Reilly v. Sugar Creek Tp. of Harrison County

• Decision Date: 04 May 1940
• Docket Number: 36701
• Citation: 139 S.W.2d 525,345 Mo. 1248
• Parties: Hugh F. Reilly, Vess Oram, John H. Cutshall, M. F. Ward, Sam Drummond and James W. Oram, Appellants, v. Sugar Creek Township of Harrison County, Charles O. Hagerty, Trustee of Sugar Creek Township, and Anderson Foster and Buck Terry, Members of the Sugar Creek Township Board, the Farmers Bank, a Corporation, and W. P. Chambers, Circuit Clerk of Harrison County
• Court: Missouri Supreme Court

139 S.W.2d 525

345 Mo. 1248

Hugh F. Reilly, Vess Oram, John H. Cutshall, M. F. Ward, Sam Drummond and James W. Oram, Appellants, v. Sugar Creek Township of Harrison County, Charles O. Hagerty, Trustee of Sugar Creek Township, and Anderson Foster and Buck Terry, Members of the Sugar Creek Township Board, the Farmers Bank, a Corporation, and W. P. Chambers, Circuit Clerk of Harrison County

No. 36701

Supreme Court of Missouri

May 4, 1940

Appeal from Harrison Circuit Court; Hon. Ben R. Moore Judge.

Affirmed.

Hugh F. Reilly, Jr., and Lancie L. Watts for appellants.

(1) Taxpayers' right to restrain diversion of public funds. Sec. 2761, McQuillin, Mun. Corps. (2 Ed.); 32 C. J., 267 268, 299; 63 C. J., sec. 239, p. 206; Castilo v. State Highway Comm., 312 Mo. 261; Elder v. Hamilton, 227 S.W. 243; Black v. Cornell, 30 Mo.App. 646; Black v. Ross, 37 Mo.App. 250. (2) The township has no right to contribute any funds for the condemnation of rights-of-way for state highways. Secs. 8111, 8131, R. S. Mo 1929; Nevins v. Springfield, 227 Mass. 538, 116 N.E. 881; Paris Mountain Water Co. v. Greenville, 105 S.C. 180, 89 S.E. 669; State ex rel. State Highway Comm. v. Huff, 51 S.W.2d 40; Black v. Cornell, 30 Mo.App. 641. (3) The township has no right to contribute funds from these bonds for the condemnation of rights-of-way for state highways. Thompson v. St. Louis, 253 S.W. 969; Sec. 8111, R. S. 1929; State ex rel. St. Louis County v. State Highway Comm., 286 S.W. 1; Wolff Chemical Co. v. Philadelphia, 217 Pa. 215, 66 A. 344.

Charles A. Miller, George R. Miller and Henry Gannan for respondents.

(1) Taxpayers' right to restrain diversion or public funds. (2) The township has the right to contribute funds for the condemnation of rights-of-way for state highways. Sec. 8131, R. S. 1929; Kelly v. Southworth, 267 P. 692; City of St. Louis v. Deitering, 27 S.W.2d 714; United States v. Whipple Hardware Co., 191 F. 945; Lindberg v. Bennett, 219 N.W. 855; Tiedeman, Real Property, sec. 659; Chambers v. St. Louis, 29 Mo. 574; St. Louis County v. State Highway Comm., 86 S.W.2d 1066. (3) The township has the right to contribute funds from these bonds for condemnation of right of ways for state highways; and township has a right to pay for rights of way out of bond funds. Secs. 7963, 8131, R. S. 1929; State ex rel. v. Affolder, 257 S.W. 493; State ex rel. Wahl v. Speer, 284 Mo. 43. (4) Hudgins v. Mooresville Consol. School Dist., 278 S.W. 769; State ex rel. McMaster v. District Court, 260 P. 137; Verner v. Muller, 72 S.E. 393.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Appellant Reilly and others, as resident taxpayers of Sugar Creek township, Harrison county, Missouri, filed this suit seeking to enjoin the officers of said township The Farmers Bank and the Circuit Clerk of the county from paying an award of $ 1425 to property owners in a condemnation proceeding. The defendants, respondents here, joined in a demurrer which was sustained, and a judgment was entered dismissing plaintiffs' petition. An appeal was duly perfected.

A township being a party to the suit vests this court with appellate jurisdiction. Sherlock v. Duck Creek Township, 338 Mo. 866, 92 S.W.2d 675. The substance of the petition, as stated in the brief of appellants, reads as follows:

"1 Agreement for the selection of State Highway. On February 28, 1935, the County Highway Commission of Harrison County entered into a written contract with the State Highway Commission by the terms of hich a method as provided for the selection of Supplementary State Highway H from the Grundy County line to Route K. This agreement also provided that the County Highway Commission should secure, or cause to be secured, the necessary rights-of-way for this Supplementary State Highway.

"2. County Court orders bond election. On October 19, 1936, the County Court of Harrison County ordered a special election in Sugar Creek Township to be held November 20, 1936, for the purpose of voting $ 9000 in bonds for the construction of a road on the same road as established by the State Highway Commission for state road designated as State Road H (note that at the time this order was entered, as well as at the time set for the election, the rights-of-way had not been obtained).

"3. Election on Bond Issues. On November 20, 1936, the election was held, and the proposal 'to construct and gravel or rock a road', designated as State Road H, was carried.

"4. Issuance and sale of bonds. Thereafter the bonds were duly issued, sold and the proceeds placed on deposit in the Farmers Bank at Gilman City to be expended for the purposes for which they were voted by the citizens of Sugar Creek Township.

"5. Failure to obtain rights-of-way. By this time it was discovered that certain landowners, across whose lands the proposed highway was to be constructed, refused to give or sell a right-of-way across their respective properties.

"6. Condemnation. On July 30, 1937, the State Highway Commission filed a suit to condemn certain lands for the highway in question and such proceedings were had thereunder that an award was made to the property owners totalling $ 1425.

"7. Payments from proceeds of bond money. On October 18, 1937, three days after the award was made, the Township Trustees paid into the Circuit Clerk the sum of $ 1425 to be paid over to the landowners as compensation for their lands condemned by the State Highway Commission.

"8. Filing of Injunction Suit. On November 18, 1937, this action was instituted to enjoin the Circuit Clerk from disbursing this $ 1425 and to prevent the Township Trustees from unlawfully diverting other and additional funds from the proceeds of this bond issue."

The question for decision was correctly stated in appellants' brief as follows:

"Where a township votes for the purpose of 'constructing' a supplementary highway, are the Township Trustees authorized to pay from the proceeds of said bonds damages awarded to landowners for the rights-of-way condemned for such road?"

The authority of a township to raise funds through a bond issue, as authorized by article 5, chapter 42, R. S. Mo. 1929, Mo. Stat. Ann., page 6786, was not questioned. Section 7963 of that article provides that the proceeds derived from the sale of bonds shall be disbursed in paying the costs of constructing or improving roads in such township, including bridges and culverts. A grant of authority to a township to issue bonds for the purpose of raising funds to pay for the construction of roads, necessarily carries with it the authority to pay for rights-of-way upon which to build the roads. If such were not the case the authority to construct roads would be an empty and useless power. This court, in State ex rel. Wahl v. Speer, 284 Mo. 45, l. c. 62, 223 S.W. 655, held that the authority, conferred upon a county by our Constitution, to become indebted for the purpose of building a courthouse, jail, etc., carried with it the authority to use the money for the purpose of acquiring a site upon which to erect the buildings. In the course of the opinion the court said:

"The rule for interpreting statutes, that a power given carries with it, incidentally or by implication, powers not expressed but necessary to render effective the one that is expressed, would require the construction that authority to incur a debt for the erection of a public building, impliedly embraces authority to buy a site for it; and this for the plain reason that without a site the building cannot be erected."

That rule is applicable to the present situation. Note that the voters approved a bond issue to raise funds to construct a road from the Grundy County line to route "K." All of the right-of-way had not been acquired at that time. How could this road be constructed unless the proper route was acquired either by purchase or condemnation?

Appellants, however, contend that even if the township had the authority to purchase land upon which to construct a township road, it did not have authority to pay for land condemned by the state highway department for the purpose of building a state highway. The proposed road in this case was to be constructed as a supplementary state highway. The constitutional amendment of 1928 provides that the county highway commission shall have a voice in the location of these roads. [State ex rel. v. Huff, 330 Mo. 939, 51 S.W.2d 40; Laws of 1927, page 421, now article 2, chapter 42, R. S. Mo. 1929, Mo. Stat. Ann., page 6724.] Section 8131, R. S. Mo. 1929, Mo. Stat. Ann., page 6928, provides as follows:

"Any civil subdivision as defined in this article shall have the power, right and authority, through its proper officers, to contribute out of funds available for road purposes all or a part of the funds necessary for the purchase of rights-of-way for state highways, and convey such rights-of-way, or any other land, to the state of Missouri to be placed under the supervision, management and control of the state highway commission for the construction and maintenance thereupon of state highways and bridges. Funds may be raised for the purpose of this article in such manner and such amounts as may be provided by law for other road purposes in such civil subdivision."

Respondents reply upon the provisions of the above section for authority to pay for the right-of-way located in respondent township and condemned by the state highway department. Section 8131 was enacted in the year 1929, and was made a part and parcel of the law governing the state highway department. This department was created by the legislature in the year 1921. [See Laws 1921, Extra Session, page 131, etc., now article 12, chapter 42, R. S. Mo. 1929, Mo. Stat. Ann., page 6885.] The act of 1921 in no way curtailed the right...