State ex rel. Lane v. Pankey

• Court: Missouri Supreme Court
• Writing for the Court: Clark, J.
• Citation: State ex rel. Lane v. Pankey, 221 S.W.2d 195, 359 Mo. 118 (Mo. 1949)
• Decision Date: 13 May 1949
• Docket Number: 41324
• Parties: State of Missouri, at the Relation of J. S. Lane and Lucille Lane, His Wife, Relators, v. Riley R. Pankey, John D. Washburn, and Jesse Foster, Judges of the County Court of Linn County, Missouri

221 S.W.2d 195

359 Mo. 118

State of Missouri, at the Relation of J. S. Lane and Lucille Lane, His Wife, Relators, v. Riley R. Pankey, John D. Washburn, and Jesse Foster, Judges of the County Court of Linn County, Missouri

No. 41324

Supreme Court of Missouri

May 13, 1949

Original Proceeding in Prohibition.

Preliminary rule modified and made permanent.

SYLLABUS

Original proceeding in prohibition. The respondent county judges of Linn County were without jurisdiction to exercise the power of eminent domain to divest title from relators for a relocated public road, but the county court must bring a proceeding in the circuit court. But the preliminary rule in prohibition was too broad, as it would prevent the county court from exercising its legislative power to determine the public necessity for the road. Rule modified and made permanent.

H. K. West for relators.

Sections 8473 to 8478, both inclusive, Revised Statutes of Missouri, 1939, are unconstitutional because the county court has no judicial power. Constitution, 1945, Art. I, Sec. 28; Constitution, 1945, Sec. 1, Art. V; State ex rel. Barrett v. May, 235 S.W. 124; State ex rel. Shartel v. Brunk, 34 S.W.2d 94; State ex rel. v. Tincher, 258 Mo. 1; Ward v. P.S.C., 108 S.W.2d 136; State ex rel. York v. Locker, 181 S.W. 1001; Rippeto v. Thompson, 358 Mo. 721, 216 S.W.2d 505.

Marvin C. Hopper, Prosecuting Attorney, and P. M. Marr for respondents.

(1) Secs. 8473 to 8478, both inclusive, R.S. Mo. 1939, are constitutional because they provide a method of handling the county's business, to-wit, the establishment of the county's public roads. Constitution, 1945, Art. VI, Sec. 7. (2) The exclusive jurisdiction of the county court to transact all county business was provided by both the Constitutions of 1875, and of 1945. Constitution, 1875, Art. VI, Sec. 36; Constitution, 1945, Art. VI, Sec. 7. (3) Although administrative boards are not given any judicial powers by the Constitution of 1945, it does recognize that in carrying out their functions their acts may be judicial or quasi-judicial in their nature, and appeals from such decisions are provided by the same article that vests the judicial power in the named courts. Constitution, 1945, Art. V, Secs. 1, 22. (4) The Constitution should be construed as a whole, and its different provisions on the same subject construed together. State v. Arnold, 204 S.W.2d 254.

OPINION

Clark, J.

Original proceeding in this court to prohibit respondents, composing the county court of Linn County, from exercising jurisdiction in a proceeding instituted in the county court for the establishment of a change of public road so that the same will run through the lands of relators. The county court proceeding is in conformity with Sections 8473 to 8478, both inclusive, Revised Statutes Missouri, 1939, [Mo. R.S.A.] which purport to vest in the county court exclusive authority to establish and maintain public roads.

Those statutes were valid when enacted for the Constitution then vested county courts with judicial power and made them courts of record. Under the new Constitution adopted in 1945 county courts are administrative bodies entirely without judicial power.

Relators contend that the new constitution renders the statutes above mentioned invalid, because the establishment of public roads is a judicial function which county courts can no longer exercise.

Respondents, while conceding that county courts no longer have judicial power and that some phases of the establishment of public roads involve the exercise of judicial or quasi judicial power, contend that the new constitution does not invalidate the above statutes. Their reasoning is: that the main features of the establishment and maintenance of public roads are administrative county business and that Section 7, Article VI, of the new Constitution gives the county court exclusive authority to transact all county business.

Recently, in Rippeto et al. v. Thompson, 358 Mo. 721, 216 S.W.2d 505, Division One of this Court held that the authority to establish a private road comprehends judicial action which, under the new Constitution, a county court cannot perform.

Respondents say that case is not in point here because it relates to a private road, which is a matter between private persons and not a part of the county business. Respondents are partially correct in the distinction they make between private and public roads. They are also correct in asserting that many of the functions connected with the establishment and maintenance of public roads, properly fall within the term "county business" as used in the Constitution. But when it becomes necessary to exercise the power of eminent domain to take private property for the purpose of a road, either public or private, the judicial power of a court must be invoked. To that extent our decision in the Rippeto case is pertinent to the issues in the instant case.

The power of eminent domain is an inherent attribute of sovereignty to be exercised by such agencies, for such public purposes and in such manner as may be provided by law. [State ex rel. Highway Comm. v. Gordon, 327 Mo. 160 36 S.W.2d 105; State ex rel. Highway Comm. v. James, 356 Mo. 1161, 205 S.W.2d 534.] Our statutes delegate to various agencies, including counties, the right to invoke the power of eminent domain, but uniformly provide that it must come to fruition by the judgment of a court. We think this is also a constitutional requirement for our Constitution, although it does not grant the power of eminent domain, places various limitations and restrictions upon the exercise of the power and seems to contemplate that it be exercised judicially. We reach this conclusion not only from the "due process" provision, Article I, Section 10, but from Article I, Section 26, which provides that property shall not be taken until compensation shall be paid to the owner "or into court for the owner," and from Article I, Section 28, which...