State ex rel. Kansas City v. State Highway Commission

• Decision Date: 13 June 1942
• Docket Number: 36429
• Citation: 163 S.W.2d 948,349 Mo. 865
• Parties: State of Missouri at the relation of Kansas City, Missouri, and Clay County, Missouri, Relators, v. State Highway Commission of Missouri
• Court: Missouri Supreme Court

163 S.W.2d 948

349 Mo. 865

State of Missouri at the relation of Kansas City, Missouri, and Clay County, Missouri, Relators, v. State Highway Commission of Missouri

No. 36429

Supreme Court of Missouri

June 13, 1942

Rehearing Denied July 28, 1942.

Writ modified and made permanent.

William E. Kemp, Guy B. Park, Conn Withers, James S. Simrall, Lawson & Hale and Ilus M. Lee for relators.

(1) The A. S. B. Bridge was "taken over" by the State as a permanent part of the state highway system. Lowry v Kansas City, 337 Mo. 47, 85 S.W.2d 104; New York Trust Co. v. Farmers' Irrigation District, 280 F 785. (2) The doctrine of equitable estoppel is applicable. State ex rel. Consolidated School Dist. of Pike County v. Haid, 328 Mo. 739, 41 S.W.2d 806; Town of Montevallo v. School Dist., 268 Mo. 217, 186 S.W. 1078; 10 R. C. L., p. 689, sec. 19; State ex inf. Otto v. School Dist. of Lathrop, 314 Mo. 315, 284 S.W. 135; State ex rel. v. Westport, 116 Mo. 582, 22 S.W. 888; Kircher v. Evers, 247 S.W. 251; State ex rel. v. Miller, 113 Mo.App. 665, 88 S.W. 637; State ex rel. v. Town of Mansfield, 99 Mo.App. 146, 72 S.W. 471; Simpson v. Stoddard County, 173 Mo. 421, 73 S.W. 700; State on inf. Attorney General ex rel. City of California v. Mo. Utilities Co., 339 Mo. 385, 96 S.W.2d 607; State ex rel. Springfield v. Springfield Water Co., 345 Mo. 6, 131 S.W.2d 525; State ex rel. Sikeston v. Mo. Utilities Co., 345 Mo. 732, 137 S.W.2d 456; State ex rel. Sikeston v. Mo. Utilities Co., 331 Mo. 337, 53 S.W.2d 394; State ex rel. Sikeston v. Public Serv. Comm., 336 Mo. 985, 82 S.W.2d 105; Board of Commrs. v. State Highway Commrs., 176 Okla. 207, 55 P.2d 106. (3) If the bridge was "taken over" by the State and became a part of the state highway system, it is the duty of the Commission, under the mandatory provisions of Section 44a, Article IV, of the Constitution, to reimburse relators "to the extent of the value to the state" of the bridge "at the time taken over," not exceeding the amount expended by relators in the "acquisition" of the bridge. Sec. 44a, Art. IV, Mo. Constitution; Sec. 8777, R. S. 1939; 16 C. J. S., p. 120, sec. 61; 103 A. L. R., p. 812; 11 Am. Jur. 686; Kansas City Interurban Ry. Co. v. Davis, 197 Mo. 669, 95 S.W. 881; State ex rel. v. Hitchcock, 241 Mo. 433, 146 S.W. 40. (4) The Act of 1935 (now Sec. 8777, R. S. 1939) is constitutional. However, the question is not properly raised by respondent's pleadings. State ex rel. v. Kirby, 345 Mo. 801, 136 S.W.2d 319; State ex rel. v. Carey, 345 Mo. 811, 136 S.W.2d 324; State ex rel. McWilliams v. Bates, 236 Mo. 262, 138 S.W. 482. (5) The act of the Commission in refusing to reimburse relators was arbitrary and a palpable abuse of its discretion. 44a, Art. IV, Mo. Constitution. (6) Mandamus will lie to compel the performance of a duty where there is an official discretion, if there has been a palpable abuse of discretion. 38 C. J., p. 598, sec. 74; State ex rel. Hultz v. Bowman, 294 S.W. 107; State ex rel. Dolman v. Dickey, 280 Mo. 536, 219 S.W. 363; State ex rel. Attorney General v. Humphreys, 338 Mo. 1091, 93 S.W.2d 924; State ex rel. McCleary v. Adcock, 206 Mo. 550, 105 S.W. 270. (a) In view of the heavy expense incident to a commissionership it would be an injustice to rule, after submission of the case, that mandamus was not a proper remedy. State ex rel. v. Kirby, 345 Mo. 801, 136 S.W.2d 319; State ex rel. McWilliams v. Bates, 235 Mo. 262, 138 S.W. 482; State ex rel. Reynolds v. State Highway Commission, 328 Mo. 859, 42 S.W.2d 193. (7) The value of the bridge to the State at the time it was "taken over."

Louis V. Stigall, Lue C. Lozier, Wallace V. Wilson, Jr., and Wilkie Cunnyngham for respondent.

(1) The A. S. B. Bridge has not, in contemplation of law, been "taken over by the State as a permanent part of the state highway system." (a) There is no provision of law under which the State Highway Commission could have acted which would have authorized it to "take over" the bridge. The State Highway Commission was not authorized to "take over" the bridge by the Centennial Road Law. Laws of Missouri, 1923, p. 354 (as amended, Laws of Missouri 1927, p. 418, R. S. 1939, sec. 8787) did not authorize the Commission to take over the A. S. B. Bridge, because the bridge was not "tendered free and without consideration to the State Highway Commission." Contracts, 17 C. J. S. 420, sec. 70; Restatement of the Law of Contracts, sec. 75. Laws of Missouri, 1929, p. 352 (amended Laws of Missouri, 1931, p. 230, and Laws of Missouri, 1935, p. 344, R. S. Mo., 1939, sec. 8777) is unconstitutional and void in so far as it purports to add any new obligations against the State Road Funds, or purports to force the State Highway Commission to exercise its delegated discretions in any particular way. (b) If it should be assumed that the Constitution authorized the State Highway Commission to "take over" a "bridge" across a navigable stream, it does not follow that the Constitution should be interpreted as authorizing the "taking over" of whetever was attempted to be taken over here. The "bridge" was not "taken over." The Commission could not have "taken over" more than the Bridge Company gave up. The Company gave up only the franchise to collect tolls for certain limited usages of the bridge. Contracts, 17 C. J. S. 687, sec. 294; Kolb v. Golden Rule Baking Co., 9 S.W.2d 840; Wilson v. Wilson, 115 Mo.App. 641, 648. The State did not "take over" an easement for a public highway across the bridge, because that had already attached to the bridge as a condition to obtaining a permit to build it in the first place. Hamill v. Hawks, 50 F.2d 628; Grove Bridge Co. v. State, 133 Okla. 115, 271 P. 846; Scheper v. Clark, 124 S.C. 302, 117 S.E. 599; State ex rel. Allison v. Hannibal & Ralls County Gravel Road Co., 138 Mo. 332, 39 S.W. 910. (c) There was no act by the State Highway Commission which could have constituted a "taking over" of a bridge or any "easement" over it. The execution of the instrument of July 14, 1927, could not have "taken over" the bridge or any "easement," because the instrument was void. The bridge was not "tendered free and without consideration to the State Highway Commission" and, therefore, the law had not delegated any authority to the State Highway Commission to execute such an instrument. The instrument was an attempt to contract and barter away to third persons powers, rights, and discretion delegated by law solely to the State Highway Commission, and to divert the control, management and expenditure of State Road Funds to private purposes, and was, therefore, void. Constitutional Law, 12 C. J. 864, sec. 364; R. S. Mo. 1939, sec. 8763; Board of Commissioners of Canadian County v. State Highway Commissioners, 176 Okla. 207, 55 P.2d 106; Flatt v. Department of Public Works and Bldgs., 335 Ill. 558, 167 N.E. 772; Nairn v. Bean, 48 S.W.2d 584; Aquamsi Land Co. v. City Cape Girardeau, 346 Mo. 524, 142 S.W.2d 335. Every one is presumed to know the law and the limitation on authority of public officials so that there could have been no estoppel. Aetna Ins. Co. v. O'Malley, 343 Mo. 1232, 124 S.W.2d 1164. The physical acts of placing state highway markers on the bridge and paying its maintenance costs from State Road Funds could not have constituted a "taking over" of the bridge or any "easement." State ex rel. Reynolds County v. State Highway Comm., 328 Mo. 858, 42 S.W.2d 193. Apart from minutes of the State Highway Commission (passed long before the adoption of the Constitutional Amendment on November 6, 1928) attempting to authorize the execution of the instrument of July 14, 1927, the Commission has passed no official minutes nor resolutions purporting to "take over" the bridge or any "easement" (either with the consent of interested parties or by force). (2) Even if the A. S. B. Bridge has, in contemplation of law, been "taken over by the State as a permanent part of the state highway system," the Constitution has delegated to the State Highway Commission the sole jurisdiction and authority to determine "the extent of the value to the State of such bridge at the time taken over." Sec. 33, Centennial Road Law, Laws 1929, p. 353, R. S. 1939, sec. 8775; Missouri Constitution, Art. III; R. S. 1939, secs. 8742, 8763; State ex rel. State Highway Comm. v. Thompson, 323 Mo. 742, 19 S.W.2d 642; Castilo v. State Highway Comm., 312 Mo. 244, 279 S.W. 673; State ex rel. Liberty Twp. v. Highway Comm. 315 Mo. 747, 287 S.W. 39; Laws 1929, p. 345. (a) The remedy for inefficiency and poor judgment on the part of public officials is at the hands of the voters and not of the courts. Leonard v. Garland, 190 Ill.App. 216; Board of Permanent Road Commrs. v. Johnson, 231 S.W. 859. (b) It is specifically held that the discretion of administrative bodies as to value should not be controlled by courts. Pittsburg, C. C. & St. L. Ry. Co. v. Backus, 154 U.S. 421, 38 L.Ed. 1031, 14 S.Ct. 1114; State ex rel. State Highway Comm. v. Thompson, 331 Mo. 321, 53 S.W.2d 273. (c) The discretion of determining when refunds should be made for State Highways is left to the State Highway Commission to exercise, "and the exercise of that discretion cannot be controlled by mandamus." State ex rel. Spearman v. State Highway Comm., 331 Mo. 306, 53 S.W.2d 282; Liberty Twp. v. State Highway Comm., 315 Mo. 747, 287 S.W. 39. (d) Where a discretion is vested in a public officer, the courts will by mandamus compel the officer to exercise that discretion, but will not direct how it shall be exercised or what conclusion or judgment shall be reached. State ex rel. Best v. Jones, 155 Mo. 570; State ex rel. Dolman v. Dickey, 280 Mo. 536; State ex rel. Shartel v. Westhues, 320 Mo. 1093. (e) While the courts sometimes lay down rules of law and mandamus officials to...