Differing as I do from the reasoning employed and the conclusions reached in the opinions affirming the judgment of the trial court, *Page 293 I deem it incumbent that the grounds of my difference should be stated that no doubt may exist, either in the legal or the lay mind as to the reasons for the same.
Prefatory thereto it may be pertinently observed that this is a suit of great importance to the general public or, as our vernacular tersely puts it, "the people."
The construction of a statute involving, as this proceeding does, the expenditure of a part of a burden of sixty millions of dollars created for the building of highways for the convenience and comfort of our citizens, and the defining of the duties and the limiting of the powers of the Commission charged with that expenditure, constitute subjects fraught with interest to every taxpayer. The right determination of the questions requires more than a literal interpretation of the terms of the law. Truly hath it been said that "the letter killeth but the spirit giveth life." It is meet, therefore, keeping in mind the hallmarks of interpretation, that we ascertain the spirit and purpose of the law and the limitations it imposes upon the exercise of the powers granted, which of necessity includes whatever authority may, under the statute, be exercised by the Highway Commission.
The object of this statute (Laws 1921, 1st Ex. Sess., pp. 131 et seq.), within the terms of which are embraced all the applicable law on the subject, is to provide for the construction and maintenance of roads throughout the State in the manner and along the routes designated in the act. Considered, not only in the light of this statute but in that of history and literature, a road means a public way by which persons, animals and vehicles may pass from place to place, or expressed in the more concise language of the law, a road is a place over which a right of way is enjoyed by the public, either by prescription or formal dedication. In the consideration, therefore, of the subject, the manner in which a way is established is entitled to emphasis. It has, during all recorded history, as Hilaire Beloc says, "constituted one of the great fundamental institutions of mankind." It *Page 294 has served to materially aid in fixing the site of the centers of population, in determining the trend of trade and in facilitating the march of armies, Bacon, who, it will be recalled, said to his uncle Burleigh, that he "had taken all learning into his comprehension," in speaking of the factors necessary to the formation of a stable government, says: "A fertile soil with industry and an easy means of transportation for men and things from place to place, makes a nation strong and great." The wisdom of this truth has been practically recognized by every people who have risen from a nomadic and tribal condition to one of a high state of civilization, as exemplified by the governments they have established. Rome, although it built more to facilitate the transit of its armies, than for the convenience of its civilian population, was the great pioneer in road building. So durably were these roads constructed that despite the erosion of centuries their locations are still determinable. Especially is this true of the Appian and Flaminian ways. Both by comparison and contrast this illustration is relevant in the interpretation of the statute under review. The Romans built not for a day, a decade or a century, but for all time.
In the amendment of our organic law (Art. IV, sec. 44a), and in the enactment of the statute (Laws 1921, 1st Ex. Sess., supra), a like permanence of location and durability of construction were contemplated. The Roman engineers in the conquered outlying provinces built as the bee flies. They leveled the hills; made ways along the escarpments of mountains; filled depressions and built bridges over streams. In their original territory they followed the topography of the country so far as it enabled the centers of population along the routes to be reached. This course added to the convenience of the people as well as affording ways for the movements of armies. Roads are not built now with a view of facilitating the movement of armies, but for the convenience of the people living *Page 295 in the territory through which the road is located. Centuries have passed since the great Roman highways were located and constructed. Civilization in the meantime has made great forward strides; and the unit we call man looms higher now in that intangible thing designated as the State than ever before. This fact becomes apparent to any one who examines the proceedings of legislative assemblies. Therein the rights of men, individually and collectively, are, as they should be, given intelligent consideration. This is due to the fact that industrial and social life has in the past undergone and is still undergoing marked changes. At this day and time the Roman road, the width of which was from eight to fifteen feet and intended only for the transit of narrow tread chariots, soldiers mounted or on foot, and beasts of burden, would illy answer the purposes of a modern highway thronged with interurban busses, trucks, touring cars and other vehicles. Notwithstanding the flight of time and the many changes in governments and the manner of living, the same dominating influences which have governed the location and created the purpose of ancient roads prevail today. Roads were always located for the convenience of the people, whether they were soldiers or civilians. To render this convenience more than a name roads were and are located, except in mountainous and marshy districts, through peopled sections, reaching wherever possible the centers of population along the route. The purpose of this manner of location is evident and has not been and is not now ignored, except by those ignorant of or indifferent to the practical reason why roads are built. In confirmation of this fact, even at the risk of prolixity, we have but to recall to the scholar the course pursued in locating and constructing the great highways we have named. Northerly from Rome ran the Flaminian and crossing the empire it reached its terminus on the Adriatic at Rimini; southerly from Rome ran the Appian to Brindisi on the strait of Otranto. Neither, except in sections not populated, was located along straight lines with cold indifference *Page 296 to the purpose of all highways, the convenience of the people. This illustration need not for its confirmaation have been confined to the roads named. The history of the material development of every civilized country and the present locations of its roads add confirmation to the truth that in all time roads have been located and built with a controlling purpose to subserve the interests and promote the welfare of the people. The whim or caprice of an administrative board cannot, by flying in the face of a plain statute, effect this end or accomplish the purpose of its creation.
Literature charmingly adds its proof to that of history and actual knowledge as to the manner of locating highways here and elsewhere. No traveler who has with open eyes and a reflective mind, gone over any of the great thoroughfares in this country or abroad but will bear witness, not only to the convenience of travel, but to the interest aroused in meeting the people and the charm of the everchanging but always attractive landscapes. Whether we travel afoot with Goldsmith and his flute or with the ever interesting Bayard Taylor, or ride in a diligence with Smollett or Stern or loiter with Irving or Longfellow among classic ruins or by the side of sparkling streams or in quiet inns or quaint towns, we are confronted with the fact that the roads over which we have traveled were located, no matter how long ago, to benefit those who people the country through which they are built.
Our Legislature, familiar with the past history and the present purpose of locating and constructing roads and desirous of best serving the interests of the people, has provided in, what we deem, no uncertain terms (Sec. 26 and last paragraph of Sec. 29, Laws 1921, supra), that the Commission shall so locate the higher type of roads as "to connect the principal population centers in the State." The proper interpretation of this provision constitutes the vexing question upon which the members of this court differ. The writer and others contend, the words being plain, that they should be construed in harmony *Page 297 with the accepted meaning of the words employed so as to effectuate the legislative intention (State ex rel. v. Gmelich, 209 Mo. l.c. 159; State ex rel. Marquette etc. v. State Tax Commission, 282 Mo. 213); which intention must be determined from a consideration of all of the act (Grimes v. McReynolds, 188 Mo. l.c. 689), so construed that its various provisions may harmonize with each other (In re Kinsella's Est., 239 S.W. (Mo.) 818), giving to each a meaning and effect (State ex rel. King v. Brd. Trustees, 184 S.W. (Mo.) 929), but bearing in mind in the presence of and with the application of these canons, that if the plain words above quoted need gloss to determine their meaning, aid may be found in ascertaining the purpose for which the statute was enacted (Buck v. St. L. Tr. Co., 267 Mo. 644; Lusk v. Pub. Serv. Com., 272 Mo. 264).
Not only does the entire act demonstrate that its controlling purpose is the convenience and as a consequence the benefit of the people in the different portions of the State through which the roads are required to be built, but this purpose is evident from the language of the constitutional amendment authorizing the creation of the bonded debt and the statutes prescribing the manner in which the funds arising from the sale of the bonds is to be expended. If such be the dominating purpose of this entire legislation the meaning to be given to the act under review must be in harmony with that purpose.
While not necessary to the determination of the matter at issue, it is not wholly irrelevant to say, it is the opinion of the writer, that it was the intention of the Legislature, while not so expressed, that highways built and improved under this act should, wherever possible, be located along the lines and over the rights of way of roads now in existence and long established. The portion of the act prescribing the courses of primary roads is evidence of the correctness of this conclusion. But more to the point. What is meant by the unequivocal requirement of the act (Secs. 26 and 29) that the primary roads shall be constructed so as "to connect the principal *Page 298 centers of population in the State"? Notably, in this case, the county seats of the different counties were within the contemplation of the act. There the business of the county — which at times has to do with citizens in different sections of same — is transacted; there the principal commercial and industrial enterprises are conducted; and the educational advantages and opportunities for social intercourse are greater than in a rural district. The promoting causes for the congregation of the people at such places are evident. In each is to be found a greater number of people than in any other section of the county. Can it be said then, if the roads authorized to be constructed under this act, are to add to the convenience and promote the comfort of the people and a single one of these centers of population has been passed by, that the law has been rightly interpreted and its purpose promoted?
II. This brings us to a consideration of the power of the Highway Commission; purely statutory in origin, its right to exist and authority to act must be found in the statute of its creation. The character of its power is administrative and its right to exercise the same must be clearly defined, accompanied only by such reasonable discretion as is necessary to effectually perform the duties enjoined. This limitation is always applicable in defining the powers of boards of the character of the Commission. The people, acting through the Legislature, is the sovereign; the Commission is the subject and the statute is the charter of its power. Any duty enjoined therein is not permissive unless so declared, but its performance in the manner indicated is mandatory. This fact is given emphatic force in defining the course required to be pursued by the Commission in locating and constructing the road in question. Not content with declaring that the primary roads should be located and built so as to connect the population centers in the State, the Legislature evidently wary of the vesting of general discretion in a body of purely statutory creation, went further and emphasized *Page 299 the route to be pursued in the location of this road. We are mindful here only with its course so far as concerns the counties of Boone, Callaway, Montgomery, Warren and St. Charles. That course, as defined in the act, is as follows: "Beginning on the Missouri river at Rocheport, thence east through Columbia to the Callaway-Boone county line west of Millersburg;" "Beginning at the Callaway-Boone county line near Millersburg, thence south and east through Millersburg to Fulton, thence north and east through Calwood to Williamsburg to the Callaway-Montgomery county line;" "Beginning at the Montgomery-Callaway county line west of Mineola, thence easterly to Mineola, thence northeasterly to Danville, thence south and east through High Hill and Jonesburg to the Montgomery-Warren county line;" "Beginning at the Warren-Montgomery county line near Jonesburg, thence south and east through Warrenton to the Warren-St. Charles county line;" "Beginning at the Warren-St. Charles county line east of Warrenton, thence in an easterly direction to St. Charles." The course as thus prescribed constitutes a mandate and the Commission has no other alternative than to follow it. Neglect or refusal so to do is in excess of any power granted or implied and is a violation of the law. These portions of the act, included in the various paragraphs of Section 29, constitute an imperative construction of the provisions requiring the road to be located and built so as to connect the centers of population; and, as we have intimated, it is not necessary to determine whether the act requires the road to be built along or upon the road already established. In the presence of mandatory statutes, not only couched as we have shown in express terms, but accompanied by a detailed statement covering each of the counties and designating the centers of population, there is no room left for latitudinary construction and a reliance upon implied discretion to justify the Commission's neglect or refusal to comply with the law. What the Legislature meant by the act under review has been discussed in detail by my brother GRAVES, and in this interpretation *Page 300 of same I concur. I have been content with the discussion and determination of the purpose of the Legislature in the creation of the act and the power of the Commission thereunder. Satisfied as to the correctness of my conclusions it follows as a logical sequence that all of the powers granted must be construed as subservient to that purpose. In short, the statute was enacted, as someone has said in regard to the delightful English roads, to provide "good broad highways leading down from shire to shire and town to town." This accomplished in the manner required by the act and the work of the Commission is performed. Otherwise not. I therefore dissent.