State ex rel. State Highway Com'n v. Curtis
| Decision Date | 11 July 1949 |
| Docket Number | 41337 |
| Citation | 222 S.W.2d 64,359 Mo. 402 |
| Parties | State of Missouri ex rel. State Highway Commission of Missouri, Relator, v. Honorable Claude E. Curtis, Judge of the 19th Judicial Circuit of Missouri and of the Circuit Court of Pulaski County, Respondent |
| Court | Missouri Supreme Court |
Reported at 359 Mo. 402 at 411.
Original Opinion of June 13, 1949, Reported at 359 Mo. 402.
On Motion For Rehearing.
Respondent's motion, designated as a motion for rehearing, is, in reality a motion to modify the opinion in one respect only. The motion does not attack any of the conclusions of law which we have reached in the opinion, but asks us to modify our writ of mandamus so as to eliminate the provision directing him to appoint commissioners. He argues that this provision may possibly preclude the objecting landowners from raising the question that some part of the land is not being sought for a public use.
We hold that it is unnecessary to modify our writ. Certainly respondent and the objecting landowners must concede that some of the land is being properly sought for a public use and commissioners must be appointed to ascertain and assess the damages.
Relator has filed suggestions in opposition to respondent's motion, but also asks us to modify our opinion "so there can be no contention by anyone that it authorizes a judicial review of the State Highway Commission's legislative acts in determining just what land is necessary for the proper and economical construction of a state highway, that is, of course, in the absence of any allegation and proof of fraud or bad faith."
That is exactly what the opinion holds except that we go a step farther and hold that the decision of the Commission [or any other administrative agency] may be judicially questioned not only for fraud or bad faith, but for an arbitrary and unwarranted abuse of discretion.
In this case the Commission is condemning land for the construction of an extension to a state highway. That, of course, is a taking for a public use. The necessity for such taking and the extent of land to be taken rests in the sound discretion of the Commission and is not a judicial question.
"The amount of land required for street purposes is a matter of discretion to be determined by the legislative authority . . . and such discretion, at least if not abused or arbitrarily exercised, is not subject to judicial review." [City of St. Louis v....
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