State ex rel. Reynolds County v. State Highway Com'n

• Citation: 42 S.W.2d 193,328 Mo. 859
• Parties: The State ex rel. County of Reynolds v. State Highway Commission
• Decision Date: 28 September 1931
• Court: United States State Supreme Court of Missouri

42 S.W.2d 193

328 Mo. 859

The State ex rel. County of Reynolds v. State Highway Commission

Supreme Court of Missouri

September 28, 1931

Peremptory writ allowed in Part and dismissed in Part.

J L. Huett, C. M. Buford, Ray B. Lucas, A. M. Meyer and Otto & Potter for relator.

(1) It is the duty of the State Highway Commission to allot and apportion to Reynolds County, on the books of the commission its share of the state road funds, and such allotment and apportionment shall include all refunds due such county for roads or bridges constructed by the county and taken over by the State. Secs. 26, 27, Centennial Road Law, pp. 143-4-5 1st & 2d Ex. Sess., Laws 1921; Sec. 33, Centennial Road Law, as amended Laws 1929, p. 353. (2) All road and bridge projects constructed by counties and thereafter incorporated into the State Highway system are refundable regardless of the time when they were constructed or the law under which they were constructed. Sec. 33, Centennial Road Law, Laws 1921, 1st & 2nd Ex. Sess., pp. 164, 165; Sec. 33 as amended, Laws 1929, p. 353; State ex rel. Liberty Township v. Highway Commission, 315 Mo. 748. (3) The road and bridge projects involved in this suit were constructed with funds contributed by Reynolds County under the provisions of the Hawes Law and all of such projects have been incorporated into the State Highway system. The Centennial Road Law laid out the road across Reynolds County which includes the projects involved in this suit, and such road has been a part of the State Highway system from the beginning. Secs. 29, 37, Centennial Road Law, pp. 145-164, Inc. Section 3 of the Centennial Road Law defines state highways as follows: "A highway constructed or maintained at the cost of the state; a highway constructed with the aid of state funds; any highway included by authority of law in the state highway system." See Centennial Road Law, Section 3. The projects involved in this suit have all been maintained for years at the cost of the State of Missouri; they were all constructed with the aid of state funds; and they have all been included in the state highway system, both by the terms of the Centennial Road Law and by the acts and conduct of the State Highway Commission. The roads in Reynolds County are what is known as secondary roads. Their general course was laid out by the Legislature, and while the Highway Commission has authority to change the routes of the primary system consisting of 1500 miles, it had no authority to change the routes of the secondary system. Castilo v. Highway Commission, 312 Mo. 244; Last paragraph, Section 29, Centennial Road Law, p. 164; State ex rel. St. Louis County v. Highway Commission, 313 Mo. 709. (4) The measure of recovery in this case is the amount which Reynolds County contributed to the cost of the projects described in the petition. The Highway Commission by its own order and resolution has long decided this question. In accordance with the above resolution, the Highway Commission has set up refunds to the credit of some of the counties in Missouri in the aggregate sum of $ 10,000,000, and all of such refunds have been set up on the basis of the original cost of such roads to the counties. In accordance with this policy the present Highway Commission has actually refunded on the basis of costs, the sum of $ 1,000,000 in cash, and from $ 3,000,000 to $ 4,000,000 in additional roads. All of such refunds, both in cash and in additional roads, have been approved by the present State Highway Commission. As further evidence of its policy in this regard, the present Highway Commission has asserted title to old bridges and old roads where new ones have been constructed. Moreover, the State Highway Commission has not only made refunds to counties in full for roads and bridges taken over, but has also set up refunds for roads and bridges destroyed by relocations. In addition to the above, there was abundant evidence offered tending to show that the actual value of these roads and bridges to the state at the time they were taken over exceeded the amount contributed by Reynolds County to their construction.

John W. Mather and Wilkie B. Cunnyngham for respondent.

(1) No particular roads in the state became a part of the State Highway system upon the passage of the Centennial Road Law, but the State Highway Commission was to select each individual part of the State Highway system at some future date. No particular road is a part of that system until after the commission has chosen it and incorporated it. State ex rel. Liberty Township v. State Highway Commission, 315 Mo. 747, 287 S.W. 39; Castilo v. State Highway Commission, 312 Mo. 244, 279 S.W. 673; Johnson v. Underwood, 24 S.W.2d 138; Centennial Road Law, Laws 1921, 1st Ex. Sess., p. 164. (a) The incorporation of any particular road into the State Highway system can only be shown by the official records of the commission. Norborne Land Drainage District Co. v. Cherry Valley Township of Carroll County, 31 S.W.2d 201; Rumsey Mfg. Co. v. Shell City, 21 Mo.App. 175; Openchain-Boyer Co. v. Village of Mercer, 17 S.W.2d 376; Baker Mfg. Co. v. Richmond, 198 S.W. 1128. (b) All "state highways" are not necessarily parts of the "State Highway system." Cent. Road Law, Laws 1921, 1st Ex. Sess., pp. 133-167, secs. 3, 29, 37; State ex rel. Liberty Township v. State Highway Commission, 315 Mo. 747, 287 S.W. 39. (c) Refunds cannot be made for all "state roads" but only for roads that have become a part of the "State Highway system." Cent. Road Law, sec. 33, Laws 1921, 1st Ex. Sess., p. 164. (2) These roads in Reynolds County were not incorporated into the State Highway system by any doctrine of estoppel. The doctrine of estoppel against the public is not favored. Relator received no injury because of its reliance upon any representation or act of the respondent. Hecker v. Bleish, 3 S.W.2d 1008; Kinsolving v. Lumber Co., 300 S.W. 506. All so-called "county roads" in the state are state roads and belong to the state just as much as any road in the State Highway system. They are administered by the county courts as the agents of the state rather than as the agents of the counties. The fact that the state temporarily changes agents for maintaining roads causes no injury on the county. Tebbs v. Platte County, 28 S.W.2d 656; Moxley v. Pike County, 276 Mo. 449; Lamar v. Bolivar Special Road District, 201 S.W. 890; Sec. 10, Hawes Road Law, Laws 1917, p. 488. (3) The amount to be refunded on roads that may be incorporated into the State Highway system is the amount of construction costs the existing road will save the county out of the county's allotment. Cent. Road Law, secs. 26, 33.

OPINION

Gantt, J.

Original proceeding in mandamus. Reynolds County, as relator, seeks to compel the State Highway Commission, as respondent, to refund moneys expended by said county in the construction of certain road and bridge projects therein. Respondent waived the issuance of the writ and made return to the four counts of the petition as and for the writ. The reply is specific denials with a plea that respondent is estopped to deny that the projects are in the State Highway system.

Count one seeks refund for the construction of a bridge across Logan Creek. Count two seeks refund for the construction of bridges across the west fork of Black River, across Mill Creek at Bonneys and across Mill Creek at Wilsons. Count three seeks refund for the construction of 11.827 miles of road extending from Centerville via Lesterville to Iron County. Count four seeks refund for the construction of five miles of road extending from Ellington to Nigger Hill. These projects originated under the Hawes Law (Laws 1917, p. 485). Relator and the State each contributed one-half of the costs.

Respondent admits liability under the first count and that $ 35,000 is available for payment of any refund due relator, and that relator elected to take its refund in cash, as authorized by Section 8127, Revised Statutes 1929. But it contends that projects built under the Hawes Law are not refundable, even though taken into the State Highway system, and it denies that the projects mentioned in counts two, three and four of the petition have been taken into said system. On the other hand, relator contends that projects built under said law are refundable, and contends that the projects mentioned in said counts have been taken into said system. The questions for determination follow:

(1) Are projects built under the Hawes Law refundable if taken into said system?

(2) If the Hawes Law projects are refundable, have the projects mentioned in counts two, three and four been taken into said system?

It may be that it was proper to issue this alternative writ. On that question we entertain some doubt, for several reasons. However, it would be an injustice to refuse to rule the questions after we had proceeded to a submission of the case. [State ex rel. v. Bates, 235 Mo. 262, l. c. 282, 138 S.W. 482.] Therefore, we proceed; and

First: Are projects built under the Hawes Law refundable if taken into the State Highway system? This calls for a consideration of Section 8127, Revised Statutes 1929, which in part follows:

"Counties or other civil subdivisions shall be reimbursed for work done in constructing such part of a road or roads . . . which may become a part of the state highway system to the extent of the value to the state at the time taken over, due consideration being given to the type of road the state would have constructed had such road not already been constructed provided that all reimbursements to the amount of six thousand dollars per mile shall be deducted from the apportionment made to each county. . . .

"Where money has been raised or set apart for the construction...