State v. Schenkel

• Decision Date: 03 March 1908
• Citation: 129 Mo. App. 224,108 S.W. 635
• Parties: STATE v. SCHENKEL.
• Court: Missouri Court of Appeals

108 S.W. 635

129 Mo. App. 224

STATE v. SCHENKEL.

St. Louis Court of Appeals. Missouri.

March 3, 1908.

1. TURNPIKES AND TOLL ROADS — SUFFICIENCY OF ROAD — STATUTORY WIDTH.

The fact that the topography of the country makes it necessary at some points to construct a toll road less than the width the statute prescribes will not justify a court in holding that there has not been substantial performance of the statutory requirements.

2. SAME — TOLLS — LIABILITY TO PAY — REFUSAL — GROUNDS.

One who uses a toll road may not refuse payment for the use on account of the road's condition, this being cause for the interference of public officials, and though the Legislature may prohibit the taking of tolls until the property is up to a certain standard, or, if it falls out of repair, may make its proper construction and maintenance conditions precedent to the collection of tolls against the objection of travelers, such an inhibition will not be deduced from language in a charter or public statute merely prescribing specifications for the construction of the property.

3. HIGHWAYS — ESTABLISHMENT BY STATUTE — COLLATERAL ATTACK.

Where the Legislature has intrusted the opening and control of highways to the discretion and wisdom of the county courts, other courts cannot interfere with a county court's decision whether the public welfare requires the establishment of a proposed road.

4. TOLL ROADS — REGULATION AND USE FOR TRAVEL — COLLECTION AND ENFORCEMENT OF TOLLS.

Rev. St. 1899, §§ 9547, 9548 [Ann. St. 1906, p. 4369], provide that the control of graveled roads constructed by corporations whose charters have expired shall vest in the county court, which shall have power to collect tolls for the maintenance and improvement of such roads, provided they conform to the requirements of section 9476 [Ann. St. 1906, p. 4349], which requires substantial bridges and culverts at all water courses. The statutes do not expressly preclude the county court from collecting toll for a road not up to the requirements. The order of a county court in taking over a road and ordering tolls for its use recited the facts essential to the court's jurisdiction, that the charter of the proprietary company had expired, and that the road possessed "all the statutory requirements as to width, length, and improvement necessary to toll roads." Held, that the court's finding was conclusive against one who refused to pay toll on the ground that certain streams are not bridged; the statutes merely placing on the county courts the responsibility of controlling and raising money for the maintenance of toll roads, and not prescribing conditions precedent, the breach of which will warrant refusal to pay tolls.

5. HIGHWAYS — ESTABLISHMENT BY STATUTE — COLLATERAL ATTACK.

In injunction suits by property owners to prevent the opening of a road through their land, and other collateral actions, a county court's finding of the existence of the facts permitting the opening of the road is conclusive, even its finding that notice had been given to the owner of the land, when in truth it had not.

6. JUDGMENT — COLLATERAL ATTACK.

By omitting to provide a method to review the judgments of an inferior tribunal, the Legislature intended to give finality to its judgments, instead of laying them open to collateral attack.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Action by the state of Missouri against E. W. Schenkel for refusing to pay toll for the use of a toll road. Verdict for plaintiff, and, from an order setting aside the verdict and granting a new trial, plaintiff appeals. Reversed and remanded, with directions.

Jas. E. Reynolds and J. D. Hostetter, for the State. Ball & Sparrow and Pearson & Pearson, for respondent.

GOODE, J.

On December 23, 1903, the county court of Pike county, by its order of record, duly considered, adjudged, and decreed a certain gravel road in said county extending from the city of Louisiana to Ashley should be, and the same was, established and declared a toll road under the provisions of an act of the General Assembly approved May 5, 1899, and contained in the Session Acts of said year on pages 345 and 346. Said act was incorporated in the Revised Statutes of 1899 as sections 9547 and 9548 [Ann. St. 1906, p. 4369], and the former section (9547) was repealed and a new section enacted in lieu thereof by an act of the General Assembly approved April 3, 1901. See Session Acts 1901, p. 235 [Ann. St. 1906, p. 4369]. The new section (9547) differed from the first one only in providing it should be the duty of the prosecuting and circuit attorneys of the respective counties and districts through which such roads might run to prosecute suits brought in the name of the state to enjoin and prohibit the private corporations to which the roads originally belonged from collecting tolls. The legislation as amended may now be found in 4 Ann. St. Mo. 1906, §§ 9547, 9548, which read as follows:

"The control and management of all graveled or macadamized roads of this state which may have been originally constructed by any corporation whether organized under special act of the Legislature or under general law, whose charter life has expired or may hereafter expire, shall immediately pass to and vest in the county court of the county in which such road may be situated, and in all cases where such corporation whose charter life has expired by limitation or otherwise is in the possession of and in control of such roads and is collecting tolls thereon, it shall be the duty of the prosecuting and circuit attorneys of the respective counties or circuits through which such road or roads may run to prosecute suits in the name of the state at the relation of such attorneys to enjoin, restrain and prohibit such corporations from collecting such tolls, and such suits may be prosecuted in the name or names of one or more citizens of such counties or circuits who reside in the vicinity of such roads and travel over the same, and in case the circuit or prosecuting attorneys fail or refuse upon request to prosecute the same, any citizen may, in the name of the state at the relation of said citizen, prosecute such suits to the same extend and in the same manner as the circuit or prosecuting attorney could have done."

"Such county court shall have power to establish and maintain toll gates upon all such roads as may pass under its control and management, as mentioned in the preceding section: Provided, such roads be more than five miles in length and conform to the requirements prescribed in and by section 9476, Revised Statutes Missouri 1899, and such county court shall have power to fix and prescribe the rates of toll, which shall not exceed the rates prescribed by section 1230, Revised Statutes Missouri 1899, and to enforce the collection from all persons whomsoever travelling upon or using such roads; and the funds arising from all tolls on such roads shall be used and applied in operating the same, and in the improvement of such roads and keeping same in good repair."

In the order of the county court adjudging the gravel road from the city of Louisiana to Ashley should be established as a toll road, the legislation we have noticed was recited, and the county court purported to act under and by virtue of the authority of said legislation. The court's order further recited the existing gravel road from the city of Louisiana to Ashley, a distance of about 18 miles, was originally constructed by a corporation organized under the laws of this state whose charter life had long since expired, and said gravel road possessed all the statutory requirements as to width and length and improvement necessary to toll roads, wherefore it was considered, adjudged, and decreed by the county court as aforesaid that the road between the points named should be, and was established and declared to be, a toll road under the provisions of said legislation; that toll gates be placed at certain points, and toll gatherers appointed to collect tolls from all persons using the road at rates which were prescribed in the order; further, that the road be separated into two parts, the part from Louisiana to Bowling Green to be known as the "Louisiana & Bowling Green Gravel Road," and the other part, leading from Bowling Green to Ashley, to be designated as the "Bowling Green Gravel Road"; that the control and operation of the road should be vested in two superintendents who should hold their offices under the appointment of the court, the operation and management of the road to be subject to the supervision of the court. The superintendents were given power to employ laborers to keep the toll road, including bridges and culverts, in good repair, and make all necessary contracts in relation thereto, subject to the supervision and control of the court. Whatever funds were collected for tolls the superintendents were authorized to spend in repairing and operating the road, repairing bridges thereon, and keeping the road in good condition for the use of the traveling public. Other provisions contained in the order need not be recited, because they have no bearing on the decision of the present case, which is a controversy growing out of the refusal of the defendant to pay tolls on the road running between Louisiana and Bowling Green, and known as the "Louisiana & Bowling Green Gravel Road." These refusals occurred on March 14, 1907. Schenkel was driving an oil wagon drawn by two horses over the road on said date. He put his refusal to pay toll on the ground the road was not of the kind the statutes authorized the county court to collect tolls on, inasmuch as it did not comply with the requirements of section 9476 of the Revised Statutes of 1899 [Ann. St. 1906, p. 4349]. Section 9548, which authorizes county courts to establish and maintain toll gates on all roads acquired under section 9547 — that is, on all gravel roads originally constructed by corporations whose...