State ex rel. Spearman v. Missouri State Highway Com'n

• Decision Date: 05 October 1932
• Citation: 53 S.W.2d 282,331 Mo. 306
• Parties: State ex rel. Fred Spearman et al., Relators, v. Missouri State Highway Commission et al
• Court: Missouri Supreme Court

53 S.W.2d 282

331 Mo. 306

State ex rel. Fred Spearman et al., Relators, v. Missouri State Highway Commission et al

Supreme Court of Missouri

October 5, 1932

Peremptory writ denied.

Irwin & Bushman for relators.

John W. Mather and John C. Collett for respondents.

(1) All allotments to Miller County must be based upon the estimated cost of that part of the state highway system in Miller County. Sec. 26, Centennial Road Law, now Sec. 8117, R. S 1929. (2) The estimated cost of the state highway system in Miller County cannot include the estimated cost of a bridge over a navigable stream. Secs. 8117, 8139, R. S. 1929; Sec 8119, R. S. 1929 (Laws 1921, 1st Ex. Sess., sec. 28, p. 131); Laws 1921, 1st Ex. Sess., sec. 33, p. 164; Laws 1921, 1st Ex Sess., sec. 34, p. 165; Laws 1923, p. 354, amended, Laws 1927, p. 418, now Sec. 8139; Laws 1929, pp. 352, 353; Sec. 8126, R. S. 1929. (3) The pleadings allege and the motion for judgment on the pleadings admits the navigability of the Osage River at the point of intersection of the river and Highway No. 17. State ex rel. Copeland v. Wurdeman, 245 S.W. 551, 295 Mo. 458. (4) The apportionment of all available funds for road construction on the secondary state highway system must be based upon the estimate provided for in Sec. 8117, R. S. 1929. (5) A bridge as such cannot be properly designated as a part of the so-called 300 mile system of additional roads provided for by Article 4, Section 44a of the Constitution. State ex rel. Russell v. State Highway Commission, 42 S.W.2d 205. (6) The location of the 300 mile system of additional highways is discretionary with the Highway Commission and mandamus will not lie to compel the Highway Commission to designate a bridge as a part of that system. Sec. 44a, Art. 4, Const. of Mo.; State ex rel. Russell v. State Highway Commission, 42 S.W.2d 196; Castilo v. State Highway Comm., 312 Mo. 244, 279 S.W. 673; State ex rel. Gehrig v. Medley, 28 S.W.2d 1040; Strahan v. County Court, 65 Mo. 644; State ex rel. Best v. Jones, 155 Mo. 570; State ex rel. v. Thomas, 183 Mo. 220.

Morgan M. Moulder, L. Newton Wylder and R. L. Hecker; Amici Curiae.

(1) The law is mandatory that roads must be completed in each county on the basis of their proportionate mileage irrespective of the cost of the construction. Sec. 8120, R. S. 1929. (2) Navigability of Osage River is no defense. (3) The State Highway Commission has no discretion but must build a bridge.

OPINION

Henwood, J.

This is an original proceeding in mandamus against the State Highway Commission and the members thereof in their official capacity, by which fifteen resident taxpayers of Miller County, acting for themselves and for other persons of like interests, seek to compel the State Highway Commission to erect at the cost of the State a bridge across the Osage River in Miller County, where State Highway No. 17 is intersected by said river.

An alternative writ of mandamus has been issued, respondents have filed their return thereto, and relators have filed a motion for judgment on the pleadings.

In addition to the briefs filed by counsel for relators and respondents, Messrs. Morgan M. Moulder, L. Newton Wyler and R. L. Hecker, members of the bar, have filed suggestions, as amici curiae, in support of relators' position herein.

It is admitted that State Highway No. 17, which extends in a northerly and southerly direction through Miller County, is one of the secondary state highways provided for in the Centennial Road Law and is now being constructed as such; that said highway is intersected at Tuscumbia, in Miller County, by the Osage River, which flows from the west in an easterly direction through the central part of Miller County; that said river is navigable at the point and above and below the point where it intersects said highway; that the navigable portions of said river are entirely within this State; and that at the point where said highway is intersected by said river there is now and for many years has been a privately owned toll bridge used by travelers in crossing said river at said point.

The question presented for our determination is whether under existing law the State Highway Commission may be compelled by a mandate of this court to erect at the cost of the State a bridge such as the one sought by relators, that is, a bridge across a navigable river at a point where such a river intersects a secondary state highway.

In considering this question we have reviewed the development of our state highway law from 1921 to the present time.

We will first refer to certain parts of Sections 8117, 8119 and 8120, Revised Statutes 1929 (originally Sections 26, 28 and 29 of the Centennial Road Law), which follow:

"Section 8117. . . . All available funds, including federal aid, shall be apportioned and expended upon the state road system as follows: To each county shall be apportioned an amount to be ascertained by multiplying the total number of miles of the state-wide system of roads in such county, as designated herein, by $ 6,000: Provided, that if this amount is insufficient to complete such state highways of the type needed to serve the needs of said county of a minimum type of properly bound gravel road or its equivalent of at least twelve feet in surface width and built up to the standard required by the federal government, such additional money shall be added as shall be required to complete the construction of the state highways and connect them with like roads of surrounding counties and states. In making the apportionment as herein set forth, the commission, after estimating the amount required to build such roads in each county, shall use such estimates as a basis of apportionment of two-thirds of such funds, but in no case shall such estimates be less than $ 6,000 per mile; the intention being that the commission shall make such apportionment for the several counties as shall result in the construction of roads for all counties on the basis of their proportionate mileage, irrespective of the difference in cost of construction of the said properly bound gravel roads: Provided further, that not to exceed one-third of all such funds as they become available may be used in the construction of approximately fifteen hundred miles of higher type roads connecting the principal population centers, which roads shall be designated before any apportionment herein provided for is made: Provided, however , that for the construction of such higher type roads, not to exceed $ 6,000 per mile thereof shall be taken from the said remaining two-thirds of such available funds. . . . [Laws 1921, 1st Ex. Sess., p. 131, sec. 26.]" (Our italics.)

"Sec. 8119. . . . Bridges and culverts over all nonnavigable streams which are located at points where such streams intersect the state highway system shall be regarded as part of the state highway. [Laws 1921, 1st Ex. Sess., p. 131, sec. 28.]" (Our italics.)

"Sec 8120. -- There is hereby created and established a state wide connected system of hard surfaced public roads extending into each county of the state, which shall be located, acquired, constructed, reconstructed and improved and ever after maintained as public roads, and the necessary grading, hard surfacing, bridges and culverts therefor shall be constructed by the State of Missouri. Such state wide connected system of hard surfaced roads shall be known as the 'state highway system,' and shall consist of highways along the following described routes: . . .

"Miller County. -- Beginning at the ...