Joseph L. Pohl, Contractor v. State Highway Commission
| Decision Date | 08 July 1968 |
| Docket Number | No. 53749,53749 |
| Citation | 431 S.W.2d 99 |
| Parties | JOSEPH L. POHL, CONTRACTOR, a Corporation, et al., Appellants, Stephen T. Burns et al., Intervenors-Appellants, v. The STATE HIGHWAY COMMISSION of Missouri et al., Respondents. |
| Court | Missouri Supreme Court |
James W. Kelly, Cullen Coil, Jefferson City, for plaintiffs-appellants, Carson, Inglish, Monaco & Coil, Jefferson City, of counsel.
Robert L. Hyder, Chief Counsel, State Highway Commission, Jefferson City, Richmond C. Coburn, Sp. Counsel, Missouri Turnpike Authority, St. Louis, for respondents.
Douglas B. Remmers, Gen. Counsel, Automobile Club of Mo., Wm. W. Quigg, Goller & Hedrick, Jefferson City, for Automobile Club of Mo., amicus curiae.
This is an injunction suit by taxpayers who pay highway user taxes which go into the state road fund, to restrain the state highway commission and the Missouri turnpike authority from issuing revenue bonds to build a toll road or from carrying out the provisions of an agreement into which defendants have entered, particularly as regards the proposed leasing of the toll road by the highway commission from the turnpike authority at a rental to be paid by the highway commission from the state road fund sufficient to retire the obligation created by the revenue bonds, on the ground the toll road authority act, §§ 225.010--320, Laws of 1967, Senate Bill No. 2, is unconstitutional. 1 The trial court found the issues for the defendants, and plaintiffs-intervenors appeal. We reverse and remand with directions to enter judgment in favor of plaintiffs-intervenors.
The toll road authority act creates a 'Missouri Turnpike Authority' and empowers it to 'construct, maintain, repair, reconstruct and operate turnpike projects' at locations selected by it, § 225.060(4), and to pay the cost by turnpike revenue bonds 'payable solely from tolls, revenues or other funds pledged for their payment', § 225.060(5). The act authorizes the authority to lease the toll road to the highway commission 'for a consideration not less than the amount required to pay all obligations of the authority respecting the project or projects leased in conformity with the resolution authorizing or trust agreement securing the outstanding revenue bonds issued therefor by the authority * * *', § 225.060(10). The act provides that the revenue bonds shall not constitute a debt, liability or obligation to the state or a pledge of its faith and credit, but shall be payable 'solely from the revenues and other funds' pledged or provided therefor, § 225.200. The act provides that when the revenue bonds have been paid, then, at the discretion of the highway commission title to the project shall vest in the commission and the project shall thereafter be operated and maintained by the commission as a part of the state highway system; if not incorporated into the state highway system, the authority continues to operate the project as a toll road, but at a reduced toll, § 225.250. The act has numerous other provisions which need not be outlined here.
By an agreement made October 27, 1967 (the act became effective October 13, 1967), the commission and the authority have agreed that when the authority has undertaken the construction of a toll road in a location approved by the commission and determined by it to be an 'essential and integral' part of the state highway system, the commission will enter into a lease with the authority, at the time of or prior to issuance of the revenue bonds, whereby the commission 'shall incorporate said turnpike project into the state system of highways' 2 and 'shall agree to pay from the State Road Fund a reasonable rental for the completed facility involved, which said rental shall be sufficient to retire the obligation created by the revenue bonds issued for the project by the Authority in accordance with their terms and the trust agreement relating to same, in no event to exceed a term of 40 years.'
In addition to the briefs of the parties we also have before us the brief of the Automobile Club of Missouri as amicus curiae. The parties raise numerous constitutional issues. We need reach only one of these: that the act violates § 30(b), Art. IV of the 1945 Constitution by permitting an unconstitutional diversion of allocated revenue from free highways to toll roads.
In deciding this issue we determine first that a turnpike or toll road project authorized under the toll road authority act is not a state highway or part of the state highway system within the meaning of §§ 29, 30(a) and 30(b), Art. IV of the 1945 Constitution. Various provisions of the act make this plain. As stated earlier, the act expressly provides that a toll road project does not become a part of the state highway system until it is paid for, and then only if the highway commission, in its discretion, elects to take it. It is only thereafter that it may be operated and maintained by the highway commission as part of the state highway system. If it is not incorporated into the state highway system, it continues its character as a toll road, operated by the toll road authority, but at reduced tolls, sufficient to cover maintenance and repair, § 225.250.
Sec. 225.130 authorizes the authority to contract with any corporation for the placing of utility lines in the right-of-way of the project and to charge rentals therefor. If the toll road project were part of the state highway system, a rental charge could not be exacted from a public utility for such use of right-of-way under the present statute, § 227.240; State ex rel. State Highway Commission v. Weinstein (Mo.Sup. banc) 322 S.W.2d 778; State ex inf. McKittrick v. Southwestern Bell Telephone Company, banc, 338 Mo. 617, 92 S.W.2d 612; State ex rel. State Highway Commission v. Union Electric Company of Missouri (Mo.App.) 142 S.W.2d 1099, 1102, and State ex rel. State Highway Commission v. Kansas City Power & Light Co., 232 Mo.App. 308, 105 S.W.2d 1085.
Other powers granted the authority demonstrate further the legislature did not regard the toll roads as part of the state highway system. Under § 29, Art. IV, 1945 Constitution, the highway commission has exclusive authority over the location, construction, and maintenance of all state highways and power of limitation of access to such highways. Yet by §§ 225.060(4) and 225.060(8), the toll road authority is empowered to fix the location of the project and to construct and maintain the same, and to locate, establish and limit access and egress from rights-of-way to the toll road, which the legislature, mindful of its mandate to comply with the constitutional provisions, could lawfully authorize to be done only if it intended that a turnpike or toll road not be considered a part of the state highway system. In addition the legislature made it clear, by § 225.250, that a turnpike or toll road project was not to be a part of the state highway system until it was fully paid for. All in all, there is nothing in the act indicating that the legislature intended to designate a toll road as part of the state highway system.
Further on this point, we note the defendants in their brief in discussing the power given the toll road authority argue that it does not extend to state highways, but to 'the creation of new toll roads not a part of the State Highway System'. Defendants also, in the agreement of October 27, 1967, speak in terms of 'taking the completed highway or highways into the State Highway System' and dealing with projects which are 'to be considered for incorporation in the State Highway System.' It is evident the defendants, too, do not regard the toll roads as part of the state highway system.
Now, what does the toll road authority act provide with respect to payment of the toll road bonds, in the event the parties make a lease of the toll road project to the highway commission, which the agreement of October 27, 1967 makes clear is what the parties intend to do? By § 225.060(10), as plaintiffs-intervenors point out, the legislature has solemnly authorized the highway commission to agree to pay to the toll road authority a rental for the project of a sum 'not less than the amount required to pay all obligations of the authority respecting the project or projects leased.' This would include the obligation to retire the bonds issued by the authority. Sec. 225.060(10) also authorizes the authority to authorize the commission, if it leases the toll road, to fix and collect the tolls and other charges for the use of the project. The commission is authorized to use the funds thus collected for the purposes specified in the lease, one of which presumably would be to pay off the principal and interest on the revenue bonds as they come due. But suppose the tolls are not sufficient? Then to comply with the legislatively authorized agreement to pay not less than the amount required to pay all obligations of the authority respecting the project, the commission would have to resort to other funds available to it.
The only other funds available to the state highway commission are the funds it receives under § 30(b), Art. IV, 1945 Constitution, whereby, 'For the purpose of constructing and maintaining an adequate system of connected state highways' all state revenue from highway users, including state license fees and motor vehicle fuel taxes, less certain administrative expenses, are to be 'credited to a special fund and stand appropriated without legislative action for the following purposes, and no other.' Then follow provisions for the payment of principal and interest on any outstanding road bonds with directions that any balance shall be credited to the state road fund and expended by the state highway commission for five expressly set out purposes, none of which include toll roads, but which, instead, relate to state highways, bridges and tunnels and the state system of highways. 3
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