State ex rel. State Highway Commission v. Hoester

• Decision Date: 14 November 1962
• Docket Number: No. 49521,49521
• Citation: 362 S.W.2d 519
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Relator, v. The Honorable Robert G. J. HOESTER, Judge of the 21st Judicial Circuit of Missouri and of Division 8 of the Circuit Court of St. Louis County, Harry Gershenson, S. M. Aronson, and Edward B. Southall, Condemnation Commissioners, Respondents.
• Court: Missouri Supreme Court

Page 519

362 S.W.2d 519

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Relator, v. The Honorable Robert G. J. HOESTER, Judge of the 21st Judicial Circuit of Missouri and of Division 8 of the Circuit Court of St. Louis County, Harry Gershenson, S. M Aronson, and Edward B. Southall, Condemnation Commissioners Respondents.

No. 49521.

Supreme Court of Missouri, En Banc.

Nov. 14, 1962.

Rehearing Denied Dec. 11, 1962.

Robert L. Hyder, Samuel C. Ebling, Jefferson City, for relator.

Paul Taub, Overland, Attorney for respondent Judge and for intervenor.

HYDE, Judge.

Relator commenced a condemnation proceeding in the Circuit Court of St. Louis County, in June 1961, for 6.5 miles right of way for a state highway. All required land has been acquired (including 42 parcels condemned) except the property owned by the Ballwin Fire Protection District (hereinafter called Fire District) which has been permitted to intervene. Separate commissioners were appointed to appraise Fire District's property but, because Fire District had filed a notice of appeal from the order of condemnation, these commissioners were instructed by the court not to proceed.

Relator seeks mandamus to require the court and the commissioners to complete the proceedings. Fire District contends that the State Highway Commission (hereinafter called Commission) has no authority to condemn its property saying it is a political subdivision of the state using this property for governmental functions. (Fire District would be so classed for purposes of taxation under Sec. 15, Art. X, Const.) Of couse, if the Commission has no authority to condemn this property, a peremptory writ of mandamus should not be ordered. To expedite the matter we made the following order: 'Petition for writ of mandamus sustained. Alternative writ ordered issued returnable to Court en Banc within 30 days because appeal in this case appears to be premature. State ex rel. State Highway Commission v. Hammel, Mo.Sup., 290 S.W.2d 113. It is further ordered that no possession of property in question be taken pending the final determination of these proceedings.'

Returns have been filed by respondents and intervenor and relator has filed motion for judgment on the pleadings. Therefore, the well pleaded averments in the returns will be taken as true and those averments of the petition specifically denied by the returns taken as false. State ex rel. Pontiac Realty Co. v. Nangle, Mo.Sup., 315 S.W.2d 214, 216, and cases cited; see also State ex rel. Reeves v. Brady, Mo.Sup., 303 S.W.2d 22, 23. Fire District says there were denials in the return which raised fact issues but these (so far as briefed) concern the right to appoint the Commissioners which is really a question of law and is so treated. The contention is that there is no right or authority to condemn Fire District's property already devoted to a public use and therefore appointment of Commissioners by the court for that purpose could not be valid. Thus decision of the basic issue of the right to condemn will dispose of all contentions made.

Fire District was established under Chapter 321, Secs. 321.010-321.450 (statutory references are to RSMo and V.A.M.S.) and is given authority to exercise the power of eminent domain by Sec. 321.220(10). Its claim is that Commission's authority to condemn is conferred by Sec. 227.120 which after specifying the purposes for which it may condemn in subparagraphs 1-13 states: 'If condemnation becomes necessary, the commission shall have the power to proceed to condemn such lands in the name of the state of Missouri, in accordance with the provisions of chapter 523, RSMo 1949, insofar as the same is applicable to the said state highway commission * * *.' Therefore Fire District says Sec. 523.100 limits Commission's authority so that it only can condemn for a use that will not materially interfere with the present use being made by it and so would not permit taking Fire District's entire property, as proposed, thus completely destroying the use now made of it. The applicable part of this section is as follows: 'In case the lands sought to be appropriated are held by any corporation, the right to appropriate the same by a railroad, telephone or telegraph company shall be limited to such use as shall not materially interfere with the uses to which, by law, the corporation holding the same is authorized to put said lands.' Fire District also cites City of St. Louis v. Moore, 269 Mo. 430, 190 S.W. 867, and Cochran v. Wilson, 287 Mo. 210, 229 S.W. 1050. In the Moore case, we held 'the power of a city to condemn property for street purposes is limited to private property, and does not extend to property of the state or property held by a subordinate agency of the state, for the state, as distinguished from other corporations.' See note on this case 15 Law Series, U. of Mo. Bulletin 15; and annotation 37 L.R.A. (NS) 101.

However, as stated in 1 Nichols on Eminent Domain, 3rd Ed., 131, Sec. 2.2: 'In the determination of the question whether or not property already devoted to a public use can be subjected to the process of eminent domain the primary factor to be considered is the character of the condemnor. If the sovereign, such as the state or the United States on its own behalf and for its own sovereign purposes, seeks to acquire such property by eminent domain, the character of the 'res' as public property, generally, as no inhibiting influence upon the exercise of the power.' Likewise, it is said in 29 C.J.S. Eminent Domain 861-862, Sec. 74 p. 861-862: 'As a general rule, property already devoted to a public use cannot be taken for another public use which will totally destroy or materially impair or interfere with the former use, unless the intention of the legislature that it should be so taken has been manifested in express terms or by necessary implication, mere general authority to exercise the power of eminent domain being in such case insufficient; * * *. However, the general rule does not ordinarily apply where the power of eminent domain is being exercised by the sovereign itself, such as the state or federal government, for its immediate purposes, rather than by a public service corporation or a municipality.'

This matter was recently considered in Riley v. South Carolina State Highway Department, 238 S.C. 19, 118 S.E.2d 809, 811, in which the court said: 'The condemnation here is by the Highway Department as an agency of the State, in behalf of the State and for its own immediate purpose. The condemnor is, in essence, the sovereign. In State Highway Commission v. City of Elizabeth, 102 N.J.Eq. 221, 140 A. 335, 338, the Court said in considering the extent of the power of eminent domain given the State Highway Commission, that it must be borne in mind that the Commission "is an alter ego of the state' itself' and 'not a mere subordinate.' It was held in Elberton Southern Railroad Co. v. State Highway Department, 211 Ga. 838, 89 S.E.2d 645, 648, that under a general power of condemnation, the Highway Department of Georgia could acquire for public road purposes a part of a railroad right of way and in such a condemnation proceeding 'the State, the sovereign itself, is acting by and through its * * * constituted agency, the State Highway Department.' * * * A public highway cannot in the nature of things by constructed for any considerable distance through an inhabited country without crossing property devoted to some other public use. * * * We conclude that the Highway Department, acting for and in behalf of the State, is empowered to condemn respondents' property even if we regard it as devoted to a public use.'

In the New Jersey case cited (140 A. l. c. 336, 337) it is said: 'The only question involved here is whether or not lands of a municipal corporation used for public purposes are subject to condemnation by the state highway commission for state highway purposes to the same extent as lands owned by private individuals or corporations. * * * In this connection, it should be borne in mind that the state highway system is 'for the benefit of all citizens, not merely in or for the benefit of any particular locality or the citizens thereof.' * * * All rights and powers of the municipality are derived from the state, and all its property is held subject to the inherent right of the state to appropriate it to public use whenever the public good may require it. The state gave, and the state may take away.' See also 18 Am. Jur. 719, Eminent Domain, Sec. 93; Welch v. City and County of Denver, 141 Colo. 587, 349 P.2d 352; In re Elimination of Highway-Railroad Crossing in Village of Altamont, 234 App.Div. 129, 254 N.Y.S. 578, 580, and cases cited, appeal dismissed 259 N.Y. 564, 18i N.E. 182; City of Davenport v. Three-Fifths of an Acre of Land, U.S.C.A. 7th, 252 F.2d 354; United States v. Certain Parcels of Land, D.C., 175 F. Supp. 418.

As noted the Commission condemns 'in the name of the state of Missouri' (Sec. 227.120) and, while it is authorized...