Selecman v. Matthews

• Decision Date: 11 February 1929
• Docket Number: 29440
• Parties: A. R. Selecman et al., Appellants, v. C. D. Matthews et al., Constituting State Highway Commission
• Court: Missouri Supreme Court

15 S.W.2d 788

321 Mo. 1047

A. R. Selecman et al., Appellants, v. C. D. Matthews et al., Constituting State Highway Commission

No. 29440

Supreme Court of Missouri

February 11, 1929

Motion for Rehearing Overruled March 27, 1929.

Appeal from Cole Circuit Court; Hon. H. J. Westhues, Judge.

Affirmed.

Irwin & Bushman and Randolph & Randolph for appellants.

(1) The Highway Commission in the location of routes of primary or higher-type state roads must act "in the interest of economy and directness of routes." Laws 1921 (1 Ex Sess.), p. 164, last paragraph of Section 29; Castilo v State Highway Comm., 312 Mo. 270. (2) By the Centennial Road Law the Legislature intended as many centers of population as possible should be connected by primary or higher-type roads within the limit of 1500 miles of such roads, and therefore the saving of mileage by directness of route should be the first consideration of the Highway Commission in the location of such roads. Laws 1921 (1 Ex Sess.), p. 145, sec. 29; Castilo v. State Highway Comm., 312 Mo. 270. (3) The Highway Commission is forbidden to make changes in the location of routes of primary or higher-type roads so as to increase the mileage thereof. Laws 1921 (1 Ex. Sess.), p. 163, last paragraph of Section 29; Castilo v. State Highway Comm., 312 Mo. 269. (4) Since defendants' motion to dissolve the temporary injunction constituted a demurrer to plaintiffs' petition, the truth of all the facts set up in the petition stand admitted. Anderson v. Inter-River Drainage & Levee Dist., 309 Mo. 189; Normandy Consl. School Dist. v. Harrol, 315 Mo. 602. (5) The attempted change in the location of this road from the east to the west route cannot be justified as a proper exercise of discretion, but it was a violation of the law and a gross abuse of discretion.

Edgar Shook for respondents.

The petition does not state facts sufficient to constitute a cause of action, because: (1) The State Highway Commission in adopting the west location made an original location between designated lines and points and did not change in any particular the statutory designation of said highway, and, therefore, the entire location was in its discretion. Laws 1921 (1 Ex. Sess.), p. 145; Castilo v. State Highway Comm., 312 Mo. 274; State ex rel. Liberty Township v. Highway Comm., 287 S.W. 43. (2) Since no change in statutory designation was made by the Highway Commission, the questions of economy and directness of route cannot be in this case, even though this highway was designated a higher type or primary state highway. Laws (1 Ex. Sess.) 1921, sec. 29, pp. 163, 164. (3) The resolution of the Highway Commission passed after April 6, 1927, adopting the west location, was controlling over its prior orders or resolutions affecting the location of that portion of U.S. Highway No. 71 involved in this case. Laws (1 Ex. Sess.) 1921, sec. 4, pp. 133, 134; Sec. 32, p. 164; Sec. 37, p. 166; Singletary v. Heathman, 300 S.W. 242. (4) The designation as a higher type state highway and the location of all of that portion of U.S. Highway 71 involved in this case, as well as the power to change the statutory designated route, were discretionary with the State Highway Commission. Laws (1 Ex. Sess.) 1921, sec. 29, pp. 145, 163, 164; Castilo v. State Highway Comm., 312 Mo. 269. (5) That discretion is not alleged to have been exercised in bad faith or fraud, nor to have been abused in any of these particulars, and, therefore, it will not be controlled by injunction. 32 C. J. 242; Sec. 384, p. 253; Sec. 398; 22 Cyc. 879-880, e, b; 22 R. C. L. 490, sec. 170; Sec. 173, p. 493; 2 High on Injunctions (4 Ed.) 1324-25, sec. 1311; Sec. 1326, p. 1338; 4 Pomeroy's Eq. Juris. (4 Ed.) 4064, sec. 1751; Kearney v. Laird, 164 Mo.App. 406.

OPINION

Ragland, J.

Appellants state their case as follows:

"This action was begun in the Circuit Court of Cole County by plaintiffs, who are resident taxpayers of Andrew County Missouri, seeking an injunction against the members of the State Highway Commission to restrain them from changing the location of the route on Primary Road No. 27 from Savannah, Missouri, north, to connect with the present pavement thereon near the Andrew-Nodaway County line, and to restrain them from letting contracts for construction work upon the proposed changed route. This road is now known as United States Highway No. 71.

"Shortly before June 22, 1925, the Highway Commission designated as the route for this part of that road an approximately straight line from Savannah to the pavement near the Andrew-Nodaway County line, and had same surveyed and maps and profiles thereof made. That designated route as it will be known in the discussion hereafter is called the 'east route.' The order designating this route was entered of record in the minutes of the meeting of the Highway Commission and it was stated in that order that the reason for so locating the road was because 'the eastern route is more direct and more nearly complies with the intent of the law.' That order stood of record until sometime shortly after the 6th day of April, 1927, during which time the personnel of the Highway Commission changed. Shortly after April 6, 1927, the then commission entered an order on their record changing the location of that portion of said highway from the said 'east route' to what was called therein, and will be hereafter referred to as, the 'Bennett Lane,' or 'West route.'

"In addition to the above the petition also discloses facts in regard to the two routes as follows: The east route follows approximately an air line between Savannah and the north connecting point. The west or Bennett Lane route angles northwest from Savannah for a distance of several miles, then goes straight north for some distance, then angles back to the east again to meet the connection with the pavement near the Andrew-Nodaway County line. The result of this indirection is that the west route is substantially one mile longer than the east route.

"Then in addition to this lengthening of the primary road for one mile, the proposed west route takes the road farther away from the larger centers of population than would the east route. That is, the east route practically touches on the towns of Rosendale, Bolckow and Barnard. Also a secondary road known as Highway No. 48 coming west from King City through the vicinity of the towns of Whitesville, Rea, Wyeth and Rosendale will have to be extended west to connect with this west route, with the result that the persons coming from the east to Savannah and St. Joseph by that route will be forced to travel approximately four miles farther than would be necessary if the road were located and improved along the said east route.

"The east route is not only more direct as above stated, but better serves centers of population totaling approximately 7000 people, while, by comparison, the west route comes slightly nearer to only about 2000 people. The east route practically touches on the three towns above mentioned, while the west route comes near no towns whatever over its entire length from Savannah to the said connection with the present pavement.

"In addition to all of that, the cost of construction of the two routes is approximately the same, and the cost of maintenance in the future on the east route will be less because of the necessity for less guttering thereon.

"Since the trial court sustained defendants' motion to dissolve the temporary injunction, and since said motion was in effect a demurrer to plaintiffs' petition, the case now comes...