was held that the territorial limits of a political subdivision, like the power to tax, is a political question to be determined in the manner specified by the general assembly.
Summary of this case from City of Hannibal v. WinchesterOpinion
No. 41625.
July 10, 1950.
APPEAL FROM THE CIRCUIT COURT OF CLARK COUNTY, WALTER A. HIGBEE, J.
Charles E. Rendlen, Rendlen Rendlen, all of Hannibal, for appellant.
Craig Hiller, Prosecuting Attorney, Kahoka, for said respondents.
This is an action for a declaratory judgment. The plaintiff-appellant is the town of Alexandria. The respondents-defendants are Clark County, the Judges of the County Court of Clark County and the Wayland Special Road District. The district is eight miles square and the town of Wayland is within the geographical boundaries of the district, — "Territory not exceeding eight miles square, wherein is located any city, town or village containing less than one hundred thousand inhabitants, may be organized * * * into a special road district: * * *." Mo.R.S.A. § 8673. Because the town of Wayland is admittedly within the geographical boundaries of the road district its mayor and board of aldermen meet with the judges of the county court and elect the three commissioners of the road district. State ex inf. Holt ex rel. Jones v. Meyer, 321 Mo. 858, 12 S.W.2d 489. The question for decision is whether, in the circumstances stipulated, the mayor and board of aldermen of Alexandria may also participate in the selection of the road commissioners. Ninety per cent of the area and population of the town of Alexandria is within the geographical boundary lines of the road district and ten per cent of the area and population of the town is outside the geographical boundary lines of the district and whether its mayor and board of aldermen may also vote in the selection of the road commissioners depends upon the interpretation to be given the following portion of the statute, Mo.R.S.A. § 8675:
"The mayor and members of the city council of any city or town within any special road district thus organized, together with the members of the county court of the county in which said district is located, * * * shall, * * * appoint a board of commissioners composed of three persons, * * *."
The appellant points to the fact of Wayland's five votes dominating the selection of the commissioners and the alleged resulting injustice to it in that the commissioners repair the roads near Wayland and neglect the roads near Alexandria. To sustain its right to also vote in the selection of road commissioners and thus repel the advantage of Wayland the appellant invokes certain auxiliary rules of statutory construction. It is said that the object and reason of the special road district statutes is to give "organized towns affected by it, and whose inhabitants were subject to it and their property subject to taxation, a voice in selecting commissioners." To accomplish this result Alexandria urges upon us the rules that a construction which would tend to avoid injustice, oppression and absurd results is favored, that "the naked letter of the law must gently and a little give way to its obvious intendment" so as to not produce harsh and unreasonable results contrary to the legislative intention. But the application of these generally accepted auxiliary rules of construction do not necessarily produce a satisfactory interpretation of the statute. While the town of Wayland has an obvious advantage in the selection of the road commissioners it does not follow that the town of Alexandria is wholly without representation in the administration of the affairs of the district. The town of Alexandria and its inhabitants are represented by the judges of the county court. The fact of Wayland's alleged unfair advantage results from the administration of the law. Furthermore, the town of Alexandria does not claim that its mayor and only those members of the board of aldermen who actually reside within the territorial limits of the road district may vote in the selection of road commissioners, — it claims that all four of its aldermen, regardless of the residence of any of them outside the district, have the right to vote. It does not appear that any of its aldermen reside outside the district but it is conceivable that at least one of them could and it is obvious that the statute was intended to apply to and be administered by residents of the district. Mo.R.S.A. § 8704.
As the appellant contends, the word "within" in the phrase "any city or town within any special road district thus organized" is not a word of such preciseness as to have but one meaning and "in construing a statute, we must adopt that meaning always which has application to the subject." Chicago, S. F. C. Ry. Co. v. Eubanks, 32 Mo.App. 184, 190. In statutes and statutory construction it is not a "word of art" with but one meaning — it has a variety of meanings according to the connection in which it is used. 69 C. J., p. 1311. It is for this reason that many of the appellant's cases are not precisely applicable. For example, a Texas statute, Vernon's Ann.Civ.St. § 1595, provided that "Hereafter no county seat situated within five miles of the geographical center of any county shall be removed except by a vote of two-thirds of all the electors in said county voting on the subject." It was held that "county seat" was not necessarily co-extensive with the town of its location, or identical with the municipality, consequently since a part of a town was within the described radius it was "within" the five miles. Here the word, "county seat," as is often the case with the word "town" or "city," did not necessarily refer to the area embraced within the territorial limits of the incorporated city but to the city in fact. Congregation of Sisters of St. Joseph v. Glassell, 207 La. 213, 20 So.2d 923; Ralls v. Parish, Tex.Civ.App., 149 S.W. 810, 811; see also Paul v. State, 48 Tex.Civ.App. 25, 106 S.W. 448. Webster's International Dictionary defines the adverb "within" as "In or into the space or part enclosed by the outer surfaces or between encompassing sides; specif.: On the inside or inner side; * * * Inside the bounds, as of a region; * * *." As a preposition "within" is defined as "In the inner or interior part of; inside of; not without; * * *. In the limits or compass of; * * *."
It is true that the statute does not say "wholly within" which is not synonymous with "partly" which refers to a situation where a part of a territory is within a district and part of it is without the district. People ex rel. Donegan v. Dooling, 141 App. Div. 31, 125 N.Y.S. 783. But, neither does the statute employ the phrase "partly within" or "substantially within" which would be interpolated into the statute if the appellant's interpretation of the statute prevailed. Had the legislature intended that interpretation it could have provided for it; for example, an Illinois statute, Smith-Hurd Stats. c. 122, § 10 — 6, unmistakably provided for the situation in this language: "When any city having a population of not less than one thousand and not exceeding one hundred thousand inhabitants lies within two or more townships, that township in which a majority of the inhabitants of the city reside shall, with the city, constitute a school township for high school purposes." People ex rel. Boyington v. Northfield Tp. High School Dist. No. 225, 402 Ill. 435, 84 N.E.2d 553.
In addition to what has been indicated, there are two additional circumstances compelling the interpretation that the word "within" as employed in the statute was not intended to permit the mayor and board of aldermen of a town partly within and partly without or substantially within the territorial limits of the road district to vote in the selection of the district's commissioners. In the first place, the territorial limits of a political subdivision, like the power to tax, is a political question to be determined by or in the manner specified by the legislature. Kettle v. City of Dallas, 35 Tex.Civ.App. 632, 80 S.W. 874; Cornet v. St. Louis County, Mo.Sup., 240 S.W. 107; State ex rel. and to use of Moore v. Wabash R. Co., 357 Mo. 380, 208 S.W.2d 223. There is no question here as to the boundaries of the district or to the legality of the creation of the district and its boundaries. The boundary lines of the road district, established in accordance with the statutes, and the territorial boundary of Alexandria are not coterminous and the road district has no jurisdiction over that part of the roads or over the subject of taxation in that part of Alexandria which lies outside the district's boundaries and the reasonable inference from that fact is that "within" means physically within and not outside the district. State v. Houston T. C. Ry. Co., Tex.Civ.App., 209 S.W. 820; McLeod v. Board of Com'rs, 148 N.C. 77, 61 S.E. 605.
In the second place, the emphasis of the entire statute is peculiarly upon the word "within," or "any city or town within any special road district." It is not employed alone in Section 8675. In speaking of the duty of the county clerk with reference to notifying those entitled to vote, Section 8676 says that the clerk shall "notify the mayor and members of the city council of any city within such special road district * * *." In delimiting the commissioners' power to spend portions of their funds on city streets Section 8683 uses this language: "Said board shall have authority to expend not more that one-fourth of the revenue * * * for the purpose of grading and repairing any roads or streets within the corporate limits of any city within said special road district * * * and for the purpose of constructing and maintaining macadam, gravel, rock or paved roads or streets within the corporate limits of any city within the said special road district." The road district is entitled to some revenue from the towns, "One-fourth of all the pool or billiard table licenses collected by any city within any such special road district shall be set apart * * * for the improvement of the roads by the board of commissioners of such district * * *." Mo.R.S.A. § 8690. In again defining and delimiting the board's power the statute says: "Said boards may repair, grade, gravel, macadamize or pave any road in its district but nothing herein shall be taken or construed as enlarging the powers of the boards to expend money upon roads and streets within the corporate limits of any city within said special road district as limited by section 8683 of this article." Mo.R. S.A. § 8700. There is a provision for the extension of the district's boundaries to twelve miles square and there is a provision governing a district in more than one county. Mo.R.S.A. § 8708. The statute was amended and four of its sections were repealed in 1945, Laws Mo. 1945, p. 1494, but is has been in force in its present form since 1895 and there has been no change or enactment concerning a town partly within and partly outside a district. The emphasis of all the provisions of the statute is upon the word "within" when employed in connection with a town or city in the district and some significance must be attached to the consistent use of the word.
All in all the trial court correctly declared the rights of the parties under the statute and the judgment is accordingly affirmed.
WESTHUES and BOHLING, CC., concur.
TIPTON, J., and ELLISON, P.J., concur.
LEEDY, J., dissents.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.