Opinion No. 23-72

Topics:

ROADS & BRIDGES.
STATE HIGHWAYS.
OUTDOOR ADVERTISING.
CONSTITUTIONAL LAW.

Summary conclusion

1. The State Highway Commission may not utilize state road or highway fund moneys to defray the cost of the administration of a system of permits for the regulation of outdoor advertising.

2. The adoption of the permit system by the State Highway Commission is mandatory under Section 226.550, RSMo Supp. 1971.

3. Regulations for a permit system for outdoor advertising need not be adopted by the State Highway Commission and filed with the Secretary of State prior to such system's becoming effective.

4. Section 226.550, RSMo Supp. 1971, provides that permits.be issued on a one-time basis.

5. Permits are specifically required only for the outdoor advertising specified in Section 226. 520(5), RSMo 1969. Pre-existing signs that come within this provision are subject to permit regulation. Other pre-existing and non-conforming signs, subject to removal under Sections 226.560 and 226.580, RSMo 1969, need not obtain permits.

6. Section 226. 550, RSMo Supp. 1971, refers to subparagraph (5) of Section 226. 520, RSMo 1969. Therefore, outdoor advertising located in unzoned commercial or industrial areas, as defined and determined pursuant to Sections 226.500 to 226.600, RSMo 1969, is required to have a permit.

February 1, 1972

Honorable Thomas D. Graham
Representative, District No. 12
Room 317, Capitol Building
Jefferson City, Missouri 65101

Dear Representative Graham:

 Recently you requested an opinion from this office that asked the following questions:

 Your first two questions:

 compel an examination of Chapter 226 of the Missouri Revised Statutes.

 Section 226.590, RSMo 1969, states:

 This provision specifically prohibits the use of state road funds to defray the cost of administering an outdoor advertising system. The alternative remaining for the funding of such an administrative system is an appropriation by the legislature.

 The silence of the legislature on the source of funds to administer the program should not be construed to indicate that the act would not be administered. If the legislature deemed it necessary, it could make a special appropriation for the administration of the outdoor advertising program. Section 226.590 authorizes the Highway Commission to use funds appropriated to it. Since the act directs permit fees to be deposited in the general revenue fund, the legislature probably intended to appropriate funds specially for the administration of the permit system.

 Absent an appropriation, may the Highway Department fund be used to meet the cost of administering the system? Section 226.200 establishes a State Highway Department fund implementing Article IV, Section 30(b) of the Missouri Constitution. This fund permits payments, among other uses, for the maintenance of the State Highway Commission. Can this be construed to allow the Commission to administer the system with these funds?

 Application of the principles expressed in certain recent decisions interpreting constitutional provisions dealing with the expenditure of highway moneys compels this question to be answered in the negative.

 The relationship of the subsections of the constitutional provision cited previously to the regulation of outdoor advertising can be better understood by the application of principles stated in certain recent Missouri decisions. The recent decision of Pohl v. State Highway Commission, 431 S.W.2d 99 (Mo. bane 1968), dealing with toll road legislation, espouses the principle that a narrow interpretation should be placed on these constitutional provisions dealing with the expenditure of highway moneys. In the Pohl case, the court interpreted the scope of subsection (5), the subsection that arguably might provide the basis for such an expenditure. Subsection (5) permits highway fund expenditures:

 The court stated that:

 The St. Louis Court of Appeals, in State ex rel. State Highway Commission v. Pinkley (unreported decision issued September 28, 1971), rejected the contention of the State Highway Commission that Article IV, Section 30(b) (5) authorizes the Commission to provide a rest area abutting a state route, holding that subsection (5) did not grant any new or unspecified power.

 Subsection (1) permits expenditures:

 The language used in this subsection clearly envisages use of funds for construction and maintenance of the roadway itself and adjacent roadway maintenance. The stated purpose of the Highway Beautification Act and the concept of billboard regulation are not directly related to the purposes stated by this constitutional provision.

 The result and principles expressed by the Pohl decision must be contrasted with another line of cases that permit a flexible, expansive interpretation of legislation in order to meet federal objectives. The Missouri Highway Beautification Act was passed in response to federal controls on outdoor advertising (23 U.S.C. 131 et sect). Unless a state provides an effective means of billboard control, federal aid highway fund payments to the state will be reduced by ten percent. When a state enacts legislation to secure federal aid, the statutes enacted to effectuate the purpose to be served by the legislation must be construed together with the federal statutes so that the purposes of the legislation will not be thwarted. Davis Construction Co. v. State Highway Commission, 141 S.W.2d 214 (K.C.Ct.App. 1940); Woolley v. State Highway Commission, 387 P.2d 667 (Wyo. 1963).

 Subsection (3) of Article IV, Section 30(b) of the Missouri Constitution permits the State Highway Commission to "locate, relocate, establish, acquire, construct and maintain," "(d) any highway within the state when necessary to comply with any federal law or requirement which is or shall become a condition to the receipt of federal funds;". Either this subsection or subsection (5), or the subsections in conjunction, would provide the only basis for legal expenditures from the state road fund for the regulation of outdoor advertising. To arrive at this conclusion, the term "maintain" would have to be given an expansive definition. In construing words and phrases, Section 1.090, RSMo 1969, directs that words and phrases shall be taken in their plain and ordinary and usual sense. Therefore, the conclusion is inescapable that the word "maintain," as used in the constitutional provision previously referred to, is synonymous with the term "repair." Such a conclusion was reached in the decision of Barber Asphalt-Pay. Co. v. Hezel, 56 S.W. 449, 451 (Mo. banc 1900).

 In a related decision, the Supreme Court of Idaho held that where, as here, a constitutional provision and statute when read together, specifically permit the use of moneys for particular purposes, such funds cannot be used for any other purpose, although such purpose bears some relation to highway matters. State v. Jonasson, 299 P.2d 755 (Ida. 1956).

 The principles stated in response to question "a" are applicable to question "b" also. To determine whether state road fund moneys may be used to administer a system regulating outdoor advertising, one is referred by Section 226.220, RSMo 1969, to the constitutional limitations specified by Article IV, Section 30(b) of the Constitution of Missouri. Despite the obvious need to comply with federal standards, specific Missouri constitutional and statutory provisions cannot be disregarded. Thus, Article IV, Section 30(b) of the Missouri Constitution prohibits the use of state road fund moneys for the administration of a system of billboard regulation.

 In summary, special appropriations are necessary to defray the cost of administering the system of billboard regulation authorized by Sections 226.500, et seq. State highway and road fund monies may not be used to defray the cost of administering this system.

 Section 226.550, in relevant part, states:

 To determine whether such a permit system is mandatory or permissive one must also look at Section 226.530, which states in relevant part:

 In interpreting these statutes, one must give meaning to the phrase "is authorized to." The meaning of the term "authority" and its derivatives have been the subject of much litigation. See 4a, Words and Phrases, 60l-604. The courts of Missouri have never offered a definitive definition applicable to this situation. However, in the case of Dickensheet v. Chouteau Mining Co., 202 S.W. 624 (Spr.Ct.App. 1918), the court observed:

 Given the principles expressed by the Dickensh'eet case and the statement of purpose of this legislation (Section 226.500), stating that it is necessary to regulate and control outdoor advertising, the use of the term "is authorized to" has a mandatory meaning in the context of Section 226.550.

 The purpose of the act states:

 Section 226.530, RSMo 1969, directs the State Highway Commission:

 The act does not state that its effectiveness is to be contingent upon the issuance of regulations by the State Highway Commission. The terms of the act are specific enough to permit the Commission to engage in regulation and gives notice to outdoor advertisers of their legal obligations. For example, Section 226.550 authorizes the State Highway Commission to collect fees for the issuance of permits. It directs that forms for the application of permits shall be furnished by the State Highway Commission. It specifies permit fees. Such specificity indicates that it was not mandatory for the Commission to promulgate rules to make the act effective. 73 C.J.S., Public Administrative Bodies, Section 96.

 The statutory scheme for regulation of outdoor advertising does not direct that regulations shall be promulgated prior to the effectiveness of the act. As stated above, the act specifically requires that any regulations be only those essential to create a system of regulations consistent with federal legislation and regulations on the subject of outdoor advertising. Pursuant to the authority granted by Section 226.550, the Highway Commission could issue forms necessary for permit application and direct applicants to consider the statutory requirements in applying for their permits. Therefore, the permit system can be administered on the basis of the statutory language without the promulgation of rules and regulations.

 Section 226.550, establishing fees for permitted outdoor advertising, does not state the period for which a permit would be valid. The State Highway Commission is authorized to collect fees. . . on or after January 1, 1968 . . ." The intent of the legislature is unclear concerning the length of time a permit would be valid. The low monetary amount required for the issuance of a permit for each type of sign does create an inference that a periodic scheme. of regulation was intended.

 No regulations were adopted concerning the permit period. To promulgate such a rule, imposing a permit period, the Commission can only act pursuant to authority granted by the legislation. Absent a. legislative determination of a specific permit period, one could not be created by rule. State ex rel. Springfield Warehouse & Transfer Co. v. Public Service Commission, 225 S.W.2d 792 (K.C.Ct.App. 1949).

 Although the statutes regulating outdoor advertising are not strictly "in pars materia" (see e.g., Bernhardt v. Long, 209 S.W.2d 112 (Mo. 19+8)) with those regulating "junkyards," both statutes were passed by the 1965 General Assembly and adopted contrasting language concerning the duration of permits. Junkyard operators specifically must obtain annual permits. Section 226.670, RSMo 1969. In view of the presence of such a period in that act, its absence in this act indicates. that the legislature intended the permit to be issued on a one-time basis.

 To ascertain the answer to this question, initially one must determine what signs are encompassed within the permit plan of Section 226.550. The relevant statutory language is:

 Therefore, the terms of Section 226.550 are applicable to outdoor advertising located in unzoned commercial or industrial areas as defined and determined pursuant to Sections 226.500 to 226.600.

 Permits are specifically required only for the outdoor advertising specified in Section 226.520(5). Other pre-existing and non-conforming signs, subject to removal under Sections 226.560 and 226.580, need not obtain permits. Since the language of the act encompasses signs in existence in unzoned commercial or industrial areas erected prior to the effective date of the act, permits are required for such outdoor advertising. Section 226.550 refers to outdoor advertising permitted by subparagraph (5) of Section 226.520. Since pre-existing uses would be permitted under this provision, they are subject to the requirement that a permit be obtained.

 The answer to this question is stated in the response to the prior question "f." The statutory reference in your question "subparagraph d of paragraph (b) of Section 226.520," was a revisor's error. As noted in the response to your preceding question, the correct.reference is stated by Section 226.550, RSMo Supp. 1971. Thus, outdoor advertising located in unzoned commercial or industrial areas is governed by the permit system.

CONCLUSION

 It is the conclusion of this office that:

 The foregoing opinion, which I hereby approve, was prepared by my Assistant, Peter H. Ruger.

Very truly yours,

John C. Danforth
Attorney General