Iron County register. [volume] (Ironton, Iron County, Mo.) 1867-1965, 1910-03-17

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true that a wrongful and un-
authorized discretion might be the
subject of review, but the point
now to be discussed is whether or
not, under the statute there is a
discretion at all. The other ques-
ton we will discuss later in view
of the proven facts. The statutes,
I R. S. 6S19 as amended in 1901,
under which such awards are
made, eliminating surplus lang
uage reads:
"It shall be the duty of the
County Court ........ to select as
the depositary of the county fund,
district school funds and capital
school funds, not otherwise in
vested according to law, the bank
ing corporation, association or in
dividual banker offering to pay
said county the largest rate of
interest per annum for said fund !;
provided, that the court shall have
the right to reject any and all
bids"
The trouble arises between the
terms of the body of the act and
the proviso thereto. AS to this
section 6S19 the act of 1901 made
no material change. The verbiage
used is a little different from the
original section, but in substance
it is the same. The proviso is the
same in both statutes. AS it
originally stood the proviso is
there for what it is worth, just as
it is there now. That the purpose
of this proviso is to lodge discre-
ton in the county court, we have
no doubt. The words thereof pre-
clude a different view. Under it
the court has the right "to reject
any and all bids" From any
standpoint it means discretion.
If the law meant that after ad-
vertising for bids the county court
must accept the highest bid, then
such court could not reject all bids.
The very fact that the proviso al
lows the rejection of all bids
demonstrates that there was in
tended to be left discretion in
the county court. But further this
proviso allows the county court
not only to reject all bids, but
goes further and allows it to reject
"any and all bids" Such pro-
vision but emphasizes the fact that
the legislature was lodging a dis
cretion with the county court.
Grant it that the provision in the
body of the act might be con-
strued to mean that there was an
imperative duty upon the part of
the county court to designate the
highest bidder as the county de-
positary, yet the very purpose of
proviso, under the law, is to mod
ify the broad and general terms
of the act to whick it is attached.
This question we have recently re-
viewed in the case of Brown V.
Patterson. (Not yet officially re-
ported.)
A fundamental rule of construc-
ton is that the whole act, includ
ing the proviso, must be construed
so as to give force and effect to
the act as a whole, not overlook
ing however the purpose of pro.
viso. This purpose has we'll been
defined by the New York Court,
as mentioned in athe Brown case,
supra, thus: ga proviso in grant
or enactment is something taken
back from the power just declared.
The grant or enactment is to read,
not as if the larger power was ever
given, but as if no more was ever
given than is contained within the
terms or bonds of the proviso."
The terms of the proviso limits
the general terms of the broad act
and it can make no difference as
to the force and effect of a proviso.
whether its purpose is to limit the
terms of statute which grants
rights, or whether it limits the
powers of a statute which restricts
rights. 1t is argued in this case
that the first provision of this
statute restricts the rights of the
county court, but granting that to
be true, the proviso, which is
the latter legislative expression,
removes some of the restrictions.
Constituting this statute as a
whole we have no doubt that dis
cretionary power is lodged in the
county court in the matter OF
selecting a county depositary.
Nothing in Henry county v. SAL
mon, POI Mo. |. c. 1859, cited by
appellant, is to the contrary. Such
was the holding in State exrel "
Hawkins, 12O Mo. App. Al, by
Bland, P. j., in the st. Louis
Court of Appeals, after this case
was tried below. Such is the
reason of the thing. Whilst it is
true that it provides for bond,
and the bond may preclude the
county from ultimate loss at the
end of a law suit, yet it cannot be
said that the county court, the
agent of the county, should be re-
quired to place the public funds in
the hands of unknown and ir-
responsible institutions simply
because such institutions offered a
higher rate of interest, and
rendered good bond. With the
, county there is something more
than the mere ultimate recovery
of the county and other public
funds from the bondsmen. Such
funds are needed in the progress
Of municipal affairs, and this must
be held in view by the county
court. No better illustration can
be cited than Henry county v.
Salmon, supra. There, the coun-