State ex rel. State Highway Com'n v. Thompson

• Citation: 53 S.W.2d 273,331 Mo. 321
• Parties: State ex rel. State Highway Commission, Relator, v. L. D. Thompson, State Auditor
• Decision Date: 05 October 1932
• Court: United States State Supreme Court of Missouri

53 S.W.2d 273

331 Mo. 321

State ex rel. State Highway Commission, Relator, v. L. D. Thompson, State Auditor

Supreme Court of Missouri

October 5, 1932

Peremptory writ awarded.

John W. Mather and John C. Collet for relator.

(1) The Constitutional Amendment of 1928 (a) creates funds to be expended under the direction and supervision of the Highway Commission in the construction of highways and bridges, but (b) leaves to the Legislature the apportionment of the funds. (c) The Legislature apportioned two-thirds of all road funds among the various counties for the construction of the Secondary Highway System, but (d) provided that such apportionment should not include the cost of bridges over navigable streams. (a) Pars. 1 and 3, Sec. 44a, Art. IV Constitution; (b) Par. 16, Sec. 44a, Art. IV, Constitution; (c) Secs. 8117, 8139, R. S. 1929. (2) No such limitation was placed on the use of the remaining one-third of the road money. Sec. 8117, 8139, R. S. 1929. (3) The Constitutional Amendment of 1928 considered in connection with the Amendment of 1921 and its construction by the Legislature authorizes the construction of bridges over navigable streams on the "Primary," "Traffic Relief" and "300-mile" highways. Const. Amend. of 1921; Sec 8119, R. S. 1929; Laws 1921, 1st Ex. Sess., sec. 33, p. 164; Laws 1923, p. 354; Gantt v. Brown, 244 Mo. 299; State ex rel. Mabry v. Patterson, 229 Mo. 384; Constitutional Amendment 1928 (Sec. 44a, Art. IV); In re Oppenstein, 289 Mo. 437, 233 S.W. 440; State ex rel Russell v. State Highway Comm., 42 S.W.2d 203; State ex rel. v. Gordon, 36 S.W.2d 107. (4) The words "Construction of highways and bridges" as used in the 1928 amendment includes the purchase of bridges already constructed, because: (a) The legislative construction of the amendment will be considered. Lynch v. Murphy, 119 Mo. 174; Gantt v. Brown, 244 Mo. 299. (b) The Legislature construed the amendment to authorize the purchase of bridges. Sec. 8111, R. S. 1929. (c) The legislative construction of the amendment will be sustained by the court if that can be reasonably done. Lynch v. Murphy, 119 Mo. 174. (d) A bridge is a constituent part of a highway. Point Bridge Co. v. Railway Co., 87 A. 614, 240 Pa. 105; Independent Highway Dist. v. Dwyer, 165 N.W. 297, 166 Wis. 372; State v. Vantage Bridge Co., 236 P. 280, 134 Wash. 568; Steppenback v. Multnomat Co., 142 P. 832, 71 Ore. 493. (e) To "construct" is defined by Webster to mean "to put together the constituted parts of something in their proper place or order." Morse v. City of Westport, 110 Mo. 507. (f) The authority to do everything necessary to carry out the authority to assemble the constituent parts of the highway is implied, hence the authority to purchase a bridge as a necessary incident to assembling the constituent parts of a highway is implied. McMurry v. Kansas City, 283 Mo. 504. (g) The Amendment of 1928 authorized the Legislature to enact such laws as might be necessary to carry into effect the amendment, hence the Legislature had direct authority to direct the purchase of bridges as an incident to the construction of highways. Par. 16, Sec. 44a, Art. IV, Const. (h) Construct as used in the amendment includes purchase. Seymour v. City of Tacoma, 33 P. 1077, 6 Wash. 138; Ostrander v. City of Salmon, 117 P. 695; Dick v. Scarborough, 73 S.C. 150, 53 S.E. 86. (5) The authority given by Section 44a, Article IV of the Constitution to "otherwise improve" state highways in the congested traffic areas adjacent to St. Louis and Kansas City authorizes the purchase of the existing toll bridges located on such a highway. Sec. 44a, Art. IV, Const. of Mo.; Lynch v. Murphy, 119 Mo. 167; Thompson v. Highland Park, 58 N.E. 328, 187 Ill. 265. (6) The authority given by Section 44a, Article 4 of the Constitution to "otherwise improve," bridges in the congested traffic area adjacent to Kansas City and St. Louis authorizes the purchase of a toll bridge as an improvement. Cases cited under Point 5. (7) Section 44a of Article 4 of the Constitution authorizes the State Highway Commission in its discretion to determine the existing traffic area adjacent to the city of St. Louis and Kansas City and further authorizes said Commission to locate traffic relief roads within such area. State v. Pub. Service Com., 51 S.W.2d 75; State ex rel. Cape Girardeau v. Engleman, 106 Mo. 628; Simpson v. Kansas City, 111 Mo. 237; St. Louis v. Brown, 155 Mo. 555; 46 C. J. sec. 293, p. 1033. (8) Section 44a of Article 4 of the Constitution authorizing the State Highway Commission to complete, widen and "otherwise improve" the State system of primary highways authorizes the purchase of an existing toll bridge located on such highway as an incident to completing or otherwise improving it. "Complete" defined by Webster; Cases cited under Point 5. (9) The location and construction of 300 miles of additional highways provided for in Section 44a of Article 4 of the Constitution is left in the discretion of the Highway Commission, provided only that such location and construction results in connecting existing state highways or in expediting and facilitating the movement of through traffic. State v. State Highway Com., 42 S.W.2d 203; Par. 9, Sec. 44a, Art. IV, Constitution.

Stratton Shartel, Attorney-General, and Edward G. Robison, Assistant Attorney-General, for respondent.

Henwood, J. Ragland and Ellison, JJ., concur; White, J., concurs in result; Atwood, C. J., dissents in separate opinion; Frank and Gantt, JJ., dissent and concur in dissenting opinion by Atwood, C. J.

OPINION

HENWOOD

This is an original proceeding in mandamus wherein relator seeks to compel respondent to register certain state road bonds of the face value of $ 1,050,000, with the purpose of selling said bonds and of using the proceeds of the sale in purchasing three toll bridges across the Missouri River, one at Jefferson City, one between Independence and Liberty, and one at Hermann, for use as parts of certain state highways.

Respondent has filed his return to relator's petition, having waived the issuance of an alternative writ of mandamus, and relator has filed a motion for judgment on the pleadings.

It is admitted that the portion of U.S. Highway No. 63 extending from Rolla north and west to Jefferson City, thence across the Missouri River on a toll bridge, and thence north, through Columbia, to Moberly, has been designated as a higher type road; that a highway extending from Harrisonville north to Lees Summit, thence north, through or near Independence, to the Missouri River, thence across the Missouri River on a toll bridge, thence north to Liberty, and thence west to U.S. Highway No. 71, has been designated as Traffic Relief Road No. 35; that a toll bridge across the Missouri River at Hermann, which now connects the parts of State Highway No. 19 lying north and south of the Missouri River, has been designated as a part of 300 miles of new highways and bridges to be added to the state highway system, and as a part of Traffic Relief Road No. 100, which extends from Washington north and west to Herman, thence across the Missouri River, and thence north on State Highway No. 19 to U.S. Highway No. 40, near New Florence; that the State Highway Commission has made each of said designations, in good faith, with the purpose of purchasing said toll bridges for use as parts of said designated state highways; that the State Highway Commission has contracted for the purchase of the Jefferson City bridge for $ 150,000, for the purchase of the bridge between Independence and Liberty for $ 400,000, and for the purchase of the Herman bridge for $ 500,000, with the provision that the owners of said bridges shall accept in full payment therefor the proceeds derived from the sale of certain state road bonds of the face value of $ 150,000, $ 400,000 and $ 500,000, respectively; that certain state road bonds of the face value of $ 1,050,000 were duly issued for that purpose by the board of fund commissioners and presented in proper form to respondent for registration; and that respondent refused to register said bonds.

In defense of his refusal to register said bonds, respondent asserts that the State Highway Commission is without authority to include bridges across the Missouri River, a navigable stream, as parts of said designated state highways or to purchase said toll bridges across the Missouri River for use as parts of said designated state highways.

I. THE JEFFERSON CITY BRIDGE. -- The constitutional Amendment of 1920 (original Sec. 44a of Art. IV of the Constitution, Laws 1921, p. 707) authorized a bond issue of $ 60,000,000 "for the purpose of constructing hard surfaced public roads in each county of the State." In Sec. 29 of the Centennial Road Law (Laws 1921, 1st. Ex. Sess., pp. 145-164, now Sec. 8120, R. S. 1929) the Legislature designated the routes of a state-wide connected system of state highways, and the last paragraph of said section provides "that the highway commission is authorized and empowered to designate the routes and types of the higher type roads of approximately 1500 miles connecting the principal population centers of the State, and to make such changes in the routes of said roads as it may deem necessary in the interest of economy and directness of routes, and is authorized to commence the construction of said higher type roads at such place or places on such routes as it may deem advisable. . . ."

In 1923 the State Highway Commission designated the portion of U.S Highway No. 63 extending from Rolla north and west to Jefferson City, thence across the Missouri River on a toll bridge, and thence north, through Columbia, to Moberly, as one of such higher type roads, and has now completed the same, with the exception of a bridge across...