State ex rel. State Highway Com'n v. James

• Decision Date: 10 November 1947
• Docket Number: 40438
• Citation: 205 S.W.2d 534,356 Mo. 1161
• Parties: State of Missouri ex rel. State Highway Commission of Missouri, Realtor, v. Honorable John R. James, Judge of the 16th Judicial Circuit of the State of Missouri, and of the Independence Division of the Circuit Court of Jackson County
• Court: Missouri Supreme Court

205 S.W.2d 534

356 Mo. 1161

State of Missouri ex rel. State Highway Commission of Missouri, Realtor, v. Honorable John R. James, Judge of the 16th Judicial Circuit of the State of Missouri, and of the Independence Division of the Circuit Court of Jackson County

No. 40438

Supreme Court of Missouri

November 10, 1947

Original Proceeding in Mandamus.

ALTERNATIVE WRIT MADE PERMANENT.

Lue C. Lozier and Wilkie Cunnyngham for relator.

(1) Supreme Court has exclusive superintending control over respondent who refuses, solely because of his interpretation of the Constitution, to take jurisdiction of one of the issues tendered (ascertainment of just compensation for limitation of access rights at certain points). Constitution of Missouri (1941), Art. V, Secs. 4, 3; State ex rel. Neu v. Waechter, 332 Mo. 574, 58 S.W.2d 971. (2) Respondent's duty to take jurisdiction of condemnations for state highways is clear. R.S. 1939, secs. 8759, 1504 1506. (3) Mandamus lies where, on a preliminary objection on a point of law, the inferior court refuses to take jurisdiction of some or all issues. State ex rel. Snow Steam Pump Works v. Homer, 249 Mo. 58, 155 S.W. 405; State ex rel. Wabash Ry. Co. v. Shain, 341 Mo. 19 106 S.W.2d 898; State ex rel. Mississippi River & Bonne Terre Ry. Co. v. Dearing, 173 Mo. 492, 73 S.W. 485; 38 C.J. pp. 611, 612, sec. 88. (4) Appeal would not be an adequate remedy. A useless, wasteful jury trial would be necessary before it would lie; then after the appeal a second jury trial would be required -- this time either on the original petition (with stricken paragraphs replaced) or on amended location and plans. Missouri Civil Code 1945); Sec 126, Laws 1943, p. 390; State ex rel. Mo. Pac. Ry. Co. v. Edwards, 104 Mo. 125, 16 S.W. 117; State ex rel. Cape Girardeau v. Engleman, 106 Mo. 628, 17 S.W. 759; St. Joseph Term. Ry. Co. v. Hannibal & St. Joseph R. Co., 94 Mo. 535, 6 S.W. 691; State ex rel. General Motors Acceptance Corp. v. Brown, 330 Mo. 220, 48 S.W.2d 857. (5) Since long before the adoption of present Art. IV, Sec. 29, Mo. Const. 1945, the State Highway Commission has had the authority (and duty) to do all things it may deem necessary to locate (within certain limits), design, construct, maintain, and regulate the use of such state highways as it may deem for the best interests and advantages of the people of the State, and has been vested with all powers (including the power to condemn whatever property or rights) necessary or proper to enable the Commission to carry out fully and effectively all of its said authority and duties. Centennial Road Law (Laws (1st Ex. Sess., 1921), pp. 131-167); R.S. 1939, secs. 8763, 8742, 8758, 8759; Castilo v. State Highway Commission, 312 Mo. 244, 279 S.W. 673; Constitutional Amendment (1928), Art. IV. Sec. 44a; State ex rel. State Highway Comm. v. Thompson, 323 Mo. 742, 19 S.W.2d 642. (6) The power to condemn "lands" when necessary "authorizes the taking of all property or rights of the condemnee incidental, or attached to land" -- the condemnor may take all property rights necessary, but is not required to take any more. There is no reason why easement of access appurtenent to land should stand in a class by itself and be the sole right in land not subject to condemnation. Petition of Burnquist, 220 Minn. 48, 19 N.W.2d 394; Houston North Shore Ry. Co. v. Tyrrell, 128 Tex. 248, 98 S.W.2d 786, 108 A.L.R. 1508; 20 C.J. 589, sec. 76; 29 C.J.S. 858, sec. 69; R.S. 1939, secs. 655, 5153; St. Louis, K. & N. Ry. Co. v. Clark, 121 Mo. 169, 25 S.W. 192; Chaplin v. Kansas City, 259 Mo. 479, 168 S.W. 763. (7) Adoption of Constitution (1945), Art. IV, Sec. 29, did not withdraw or repeal the Commission's authority to construct state highways and to limit access thereto (which are given by the Centennial Road Law), but authority for both is set out in the 1945 Constitution in positive terms. 16 C.J.S., pp. 98, 100, sec. 48; Missouri Constitution (1945), Art. IV, Secs. 29, 30; McGrew Coal Co. v. Mellon, 315 Mo. 798, 287 S.W. 450. (8) If, by the simple expedient of having the statutes free of any limitation on the Commission's authority to limit access, (1) the Legislature can nullify the constitutional mandate regarding that authority, then much more clearly the (2) Legislature can at any time abolish all authority for constructing any more state highways, since the provision ("may") authorizing legislative limitations upon the limiting-access authority is more clearly "permissive" and less "mandatory" than is the provision authorizing legislative limitations upon the construction authority. State ex rel. McKittrick v. Wymore, 343 Mo. 98, 119 S.W.2d 941; Ex parte Marsh v. Bartlett, 343 Mo. 526, 121 S.W.2d 737.

Ira B. McLaughlin and R. R. Brewster, Jr., for respondent.

(1) The right of access of landowners abutting a highway is a property right which cannot be taken for public use without just compensation. Any power to condemn such right of access can only be delegated by clear constitutional or statutory provisions. Ver Steeg v. Wabash R. Co., 250 Mo. 61, 156 S.W. 689; Press v. Penny, 242 Mo. 98, 145 S.W. 458; State ex rel. State Highway Comm. v. Gordon, 327 Mo. 160, 36 S.W.2d 105; Houck v. Little River Drainage Dist., 343 Mo. 28, 119 S.W.2d 826; State ex rel. Cranfill v. Smith, 330 Mo. 252, 48 S.W.2d 891. (2) The power to condemn the right of access has not been granted to the State Highway Commission in the Constitution, and even if it should be considered that it was so granted, the power to burden the abutting property owner's land with traffic from other abutting landowners has not been so granted. Mo. Constitution 1945, Art. IV, Secs. 29, 41. (3) The power to condemn the right of access has not been delegated to the State Highway Commission by the Legislature. R.S. 1939, secs. 8759, 8758, 8763. (4) Article IV, Section 29, Missouri Constitution, 1945, if construed as granting authority to condemn the right of access of abutting landowners, is not self-enforcing. Mo. Constitution 1945, Art. IV, Sec. 44; Missouri Constitution 1945, Art. V, Sec. 29(g); State ex rel. City of Fulton v. Smith, 194 S.W.2d 302; Ivie v. Bailey, 319 Mo. 474, 5 S.W.2d 50; In re Moore's Estate, 189 S.W.2d 229.

OPINION

Clark, J.

Mandamus. On petition of the State Highway Commission, relator, we issued our alternative writ requiring the respondent circuit judge to accept and exercise jurisdiction of all issues tendered in a condemnation suit filed by relator in his court, or to show cause why he should not do so. Respondent made return and the cause is brought to issue by relator's motion for judgment on the pleadings.

The petition filed by relator in the circuit court is in furtherance of a plan duly adopted by the Commission for the improvement of about six miles of Highway 40 in Jackson County, by the construction of a new road, with access thereto limited to certain designated points, and by the construction of "service" roads, as to which no limitation of access is provided. The service roads are to be on each side of the limited access road and are to connect therewith at certain points. The plan contemplates the use of a portion of present Highway 40 as a part of one of the service roads. The petition seeks to condemn described private property for the purposes mentioned and, after the description of each tract proposed to be taken for the limited access road, contains a paragraph as follows:

"Except as otherwise hereinafter specifically provided, no right or easement whatsoever of use of, or direct access to, from or across the right-of-way above described or any highway now or hereafter constructed thereon, shall attach or belong to the abutting lands or to any person merely because of ownership of abutting lands."

The owners of two of the tracts sought to be condemned filed motions to strike the above quoted paragraphs from the condemnation petition. The court sustained these motions, holding that the petition otherwise stated a good cause of action, but that the Commission has no power to condemn or extinguish the easement or right of abutting owners of access to the highway and that the court lacks jurisdiction to ascertain just compensation for the extinguishment of such easement or right.

In this court respondent contends: (1) that the power to condemn the right of access has not been granted to the Commission either by constitution or statute; (2) that Article IV, Section 29, of the Missouri Constitution of 1945, if construed as granting authority to condemn such right of access, is not self enforcing.

That section of the constitution, referring to the Commission, reads:

"It shall have authority over and power to locate, relocate, design and maintain all state highways; and authority to construct and reconstruct state highways, subject to limitations and conditions imposed by law as to the manner and means of exercising such authority; and authority to limit access to, from and across state highways where the public interest and safety may require, subject to such limitations and conditions as may be imposed by law."

The section does not purport to grant the power of eminent domain, nor does any constitutional provision grant that power to the State or to any state agency, although Section 41 of Article IV authorizes the Conservation Commission to exercise the power "as provided by law for the highway commission." The constitution does not grant the power of eminent domain. The power is inherent in sovereignty, [327 Mo. 160, 36 S.W.2d 105] to be exercised by such agencies, for such public purposes and in such manner as now or hereafter provided by law. The constitution limits the power and the manner of its exercise in certain respects. [Secs. 26, 28, art. I; sec. 4 of art. XI.] It also...