State ex rel. State Highway Commission v. Weinstein

• Decision Date: 09 March 1959
• Docket Number: No. 47136,47136
• Citation: 322 S.W.2d 778
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Relator, v. Honorable Noah WEINSTEIN, Judge of Equity Division, Circuit Court of St. Louis County, Missouri, Respondent.
• Court: Missouri Supreme Court

Page 778

322 S.W.2d 778

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Relator, v. Honorable Noah WEINSTEIN, Judge of Equity Division, Circuit Court of St. Louis County, Missouri, Respondent.

No. 47136.

Supreme Court of Missouri, En Banc.

March 9, 1959.

Rehearing Denied April 13, 1959.

Robert L. Hyder, Wilkie Cunnyngham, Jefferson City, for relator.

Carter, Bull & Baer, Gerald K. Presberg, Doris J. Banta, St. Louis, for respondent.

HYDE, Judge.

Prohibition to prevent respondent from proceeding in a case entitled St. Louis County Water Company v. State Highway Commission in which the Water Company seeks review in the Circuit Court of St. Louis County, under the provisions of Chapter 536, particularly Secs. 536.100 and 536.110 (statutory references are to RSMo and V.A.M.S.) of an order of the Commission directing relocation of its water mains on state owned highway right of way at its own expense. The question for decision is whether these and other provisions of the Administrative Procedure and Review Act (hereinafter referred to as Chapter 536) apply to this case.

The Commission planned and entered into a contract for the construction of an express highway in St. Louis County, known as the Mark Twain Expressway, which is a part of the National System of Interstate and Defense Highways, and construction thereof is under way. This requires widening of existing pavements and construction of additional pavement, so that certain Water Company pipe lines would be either under new pavement or in the median strip between through-way lanes. The Commission ordered relocation of these pipe lines in accordance with plans prepared by it. Thereafter, at the request of the Water Company, it was given a hearing as to its claims before the Commission, following which the Commission reaffirmed its order for relocation. However, this was not the kind of hearing required by Sec. 536.070 for contested cases. Thereafter, the Water Company filed its petition for review and stay of the order of the Commission, under Sec. 536.110, in the Circuit Court of St. Louis County. A motion to dismiss for want of jurisdiction, filed by the Commission, was overruled and a stay order issued. However, the building of the expressway was continued with the pavement built over the present pipe, the Water Company agreeing that it would prefer to abandon the pipe, rather than dig up and relocate it, because the expense would be greater than laying new pipe in the specified new location. All proceedings before the Commission, including the statements made and exhibits submitted at the hearing, were made a part of the Commission's petition or respondent's return and reference to other facts shown thereby will be hereinafter made. After respondent's return was filed, the Commission filed a motion for judgment on the pleadings.

If the provisions of Chapter 536 do not apply to this case, the Commission is correct in stating that the venue would be in Cole County. State ex rel. State Highway Commission of Missouri v. Bates, 317 Mo. 696, 296 S.W. 418; Ward v. Public Service Commission, 341 Mo. 227, 108 S.W.2d 136; State ex rel. Leggett v. Jensen, Mo.Sup., 318 S.W.2d 353. The Commission says Chapter 536 does not apply because it says its determination and order as to the proper location within the highway right of way for everything therein which could possibly affect the construction, maintenance, efficiency, and safety of the highway--water pipes under the ground, as well as pavements, ditches, median strips, above ground, and their proper interrelationship with each other--where legislative acts, expressly directed and permitted by Const.Mo.1945, Art. IV, Secs. 29-32. The Commission also says provisions of Chapter 536 which attempt to go beyond Sec. 22, Art. V, Constitution (authorizing direct review by the courts of administrative decisions 'which are judicial or quasi-judicial and affect private rights'), by authorizing review of legislative decisions, would be unconstitutional as being in violation of Art. II, Const., providing for three distinct departments of government.

The Commission says: 'The State Highway Commission is, in a sense, a dual personality. The Constitution itself gives the State Highway Commission all the authority and power of the State to determine the proper location, relocation, design, and maintenance for Interstate Route 70. The Commission's decisions with respect thereto are not merely made in an attempt to determine and carry out the requirements of the Legislature. They are not administrative determinations. On the contrary, they are to be made according to what the Commission believes to be the needs, desires, public welfare, and expedient thing to do on the principle of policy. These are purely legislative decisions. In addition to these legislative decisions, the Constitution also makes the State Highway Commission the executive agent of the State to administer and carry out such decisions concerning constructing and maintaining the state highways as are directed by the legislative decisions of the same Commission.'

However, conceding that the location and plans for highway construction are legislative, policy and discretionary matters not subject to review, the question is whether the Commission is acting in its executive or administrative capacity in ordering the Water Company to relocate its mains because of its views as to their effect on the highway built on the plans adopted. The Water Company had placed its pipes in the highway right of way under the provisions of Sec. 227.240, which is as follows:

'1. The location and removal of all telephone, telegraph and electric light and power transmission lines, poles, wires, and conduits and all pipe lines and tramways, erected or constructed, or hereafter to be erected or constructed by any corporation, association or persons, within the right of way of any state highway, insofar as the public travel and traffic is concerned, and insofar as the same may interfere with the construction or maintenance of any such highway, shall be under the control and supervision of the state highway commission.

'2. The commission or some officer selected by the commission shall serve a written notice upon the person or corporation owning or maintaining any such lines, poles, wires, conduits, pipe lines, or tramways, which notice shall contain a plan or chart indicating the places on the right of way at which such lines, poles, wires, conduits, pipe lines or tramways may be maintained. The notice shall also state the time when the work of hard surfacing said roads is proposed to commence, and shall further state that a hearing shall be had upon the proposed plan of location and matters incidental thereto, giving the place and date of such hearing. Immediately after such hearing the said owner shall be given a notice of the findings and orders of the commission and shall be given a reasonable time thereafter to comply therewith; provided, however, that the effect of any change ordered by the commission shall not be to remove all or any part of such lines, poles, wires, conduits, pipe lines or tramways from the right of way of the highway. The removal of the same shall be made at the cost and expense of the owners thereof unless otherwise provided by said commission, and in the event of the failure of such owners to remove the same at the time so determined they may be removed by the state highway commission, or under its direction, and the cost thereof collected from such owners, and such owners shall not be liable in any way to any person for the placing and maintaining of such lines, poles, wires, conduits, pipe lines and tramways at the places prescribed by the commission.

'3. The commission is authorized in the name of the state of Missouri, to institute and maintain, throught the attorney general, such suits and actions as may be necessary to enforce the provisions of this section. Any corporation, association or the officers or agents of such corporations or associations, or any other person who shall erect or maintain any such lines, poles, wires, conduits, pipe lines or tramways, within the right of way of such roads which are hardsurfaced, which are not in accordance with such orders of the commission, shall be deemed guilty of a misdemeanor.'

Although the Commission is given authority to designate the location of pipe lines and to require relocation, it has no right to exclude them from the right of way. State ex rel. State Highway Commission v. Union Electric Co. of Missouri, Mo.App., 142 S.W.2d 1099, 1101. In that case, it was said, the effect of this statute 'is to place the matter of the location of the lines and appurtenances of public utilities under the control and supervision of the commission, not, however, for any and all manner of regulation which may perchance seem expedient to the commission, but only in so far as the location of such lines and appurtenances may affect the construction, maintenance, and ordinary use of the highways'; and that 'the only orders which the commission may lawfully enter under Section 8109 [now Sec. 227.240] are those which are designed to prevent interference with traffic on the highways and with highway construction and maintenance.' See also State ex rel. State Highway Commission v. Kansas City Power & Light Co., 232 Mo.App. 308, 105 S.W.2d 1085; and Sec. 393.010.

Our view is that the effect of authorizing a particular location is to give the company what amounts to a license to use that location for its pipe line; and that to order a relocation is in effect the revocation or at least modification of that license. This distinguishes this case from Ellis v. State Department of Public Health and Welfare, 365 Mo. 614, 285 S.W.2d 634, in which we held our Administrative Procedure Act did not apply to gratuities (old age and dependant children assistance); because the Water Company had the right to place...