The State ex rel. Davis v. State Highway Commission of Missouri

• Decision Date: 30 December 1925
• Docket Number: 26854
• Citation: 279 S.W. 689,312 Mo. 230
• Parties: THE STATE ex rel. E. W. DAVIS v. STATE HIGHWAY COMMISSION OF MISSOURI
• Court: Missouri Supreme Court

279 S.W. 689

312 Mo. 230

THE STATE ex rel. E. W. DAVIS v. STATE HIGHWAY COMMISSION OF MISSOURI

No. 26854

Supreme Court of Missouri

December 30, 1925

Peremptory writ denied.

Roy D. Williams for relator.

(1) No discretion is involved. (2) The court can compel the respondent to act. State ex rel. Campbell v. Cramer, 96 Mo. 75; State ex rel. Granville v. Gregory, 83 Mo. 123; State ex rel. v. Jones, 155 Mo. 570; State ex rel. v. West, 272 Mo. 304. (3) The court should compel the respondent to act. High on Extraordinary Legal Remedies, sec. 23; A. T. & S. F. Ry. Co. v Commissioners of Jefferson County, 12 Kan. 127; Riggs v. Johnson County, 6 Wall. 160, 18 L.Ed. 768; Board of Supervisors v. Judges of Wayne Circuit Court, 64 N.W. 44; 1 Joyce on Injunctions, sec. 411, p 622; Plank Road Co. v. Circuit Judge, 98 Mich. 141, 56 N.W 1109.

Robert W. Otto, Attorney-General, and L. Newton Wylder for State Highway Commission; E. R. Morrison and L. C. Lozier of counsel.

This respondent admits all the facts as set forth in the petition herein, and by its demurrer it admits the facts set forth in the answer to the respondent therein. The respondent is ready and willing to award contracts for the work covered by the projects described in the relator's petition. The respondents have exercised their discretion in the matter of passing upon the lowest responsible bidders, but they have not entered into, let or awarded contracts to the relator or to the Des Moines Steel Company for the sole and only reason that their hands are tied by the temporary restraining order of the Cole County Circuit Court. The respondent has pleaded the restraining order of the Cole County Court, and if this court is of the opinion that the peremptory writ should issue, respondent asks that its members, employees and agents be protected in event contempt proceedings be instituted against them. Such protection would seem to be proper in view of the cases cited in the brief for the relator herein.

E. P. Rosenberger, J. R. Baker and N. T. Cave, amici curiae:

A reading of the pleadings filed herein, together with consideration of the circumstances attending the filing of the same, in a final analysis show that this is a suit instigated, if not instituted, by the State Highway Commission against itself to compel it to do that which the Circuit Court of Cole County has restrained it from doing. This case is an attempt to nullify the order of a circuit court other than by appeal or writ of error, and without making the circuit judge a party to the proceeding. (1) This proceeding ought to be dismissed. The amicus curiae has filed a motion to dismiss alleging it is a collusive lawsuit between relator and the State Highway Commission; and, as we understand the rules of practice in this court, while the amicus curiae has no absolute right to file such a motion, the motion will be entertained by the court as a suggestion. This unquestionably is a collusive lawsuit. This court will not take cognizance of a proceeding where collusion is shown. Meeker v. Straat, 38 Mo.App. 239; State ex rel. v. Westport, 135 Mo. 120. (2) The peremptory writ of mandamus will not be granted in view of the outstanding injunction. State ex rel. Sparks v. Wilson, 49 Mo. 146; State ex rel. Phelan v. Engelmann, 86 Mo. 551; State ex rel. Rainwater v. Ross, 245 Mo. 336; High on Extraordinary Legal Remedies, sec. 23; Ohio & Indiana Railroad Co. v. Commrs. of Wyandot County, 7 Ohio St. 280; People ex rel. Mitchell v. Warfield, 20 Ill. 160; People ex rel. Sullivan v. Hake, 81 Ill. 540; State ex rel. Mills v. Kispert, 21 Wis. 392.

Roy D. Williams for relator in reply.

(1) The brief of amicus curiae urges that this is a collusive lawsuit and that it should be dismissed. The pleadings in the case show that the relator was the lowest responsible bidder upon the contracts described in the petition; that the bids made by the relator were in every way acceptable to the State Highway Commission, and that the law with respect to the letting of contracts for the construction of state highways has in every respect been complied with. The allegations of relator's petition are of necessity admitted by the respondent, because they correctly and accurately set out the facts as they exist. The respondent could not in good faith deny them. The respondent, however, further alleges that it has refrained from letting the contracts described in relator's petition for the reason that they have been restrained from doing so by a temporary restraining order issued by the Circuit Court of Cole County in a suit brought by East et al. against the State Highway Commission. (2) Relator's answer to respondent's return alleges that the East case is practically identical with a suit brought by Castilo, which is now pending in this court. It is admitted that the decision of this court in the Castilo case will be controlling in the East case. This court, therefore, has before it for decision the questions which will determine whether or not the restraining order issued by the Circuit Court of Cole County in the East case is proper. (3) It is obvious from the pleadings in this case that the relator has a right to have the contracts described in his petition awarded to him by the respondent. Relator is not a party to the suit in which the restraining order was issued. It is inconceivable that relator could properly be made a party to the East suit. His only remedy, therefore, is by mandamus to compel the Highway Commission to award to him the contracts upon which he submitted the lowest and best bid, and which he has a right to be awarded. He is thus brought directly within the principle of A. T. & S. F. Ry. Co. v. Commissioners, 12 Kan. 127. An examination of the cases cited by amici curiae reveals that the determining factor in any such case is whether or not the parties have real rights and interests to be determined. If there are real rights or conflicts of interests to be litigated, then the court will hear and determine the case even though the parties may have amicably agreed to bring the question before the court in a short and direct manner. 1 C. J. 974; Lord v. Veagie, 8 How. 251. (4) This is not a suit to dissolve an injunction. This suit is brought for the purpose of enforcing a right which relator has. The cases cited by amici curiae are cases in which attempts were made to control the issuance of an injunction by a mandamus proceeding directed against the court in which the injunction suit was pending. No such situation is present in this case. It is a case involving the highest public interest, and the fact that the public interest enters so largely into this case is sufficient to distinguish it upon its facts from the cases cited by amici curiae. The relator has a right which arises independently and entirely separately from the controversy which is being litigated in the injunction suit in the circuit court. 1 Joyce on Injunctions, sec. 411, p. 622. (5) Relator contends that the public interest involved in this case is sufficient to take it out of the general rules governing issuance of the writ of mandamus. The vital importance of the completion of that portion of the highway included in the contracts described in relator's petition, is well known. Even though this court should decide in the Castilo case that the circuit court correctly sustained defendant's demurrer to plaintiff's petition, and that no injunction should issue against the Highway Commission in the premises, nevertheless it would be entirely possible, and not at all improbable, that other persons in this State should appear before the various circuit courts and secure restraining orders, restraining the Highway Commission from proceeding with the construction of this highway. If such were the case, the construction of this highway might be delayed for an indefinite period of time. State ex rel. v. Dreyer, 229 Mo. 201.

Ragland, J. All concur, except Otto, J., not sitting; Atwood, J., in result only.

OPINION

RAGLAND

This is an original proceeding in mandamus. It is alleged in the alternative writ that the relator is a resident, citizen and taxpayer of the State of Missouri; that respondent, State Highway Commission, "has advertised for and received bids in accordance with law for the construction of certain parts of Highway No. 2 in Boone and Callaway Counties, Missouri, being known and designated as Route 2, Section 44; Route 2, Section 45; Route 2, Section 46; Route 2, Section 48; Route 2, Section 51, all in Callaway County, Missouri, and Project 229-C, Boone County, Missouri Project 229-D, Boone County, Missouri, and Route 2, Section 43, Boone County, Missouri, and Route 2, Section 50, Callaway County, Missouri; and notwithstanding the fact that bids have been received in accordance with law and the State Highway Commission has found who the lowest responsible bidders are, and notwithstanding the fact that said proposals for the work on said sections are very advantageous to the State of Missouri and the citizens thereof, and notwithstanding the immediate necessity of awarding said contracts and beginning the necessary grading and bridging of said road, the respondent without just cause or reason arbitrarily refuses to award said contracts to E. W. Davis, of Boonville, Missouri (relator), and the Des Moines Steel Company, a corporation of Des Moines, Iowa, the lowest responsible bidders for said work." Following these allegations respondent is commanded to "award, let and enter into said contracts" to relator and Des Moines Steel Company in accordance with their several bids, or show cause, etc.

For return to the writ respondent averred: "that it is ready and willing to award said contract to the bidders named in said petition and each and all...