State v. Scott County Macadamized Road Co.

• Citation: 105 S.W. 752,207 Mo. 54
• Parties: STATE ex rel. HINES, Pros. Atty., v. SCOTT COUNTY MACADAMIZED ROAD CO.
• Decision Date: 06 November 1907
• Court: Missouri Supreme Court

105 S.W. 752

207 Mo. 54

STATE ex rel. HINES, Pros. Atty., v. SCOTT COUNTY MACADAMIZED ROAD CO.

Supreme Court of Missouri.

November 6, 1907.

1. COURTS — APPELLATE JURISDICTION — SUPREME COURT—CONSTITUTIONAL QUESTIONS.

Where a suit on relation of a county attorney was instituted against a toll road company to restrain it from further maintaining toll gates, etc., on its road, and from continuing to charge tolls, and defendant answered, alleging that the maintenance of the proceeding would be a denial to it of due process of law, and an impairment of the obligation of its contract with the state, and a taking of its property without just compensation, and that defendant had a fee simple in its road, or at least a right to an easement over it, constitutional questions were sufficiently raised, so that an appeal was properly taken to the Supreme Court, though complainant did not seek to recover defendant's toll houses, gates, or other personal property, but only to enforce rights of the public to travel over the highway without payment of toll.

2. SAME.

Where jurisdiction of an appeal by the Supreme Court is asserted on the ground that constitutional questions are involved, and such questions are so raised that they must be passed on in the determination of the appeal, though adversely, the court has jurisdiction, and will dispose of the appeal on its merits.

3. CORPORATIONS — TERMINATION OF FRANCHISE — REMEDIES—INJUNCTION.

Where a toll road company, after the expiration of its charter, transferred its rights, property, etc., to another corporation, which continued to charge toll for the use of the road, the prosecuting attorney of the county where the road lay was not confined to the remedy of quo warranto, but was expressly authorized, by Rev. St. 1899, § 9547 [Ann. St. 1906, p. 4369] and independent thereof, to bring suit for an injunction to restrain the assignee corporation from continuing to obstruct the road with toll gates and from collecting toll for the use of the road.

4. SAME — TERM — CHARTER — CONSTRUCTION — "PERPETUAL SUCCESSION."

Where the charter of a toll road corporation limited its corporate existence to 50 years, the further provision that it should have "perpetual succession" implied nothing more than a continuous succession during the term fixed by its charter, and did not create a corporation in perpetuity.

5. TURNPIKES AND TOLL ROADS—NATURE OF PROPERTY.

A turnpike is regarded in law as a public easement, and not as private property; every traveler being authorized to use it the same as any other highway on paying legal toll.

6. SAME—TERMINATION OF CHARTER—EFFECT.

Where no power was given to a toll road corporation to obtain a fee-simple title to land over which its road should be constructed, it being only authorized to obtain an easement or right of way for its proposed road, with the right to maintain toll gates, etc., and charge toll for the use of the road during the term of its corporate existence, on the expiration of that period, the right to use the road free of toll vested in the public.

7. CONSTITUTIONAL LAW — CONTRACT RIGHTS —DEPRIVATION OF PROPERTY.

Where a corporation was organized to maintain and operate a toll road, with a corporate existence of 50 years, the corporation having only an easement in the road, which was dedicated to the public subject to the payment

of tolls during the corporate existence of the company, its successor and grantee, after the expiration of such term, was not deprived of either property or contract rights by an injunction restraining it from further charging tolls for the use of the road.

In Banc. Appeal from Circuit Court, St. Francois County; Robt. A. Anthony, Judge.

Suit by the state, on the relation of T. D. Hines, prosecuting attorney of Cape Girardeau county, against the Scott County Macadamized Road Company. From a decree for complainant, defendant appeals. On rehearing in banc, affirmed on the opinion in department.

M. R. Smith, Giboney Houck, and R. G. Ranney, for appellant. T. D. Hines, Robert L. Wilson, and M. A. Dempsey, for respondent.

PER CURIAM.

Upon a rehearing of this cause by the court in banc, the subjoined opinion of GANTT, C. J., in division No. 2, is adopted; BURGESS, VALLIANT, FOX, LAMM, GRAVES, and WOODSON, JJ., concurring therein.

GANTT, J.

This is a proceeding ex officio by the prosecuting attorney of Cape Girardeau county to perpetually enjoin the defendant, its officers, agents, servants, successors, and assigns, from maintaining a public, continuing nuisance by obstructing a public highway in said county, known as the "Scott County Road" and sometimes as the "Rock Levee across the Big Swamp," from the city of Cape Girardeau to the bluffs in Scott county, by maintaining on and across said highway toll gates and exacting toll from the public who have occasion to use said highway. The petition alleges that said road is a public highway and has been such for more than 30 years; that the defendant is a corporation organized under the laws of this state, and without authority it maintains on and across said highway at various points bars and obstructions commonly called "toll gates"; and that it prevents the public from making free and proper use of such highway, and that such toll gates are a continuous public nuisance. By consent of parties, a change of venue was granted to St. Francois county.

The defendant then filed an amended answer to plaintiff's petition. This amended answer consists of a general denial and an affirmative defense that no portion of said road was ever a free public highway, and that the public never had any interest in said highway; that said toll gates and tolls collected are authorized by law; that the defendant is a corporation duly organized, and as such is authorized to own a turnpike road as above described, and that the portion of this road that passes across the Big Swamp was constructed in the years 1853 and 1855 by its grantor, the "Cape Girardeau & Scott County Macadamized Road Company"; that in the years 1872 and 1873 the said last-named company procured its right of way along the north side of said swamp by condemnation, donation, and purchase, and finished the construction of its road to the city of Cape Girardeau; that said road so constructed to the city of Cape Girardeau was maintained and kept in repair from the time of its construction up to the present time by defendant and its grantor; that the same has been used as a public thoroughfare, travelers thereon paying the tolls at all these times fixed and exacted; that the expenditures for maintaining said road have about equaled the receipts from tolls; that dividends to stockholders have been very small, not enough to reimburse them for the outlay for the construction of said road; that the said Cape Girardeau & Scott County Macadamized Road Company was created by act of the Legislature approved February 24, 1853; that by the provisions of said act said macadamized road company was granted the exclusive privilege of constructing a macadamized road across the Big Swamp, in the county of Cape Girardeau, with the privilege of extending the same to the city of Cape Girardeau, and that said company should have perpetual succession as such, and that at any time after the expiration of 20 years the counties of Cape Girardeau and Scott should have the right to purchase said road for the purpose of making the same a free road, but that, in the event that said sale should be made, the said counties of Cape Girardeau and Scott should pay to said company the actual cost of the construction of the same; that, relying upon said act, believing that the terms and provisions thereof would be upheld and carried out by the state, said company went to work, as soon as could be done after the passage of this act, to construct and build, and during the years 1853, 1854, and 1855 did build and construct, said road and complete the same across the Big Swamp, in accordance with the requirements of said act, and afterwards in the year 1873 did extend the said road to the city of Cape Girardeau; that said road was built by said company at great expense for labor and material, to wit, $30,000; that said company was at all times willing to sell said road to said counties in accordance with requirements of said act, but said counties wholly failed and refused to buy said road. And defendant further alleges that it acquired same from the said Cape Girardeau & Scott County Macadamized Road Company, by issuing to the stockholders of the said company $15,000 of the paid-up capital stock of this defendant for said road.

Defendant, further answering, says that the proceedings of plaintiff under this petition violate sections 4, 15, 21, 30, and 32, art. 2, of the Constitution of the state of Missouri, and section 9, par. 3, and section 10, art. 1, section 4, art. 4, and the fifth and fourteenth amendments of the Constitution of the United States, which provide that the private property, to wit, the property of this defendant, cannot be taken without due compensation and process of law; and defendant pleads said several sections and provisions of the Constitutions of the United States and the state of Missouri in bar to the pretended cause of action set up in the petition and proceedings of the plaintiff in this behalf instituted. The defendant, for further answer, says that it purchased the said road for the sum of $15,000 in its fully paid up capital stock, which was delivered to the last board of directors and trustees of the Cape Girardeau & Scott County Macadamized Road Company; and defendant avers that under the laws of the state of Missouri, after the expiration of the charter of the Cape Girardeau & Scott County Macadamized Road Company, the last board of directors and trustees of said company had good right to sell and convey the private property and assets belonging to said Cape Girardeau & Scott County Macadamized Road Company to...