Logan v. Matthews

• Decision Date: 02 September 1932
• Docket Number: 32180
• Parties: W. B. Logan, Tormey Jenkins, E. S. Circle, Jay Higginbottom, R. L. Plummer, Tom Paris, S. G. Edwards, E. F. Kerr, E. W. Fink and S. A. Browning, Appellants, v. C. D. Matthews, R. S. Brownlee, Jesse McDonald, W. H. Phares, State Highway Commission of Missouri
• Court: Missouri Supreme Court

52 S.W.2d 989

330 Mo. 1213

W. B. Logan, Tormey Jenkins, E. S. Circle, Jay Higginbottom, R. L. Plummer, Tom Paris, S. G. Edwards, E. F. Kerr, E. W. Fink and S. A. Browning, Appellants, v. C. D. Matthews, R. S. Brownlee, Jesse McDonald, W. H. Phares, State Highway Commission of Missouri

No. 32180

Supreme Court of Missouri

September 2, 1932

Appeal from Cole Circuit Court; Hon. W. S. Stillwell Judge.

Affirmed.

Lou C. Lozier, Irwin & Bushman and Paul D. Kitt for appellants.

The trial court in sustaining defendants' demurrer to plaintiffs' petition and in rendering judgment dismissing plaintiffs' petition because: (1) Plaintiffs have legal capacity to institute and maintain this suit. Castilo v Highway Commission, 312 Mo. 244. (2) The petition states facts sufficient to constitute a cause of action entitling the plaintiffs to relief prayed. Art. 12, Chap. 42, R. S 1929; Sec. 8120, R. S. 1929; State v. Highway Commission, 42 S.W.2d 200; Castilo v. State Highway Commission, 312 Mo. 244; County of St. Louis v. State of Missouri, 315 Mo. 712; State ex rel. v. State Highway Commission, 315 Mo. 756; Sec. 44a, Art. 4, Const. of Mo. (3) The Highway Commission has no power to change the route of the highway in question so as to miss or deviate from the control points of Avalon, Livingston County, Missouri, and Tina, Carroll County, Missouri, and the court erred in holding it had such power. See authorities, supra. (4) Section 44a, Article IV, Constitution adopted in 1928, provides that the proceeds of the bond issue therein authorized shall be used "to complete, widen or otherwise improve the State system of primary and secondary highways as designated and laid out under existing law" thereby confirming and fixing the routes of the state highways as designated by Section 8120, Revised Statutes 1929. State v. Highway Commission, 42 S.W.2d 200; State v. Huffman, 2 S.W.2d 584; State v. Baker, 129 Mo. 486. (5) Federal aid funds are contributions from the United States Government to the several states for highway purposes, upon projects selected by the State Highway Commission, subject only to the approval of the Secretary of Agriculture as to each project including plans and specifications therefor. Rock Island Ry. Co. v. Pub. Serv. Comm., 315 Mo. 1119. (6) The system of highways as designated by Sec. 8120, R. S. 1929, has been approved by the Secretary of Agriculture as the system upon which Federal aid will be granted to Missouri. 23 U.S. Code Anno. secs. 1-53, pp. 3-28.

John W. Mather and John C. Collett for respondents.

(1) Plaintiffs' petition showed that the relocation of U.S. Highway 65 was due to the demands of the Federal Government as a condition precedent to the allotment of Federal aid moneys in Missouri. (2) The defendant, State Highway Commission, is charged with the duty of meeting the requirements of the Federal Government in order that Federal aid be obtained in the construction of State highways. Sec. 8106, R. S. 1929; Par. 3, Sec. 8111, R. S. 1929; Secs. 8092, 8093, 8104, 8106, R. S. 1929; Quisenberry v. Mitchell, 292 S.W. 160; Board of Permanent Road Commissioners of Hunt County v. Johnson, 231 S.W. 859; Ergle v. Richland County Permanent Roads Commission, 116 S.E. 445; Crichton v. Louisiana Highway Commission, 129 So. 373, 170 La. 863; Castilo v. State Highway Commission, 279 S.W. 673, 312 Mo. 244; County of St. Louis v. State Highway Commission, 315 Mo. 707, 286 S.W. 1. (3) The Federal authorities have the power to withhold Federal aid in the event the proposed location of a State highway does not meet with the approval of the Department of Agriculture. Sec. 6, Chap. 1, Title 23, Highways, U.S.C.A.; Secs. 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 19, 21 and 22, Highways, Title 23, U.S.C.A. (4) Highway No. 65 in Livingston and Carroll counties has not been approved for Federal aid because the final plan for the construction of said highway has not been approved by the Department of Agriculture. Sec. 12, Title 23, Highways, U.S.C.A.

Frank, J. White, Gantt and Henwood, JJ., concur; Ellison, J., dissents in separate opinion in which Ragland, J., concurs; Atwood, C. J., not sitting.

OPINION

FRANK

This suit was instituted in the Circuit Court of Cole County by resident citizens and assessed taxpayers of the counties of Livingston and Carroll to enjoin the State Highway Commission from locating and constructing Highway No. 65 through said counties so as to miss the towns of Avalon and Tina. The court below sustained a demurrer to the petition. Plaintiffs declining to further plead, judgment went against them and they appealed.

The road in question is not a part of the 1,500 miles of higher type roads which Section 29 of the Centennial Road Law authorizes the Commission to locate.

The first ground of the demurrer is that plaintiffs have no legal capacity to sue.

The petition alleges that plaintiffs are resident citizens and assessed taxpayers of the counties of Livingston and Carroll in the State of Missouri, and that they bring and prosecute this suit for and on behalf of themselves and all other resident citizens and taxpayers of the State of Missouri similarly situated and interested as such in the cause of action hereinafter set out. This exact question was decided contrary to demurrant's contention in the case of Castilo v. State Highway Commission, 312 Mo. 244, 260, 279 S.W. 673. We are satisfied with what was there said without further discussion.

The next ground of the demurrer is that the petition does not state facts sufficient to constitute a cause of action.

The determination of this ground of the demurrer involves a construction of certain pertinent statutes. We will refer to these statutes as numbered in the 1929 revision. Section 8120 reads as follows:

"There is hereby created and established a state wide connected system of hard surfaced public roads extending into each county of the state, which shall be located, acquired, constructed, reconstructed, and improved and ever after maintained as public roads, and the necessary grading, hard surfacing, bridges and culverts therefor shall be constructed by the State of Missouri. Such state wide connected system of hard surfaced roads shall be known as the 'state highway system,' and consist of highways along the following described routes:"

The statute then proceeds with a description of the routes in each county in the State.

That part of the road in Livingston County is described by this statute as follows:

"Beginning at the Livingston-Grundy County line, thence in a southeasterly direction through Farmersville, Chillicothe and Avalon to the Livingston-Carroll County line."

That part of the road in Carroll County is described thus:

"Beginning at the Livingston-Carroll County line, thence south through Tina to Carrollton."

It will be noted that the statute describes this road as going through the towns of Avalon in Livingston County and Tina in Carroll County. Plaintiffs contend that as the statute routes the road through the towns of Avalon and Tina, the Highway Commission has no authority to locate and construct it on a route that will miss these designated towns. On the other hand the commission says that the Federal Government refused to allow Federal aid on the road unless it was routed on a direct north and south line two miles west of the towns of Avalon and Tina. It is the contention of the commission that the Missouri statutes authorize it to route the road as required by the Federal Government in order to secure Federal aid. The statutes upon which the commission relies to support its contention are, among others, Sections 8092 and 8106. They read respectively as follows:

"That assent is hereby given to an act of the congress of the United States, entitled: 'An act to provide that the United States shall aid the states in the construction of rural post roads and for other purposes.'"

"The commission is hereby directed to comply with the provisions of any act of congress providing for the distribution and expenditure of funds of the United States appropriated by congress for highway construction, and to comply with any of the rules or conditions made by the bureau of public roads of the department of agriculture, or other branch of the United States government, acting under the provisions of federal law in order to secure to the state of Missouri funds allotted to this state by the United States government for highway construction. . . ."

Plaintiffs contend that if it should be conceded that the Highway Commission had authority to make a change in the location of the road when required by the Federal Government, whether or not the Federal Government had requested such a change would be a question of fact to be determined on the trial of the case, and could not be determined on a demurrer to the petition. There would be merit in plaintiffs' contention if this fact did not appear from the face of the petition. The petition alleges that the commission made the following order on April 14, 1931:

"Location of Route 65, Carroll and

Livingston Counties.

"Mr Powers, Engineer of Surveys and Plans, presented the following resolution concerning the change in location of U.S. 65 between Tina and Avalon, in Carroll and Livingston Counties.

"Whereas, Section 29 of the Centennial Road Law described a north and south highway in Livingston County in the following manner: Beginning at the Livingston-Grundy county line, thence in a southerly direction through Farmersville, Chillicothe and Avalon to the Livingston-Carroll county line and also designates a north and south road in Carroll County in the following manner: Beginning at the Livingston-Carroll county line, thence south through Tina to Carrollton, and

"Whereas the State...