stating "If possible, this language must be given some force and effect. . . . In order to carry his point, one may not cull out parts of the statute inconsistent with his view and treat them as surplusage or idle repetition"
How later courts described this case
- stating "If possible, this language must be given some force and effect. . . . In order to carry his point, one may not cull out parts of the statute inconsistent with his view and treat them as surplusage or idle repetition"
- authority to locate highways
Written by the judges who cited it.
The opinion
WHITE, J.
(concurring). — A definition of the office of a proviso to a legislative act is usually an attempt to state a general principle to which the ruling in the particular case may be referred. Manifestly, a proviso must he what the term implies — a condition, or a modification of what has gone before. If it made no change in the operative effect of the terms to which it is attached, it would perform no office, and would he mere surplusage. Its office is not limited to mere restriction upon power granted; it may relax a restriction. It may modify a negative enactment so as to release some restraint, as well as it may modify an affirmative grant by additional restraints. In other words, it may draw in the lines of enclosure, or it may- add new panels to the harriers and expand the enclosed limits.
The proviso in this case operates upon an act which defines and limits the scope of its operation. If the proviso does not enlarge those limits it has no effect. The Legislature had already exercised its authority in designating routes in the highway system. Unless the proviso authorized a modification of that designation it would perform no office at all. It would have no meaning. The first selection of routes was comprehensive and in some particulars indefinite. It will not do to say that the purpose of the proviso is to permit only changes of the routes between the points designated in Section 29. That would he no change, because no routes are fixed between designated points, and no points are fixed where county lines are crossed.
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Section 29 creates a “state-wide connected system of hard-surface public roads . . . which shall be
located, acquired,
constructed,” etc. If such roads are to be “located” and “acquired,” then the commission, if any one, is empowered to “locate” and “acquire” them between designated points. That is not only implied, but expressed, in the terms of Section 4, by which the Commission is vested with
“all powers necessary or proper
to enable the Commission - ...
to carry out fully and effectively all the purposes of this act”
In carrying out the purposes of the act, the Commission-must “locate” the roads, for, except at certain designated points, they are not located, even at the county lines. That- is an original duty. It involves no
change
of lines or points and the word “change” used in the proviso, cannot apply to the discharge of that duty.
Thus the authority to locate the routes between designated points being already in the Commission, what was the purpose of the proviso! It authorizes the Highway Commission
“to designate the routes and types of higher - type roads.”
Does that mean,, as appellant contends, merely that the Commission must select the higher-type roads from the routes already designated! Concede that to be true, and that the Commission in designating higher-type roads must follow the general inter-county plan. Then, further, the Commission may “make such
changes in the routes of said roads as it may deem necessary
in the interest of economy and direction of routes.” Does “said roads” as used in that connection mean merely the higher-type roads! Concede that contention. Thus, after empowering the Commission to “designate” the higher-type roads, the Legislature follows that up by giving it authority to
make changes,
evidently with a view to adapting routes designated to the purposes of the higher-type roads. That is, the Commission may designate the higher-type routes, and in doing so may change designated routes, where, “in the interest.of economy and directness, of route,” it is necessary. Any
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change whatever necessarily would he a change from designated points. Otherwise, nothing would he changed.
That would not be a duplication of lines so as to in crease the total mileage. To change a route does not make two routes; it remains only one.
We must give effect to the proviso if possible. We have no authority to amend a legislative act or to make it inoperative by construction. It is not our office to pass upon the propriety or expediency of the act. If the proviso means anything, whether we deem it wise or not, we must say so. Unless we interpret it to have the effect which the majority opinion gives it, it has no meaning. We cannot assume that the law-makers were deceived by an incomprehensible joker, nor question their wisdom in granting to the Commission the powers mentioned.
For these reasons I concur in the majority opinion.