222 S.W.2d 64 (Mo. 1949), 41337, State ex rel. State Highway Com'n v. Curtis

Docket Nº41337
Citation222 S.W.2d 64, 359 Mo. 402
Opinion JudgeClark, J.
Party NameState of Missouri ex rel. State Highway Commission of Missouri, Relator, v. Honorable Claude E. Curtis, Judge of the 19th Judicial Circuit of Missouri and of the Circuit Court of Pulaski County, Respondent
AttorneyPhil M. Donnelly, Lue C. Lozier and Wilkie Cunnyngham for relator. Claude T. Wood for respondent.
Case DateJune 13, 1949
CourtSupreme Court of Missouri

Page 64

222 S.W.2d 64 (Mo. 1949)

359 Mo. 402

State of Missouri ex rel. State Highway Commission of Missouri, Relator,

v.

Honorable Claude E. Curtis, Judge of the 19th Judicial Circuit of Missouri and of the Circuit Court of Pulaski County, Respondent

No. 41337

Supreme Court of Missouri

June 13, 1949

Rehearing Denied July 11, 1949.

Original Proceeding in Mandamus

Alternative writ made permanent.

SYLLABUS

Original proceeding in mandamus to compel respondent circuit judge to accept jurisdiction of all issues tendered in the condemnation petition of relator State Highway Commission. The respondent circuit judge improperly sustained a motion to strike from relator's condemnation petition part of the lands involved, as the petition alleged that all the property was necessary for public use. Land needed for a second roadway to be built in the future may be presently condemned, together with additional land required for purposes of construction, drainage and safety. The extent of the land required is vested within the sound discretion of the Commission, and the burden is on the objecting landowners to allege and prove the abuse of such discretion. The respondent judge should exercise jurisdiction to determine all the issues in the case.

Phil M. Donnelly, Lue C. Lozier and Wilkie Cunnyngham for relator.

(1) Respondent should not be allowed to arrogate to his court authority to dictate legislative acts, and thus violate the fundamental tenet of our philosophy concerning efficient, enduring, and constitutional democracy -- the separation of governmental powers between three co-equal departments, each independent and uncoerced in its own constitutional field. City of Kirkwood v. Venable, 351 Mo. 460, 173 S.W.2d 8; In re County Commissioners of Counties Comprising the 7th Judicial District, 22 Okla. 435, 98 p. 557; Constitution 1945, Art. II. (2) The exercise of "legislative power" is the exercise of "the sovereign power," as a representative of the whole people, to consider the needs, desires, and public welfare of the people (political questions), and, in the light of what the department or agency exercising the power believes is such need, desire, public welfare, or expedient thing, to determine and order what general policies shall be pursued in the future, or what specific action shall be thereupon adopted; is the exercise of discretion, judgment, and wisdom (or the lack of same) in the "direction of future action on the principle of policy or expediency." The exercise of "judicial power" is action "in the determination of contested existing rights"; which "investigates, declares, and (maybe) enforces liabilities as they stand on present or past facts and under laws supposed already to exist." Rison v. Farr, 24 Ark. 161; Newell v. Franklin, 30 R.I. 258, 74 A. 1009; Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150; Constitution 1945, Art. III, Secs. 1, 40; Art. IV, Secs. 29-33. (3) Deciding the proper width of right-of-way at any particular point on a public highway in an exercise of "legislative power." The Constitution delegates this power over state highways exclusively to relator, State Highway Commission. Constitution 1945, Art. IV, Secs. 29, 30; Secs. 8773, 8774, R.S. 1939. (4) The power of eminent domain is an attribute of, and necessary to, all sovereignty. Until, and except for, constitutional limitations that (a) just compensation be paid and (b) the project not be for private use, there is no function for the courts to perform. A certificate of condemnation by the agency to which is delegated such legislative power, followed by payment of just compensation, still satisfies every requirement of "due process of law." May v. City of Kearney, 145 Neb. 475, 17 N.W.2d 448; People v. Adirondack Ry. Co., 160 N.Y. 225, 54 N.E. 689; State ex rel. State Highway Comm. v. Day, 327 Mo. 122, 35 S.W.2d 237; Bowzer v. State Highway Comm., 170 S.W.2d 399. (5) Since the determination by the State Highway Commission of the proper width for the right-of-way of a state highway is an exercise of legislative power, the courts may not inquire into such a strictly sovereign act any more than if the Legislature had itself made the determination. Barmel v. Minneapolis-St. Paul Sanitary Dist., 201 Minn. 622, 277 N.W. 208; Secs. 8799, 8767, 8471, R.S. 1939. (6) The people, by their Constitution, have selected the State Highway Commission as their agent to determine the proper width of rights-of-way on state highways. Another agency of the people, the courts, cannot appoint themselves to say whether or not either the State Highway Commission or the people are mistaken or foolish, and that the courts are more competent in such matters. The only remedy is in the hands of the voters to change the Constitution or select more competent agents. Leonard v. Garland, 190 Ill.App. 216, 96 N.E. 819; Board of Permanent Road Commissioners v. Johnson, 231 S.W. 859. (7) Courts may, under certain circumstances, inquire as to whether another agent of government, to which has been delegated the right to exercise some power in accordance with the agent's best (though perhaps unwise) judgment, is guilty of fraud or bad faith -- is not following its own honest judgment. However, such fraud or bad faith must be both specifically pleaded and proven. The courts, not having received any delegation of such power, cannot arrogate to themselves the power to substitute their judgment in place of the fraudulently expressed judgment of the agent. People v. Milton, 35 Cal.App. (2d) 549, 96 P.2d 159; Hidalgo County v. Johnstone, 137 S.W.2d 825. (8) While, under Missouri Constitution, 1945, Art. I, Sec. 28, whether or not the project (Waynesville By-Pass) is intended for private, rather than public, use is a judicial question, yet the court (respondent) should (a) determine this "from an inspection of the petition", and (b) decide that this, as is every state highway, is for public, not private, use. Constitution 1945, Art. I, Sec. 28; City of Savannah v. Hancock, 91 Mo. 54, 3 S.W. 215; State ex rel. Cape Girardeau v. Englemann, 106 Mo. 628, 17 S.W. 759; Kansas & Texas Coal Ry. Co. v. Northwestern Coal & Mining Co., 161 Mo. 288, 61 S.W. 684, 51 L.R.A. 936; Thompson v. Chicago, S.F. & C. Ry Co., 110 Mo. 147, 19 S.W. 77; Dickey v. Tennison, 27 Mo. 373. (9) Since it has been determined by the proper agency of government that all the land sought is "necessary" for the public improvement (for public use), respondent is mistaken in holding that the proceeding before him in any wise involves Sec. 27, Art. I, Constitution 1945, or the condemnation of "excess property." Constitution 1945, Art. I, Sec. 27; Board of Regents for Northeast Missouri State Teachers College v. Palmer, 356 Mo. 946, 204 S.W.2d 291; State ex rel. State Highway Comm. v. James, 356 Mo. 1161, 205 S.W.2d 534; 29 C.J.S. 819, sec. 29.

Claude T. Wood for respondent.

(1) Respondent, in the exercise of a sound judicial discretion, had not only the power but the duty to determine whether relator had shown by its petition, plans and bill of particulars a public use for all the lands it sought to acquire by condemnation. Sec. 8774, R.S. 1939. United States ex rel. T.V.A. v. Welch, 327 U.S. 545, 90 L.Ed. 843; Social Security Board v. Nierotko, 327 U.S. 358, 90 L.Ed. 781; Pennsylvania Coal Co. v. Mahon, 43 S.Ct. 158, 260 U.S. 393, 67 L.Ed. 322, 28 A.L.R. 1321; Mayo v. Windel, 5 N.Y.S. (2d) 690, 255 A.D. 22; Mayo v. Chanler, 24 N.E.2d 494, 281 N.Y. 837; Elliott on Roads and Bridges (4th Ed.), sec. 257, p. 308; Houston North Shore Ry. Co. v. Tyrrell, Trustee, 98 S.W.2d 786, 128 Tex. 248, 108 A.L.R. 1508; Davidson v. Commonwealth, 249 Ky. 568, 61 S.W.2d 34; Ouachita Parish School Board v. Clark, 1 So.2d 54, 197 La. 131; Selle v. City of Fayetteville, 184 S.W.2d 58, 207 Ark. 966; 18 Am. Jur. p. 734, Eminent Domain No. 107; In re Primary Roads No. U.S. 30, West of Mechanicsville, Cedar County, Iowa, Project No. F-57, 300 N.W. 287, 230 Iowa 1069; Johnson v. Consolidated Gas, Elec. Light & Power Co., 50 A. D. 918; City of Cincinnati v. Vester, 281 U.S. 439, 50 S.Ct. 360, 74 L.Ed. 950; Kansas City v. Hyde, 196 Mo. 498, 96 S.W. 201; City of Kirkwood v. Venable, 173 S.W.2d 8. (2) Since respondent was exercising a judicial discretion, and since relator has a plain and adequate remedy by appeal to the proper appellate court, the relator is not entitled to the extraordinary writ of mandamus. State ex rel. v. Terte, 176 S.W.2d 25, 351 Mo. 1089; State ex rel. Horton v. Bourke, 129 S.W.2d 866, 344 Mo. 826; State ex rel. Schneider v. Bourke, 89 S.W.2d 31, 338 Mo. 86; 55 C.J.S. 123, No. 71; State ex rel. Tate v. Sevier, 68 S.W.2d 50, 334 Mo. 771. (3) Whether a use for which private property is being condemned is a public use or a private use, is a judicial question and not a legislative question. Sec. 28, Art. I, Constitution of Missouri 1945; City of Kirkwood v. Venable, 173 S.W.2d 8, 351 Mo. 460. (4) Relator is not authorized under present law to acquire by eminent domain property in excess of that actually to...

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32 practice notes
  • 239 S.W.2d 332 (Mo. 1951), 42173, State ex rel. Silverman v. Kirkwood
    • United States
    • Missouri Supreme Court of Missouri
    • 9 Abril 1951
    ...214 S.W.2d 417. (6) The only remedy open to your petitioner (relator) is by mandamus. State ex rel. State Highway Comm. v. Curtis, 222 S.W.2d 64; State ex rel. McElhinney, 72 S.W.2d 895; State ex rel. v. Robinson, 257 Mo. 584, 165 S.W. 997; State ex rel. v. Broaddus, 239 Mo. 359; State ex r......
  • 474 S.W.2d 46 (Mo.App. 1971), 33985, State ex rel. State Highway Commission v. Pinkley
    • United States
    • Missouri Court of Appeals of Missouri
    • 28 Septiembre 1971
    ...of State Route 72. Regarding such a plea the Supreme Court said in State ex rel. State Highway Commission v. Curtis, 359 Mo. 402, 222 S.W.2d 64, 69, a rehearing: 'In this case all the land sought to be taken is presumptively necessary for the public uses mentioned in relator's petition and ......
  • 233 S.W.2d 26 (Mo. 1950), 41719, Bowman v. Kansas City
    • United States
    • Missouri Supreme Court of Missouri
    • 9 Octubre 1950
    ...of land sought to be taken by eminent domain is a "public use." State ex rel. State Highway Commission v. Curtis, 359 Mo. 402, 222 S.W.2d 64; City of Kirkwood v. Venable, 351 Mo. 460, 173 S.W.2d 8; Mo. Constitution, Sec. 28, Art. I. (2) The trial court erred in holding that the Tr......
  • 270 S.W.2d 44 (Mo. 1954), 44390, State, on Inf. of Dalton v. Land Clearance for Redevelopment Authority of Kansas City, Mo.
    • United States
    • Missouri Supreme Court of Missouri
    • 12 Julio 1954
    ...what property is to be taken is a legislative and not a judicial function. State ex rel. State Highway Commission v. Curtis, 359 Mo. 402, 222 S.W.2d 64, 68, and cases therein cited; Bowman v. Kansas City, __ Mo.Sup. __, 233 S.W.2d 26, 29-30. This contention must be overruled. Relator, under......
  • Request a trial to view additional results
32 cases
  • 239 S.W.2d 332 (Mo. 1951), 42173, State ex rel. Silverman v. Kirkwood
    • United States
    • Missouri Supreme Court of Missouri
    • 9 Abril 1951
    ...214 S.W.2d 417. (6) The only remedy open to your petitioner (relator) is by mandamus. State ex rel. State Highway Comm. v. Curtis, 222 S.W.2d 64; State ex rel. McElhinney, 72 S.W.2d 895; State ex rel. v. Robinson, 257 Mo. 584, 165 S.W. 997; State ex rel. v. Broaddus, 239 Mo. 359; State ex r......
  • 474 S.W.2d 46 (Mo.App. 1971), 33985, State ex rel. State Highway Commission v. Pinkley
    • United States
    • Missouri Court of Appeals of Missouri
    • 28 Septiembre 1971
    ...of State Route 72. Regarding such a plea the Supreme Court said in State ex rel. State Highway Commission v. Curtis, 359 Mo. 402, 222 S.W.2d 64, 69, a rehearing: 'In this case all the land sought to be taken is presumptively necessary for the public uses mentioned in relator's petition and ......
  • 233 S.W.2d 26 (Mo. 1950), 41719, Bowman v. Kansas City
    • United States
    • Missouri Supreme Court of Missouri
    • 9 Octubre 1950
    ...of land sought to be taken by eminent domain is a "public use." State ex rel. State Highway Commission v. Curtis, 359 Mo. 402, 222 S.W.2d 64; City of Kirkwood v. Venable, 351 Mo. 460, 173 S.W.2d 8; Mo. Constitution, Sec. 28, Art. I. (2) The trial court erred in holding that the Tr......
  • 270 S.W.2d 44 (Mo. 1954), 44390, State, on Inf. of Dalton v. Land Clearance for Redevelopment Authority of Kansas City, Mo.
    • United States
    • Missouri Supreme Court of Missouri
    • 12 Julio 1954
    ...what property is to be taken is a legislative and not a judicial function. State ex rel. State Highway Commission v. Curtis, 359 Mo. 402, 222 S.W.2d 64, 68, and cases therein cited; Bowman v. Kansas City, __ Mo.Sup. __, 233 S.W.2d 26, 29-30. This contention must be overruled. Relator, under......
  • Request a trial to view additional results