Opinion
October 19, 1936.
STATE HIGHWAY COMMISSION: Discretion: Executive Departments. Under Section 44a, Article IV of the Constitution, the State Highway Commission has absolute discretion with reference to the construction of both intrastate and interstate bridges and has sole jurisdiction to determine whether or not a city in Kansas and the State of Kansas can perform their part of an undertaking to build an interstate bridge across the Missouri River.
The courts cannot interfere with the ordinary functions of the executive departments of the State government.
PROVISIONAL RULE MADE ABSOLUTE.
Ragland, Otto Potter, Kranitz Duncan, Louis V. Stigall and Wilkie B. Cunnyngham for relators.
(1) The injunction petition did not state a case belonging to a class in which courts of equity are authorized to grant injunctive relief. State ex rel. Kenamore v. Wood, 155 Mo. 425, 56 S.W. 474; State ex rel. Hyde v. Westhues, 316 Mo. 457, 290 S.W. 443; State ex rel. Cen. States Life Ins. Co. v. McElhinney, 90 S.W.2d 124; State ex rel. Bowling Green Trust Co. v. Barnett, 245 Mo. 99, 149 S.W. 311; State ex rel. Pettibone v. Mulloy, 330 Mo. 1084, 52 S.W.2d 402; State ex rel. Page v. Terte, 25 S.W.2d 459. (a) The judicial power of the Circuit Court of Cole County can be set in motion in civil matters only by proper persons filing proper pleadings in the court. A court cannot act sua sponte or ex mero motu. 15 C.J. 797, sec. 93; Holton v. Holton, 64 Or. 290, 129 P. 532; Ray v. Phelps, 83 Vt. 174, 75 A. 13; State ex rel. McManus v. Muench, 217 Mo. 124, 117 S.W. 25; State ex rel. Kopke v. Mulloy, 329 Mo. 1, 43 S.W.2d 806; Rees v. Andrews, 169 Mo. 177, 69 S.W. 4; Delaware, L. W. Railroad Co. v. Central Stockyard Transit Co., 43 N.J. Eq. 77, 10 A. 814; Shoemaker v. Board of Commrs., 36 Ind. 175; Gusman v. Marrero, 180 U.S. 81, 21 Sup. Ct. 293, 45 L.Ed. 463. (b) To give the respondent jurisdiction so he could issue an injunction, the plaintiffs must allege facts showing they have some interest in obtaining the injunction personal and special to them and different from the interest of all the public generally. This they did not do here. State ex rel. Chase v. Hall, 297 Mo. 594, 250 S.W. 64; Stocke v. Edwards, 295 Mo. 402, 244 S.W. 802; Newmeyer v. Railroad Co., 52 Mo. 81; Mo. Const., Art. IV, Sec. 44a. (2) Respondent exceeded his jurisdiction in attempting to enjoin the relators ex parte and without notice in the absence of any "crying need" for the dispensing with notice. Milwaukee Horse Cow Comm. Co. v. Hill, 207 Wis. 353, 241 N.W. 364; State ex rel. Castlan v. Mulloy, 331 Mo. 776, 55 S.W. 294; State ex rel. Caron v. Dearing, 291 Mo. 169, 236 S.W. 629; State ex rel. K.C. Exchange Co. v. Harris, 81 S.W.2d 632; State ex rel. Wurdiman v. Reynolds, 275 Mo. 113, 204 S.W. 1093; State ex rel. Kopke v. Mulloy, 329 Mo. 1, 43 S.W.2d 806; Rees v. Andrews, 169 Mo. 177, 69 S.W. 4; State ex rel. Am. Lead Baryta Co. v. Dearing, 184 Mo. 647.
James T. Blair, Jr., and T.S. Mosby for respondent.
(1) The writ of prohibition is purely in restraint of actions yet to be done. It is not adapted to correct wrongs already done. And the petition for the writ itself must allege every fact necessary to its issuance. State ex rel. v. Huck, 296 Mo. 381; State ex rel. v. Ryan, 180 Mo. 32. (2) The sufficiency of the petition below to state a cause of action, whether as to the grounds of relief stated, the interest or capacity of the parties to sue, or the sufficiency of the parties defendant, was for the court below; and its decision, whether right or wrong cannot be challenged in this proceeding. State ex rel. v. Shot, 304 Mo. 533; State ex rel. v. Hall, 297 Mo. 600; State ex rel. v. Huck, 296 Mo. 386; State ex rel. v. McQuillin, 262 Mo. 269; State ex rel. v. Haugh, 193 Mo. 652; State ex rel. v. Stobie, 194 Mo. 48; State ex rel. v. Hallkamp, 330 Mo. 608; State ex rel. v. McQuillin, 256 Mo. 704; State ex rel. v. McElhinney, 199 Mo. 82; State ex rel. v. McQuillin, 260 Mo. 177; State ex rel. v. Shelton, 238 Mo. 294; State ex rel. v. Seehorn, 246 Mo. 583; State ex rel. v. Weymeyer, 324 Mo. 393; State ex rel. v. State Highway Comm., 312 Mo. 244; State ex rel. v. Edwards, 295 Mo. 201; State ex rel. v. Woodside, 255 Mo. 580; Hawkins v. St. Joseph, 281 S.W. 421; State ex rel. v. State Highway Comm., 312 Mo. 262; Hight v. Harrisonville, 328 Mo. 549; Meyer v. Kansas City, 323 Mo. 200; State ex rel. Russell v. Highway Comm., 328 Mo. 942. (3) It is for the lower court to determine the jurisdiction, even when outside facts determine jurisdiction. Unless the determination is arbitrary, non-judicial, it is conclusive except on appeal. State ex rel. v. Brown, 335 Mo. 1058; State ex rel. v. Montgomery, 316 Mo. 664; State ex rel. v. Shain, 297 Mo. 379; State ex rel. v. Edwards, 295 Mo. 312; State ex rel. v. Lamb, 237 Mo. 457; State ex rel. v. Woodside, 255 Mo. 593; State ex rel. v. McQuillin, 262 Mo. 270; State ex rel. v. McQuillin, 260 Mo. 679, 231 Mo. 500; State ex rel. v. Shelton, 238 Mo. 281; State ex rel. v. Tracy, 237 Mo. 120; State ex rel. v. Riley, 203 Mo. 192; State ex rel. v. Stobie, 194 Mo. 49.
Relators challenge the jurisdiction of respondent judge to issue a temporary injunction in a suit pending in the Circuit Court of Cole County. Preliminary rule in prohibition issued, respondent made return, and relators move for judgment.
The suit is an effort to prevent the construction of a free bridge across the Missouri River. The Atchison Eastern Bridge Company, Tolbert Henson and James T. Blair, Jr., are the plaintiffs in the case. The bridge company owns a nearby bridge across said river and for that reason is interested. Henson and Blair sue as taxpayers.
In substance the alleged material facts follow: The Missouri Highway Commission, Kansas State Highway Department and Atchison, Kansas, entered into a joint undertaking to construct the bridge with the aid of the Federal government, and to construct certain highways in both states leading to the bridge, which highways the Federal government required as part of the Federal project. Plaintiffs in the injunction suit conclude from certain alleged facts that the city of Atchison and State of Kansas cannot or may not perform their parts of the undertaking. From this they also conclude that construction by the Missouri Highway Commission of its part of the undertaking would be a waste of public funds. There is no allegation of bad faith, collusion and fraud. Furthermore, there is no allegation that, under the circumstances, it would be a violation of either the statute or Constitution for the commission to construct its part of the bridge at this time.
In due course the Missouri Highway Commission proceeded to perform its part of the undertaking. It accepted the bid of the Bushman Construction Company, defendant in the injunction suit, to construct bridge piers and a highway leading to the bridge, all on the Missouri side of the river. Thereupon respondent judge issued a temporary injunction restraining the commission and company from entering into a contract for said construction.
Plaintiffs in the injunction suit seek the judgment of the circuit court on the question of waste of public funds. Relators herein contend that the question of whether or not the city of Atchison and State of Kansas cannot or may not perform their parts of the construction of the bridge and highways is solely for the determination of the Highway Commission.
It is provided in the Constitution that the money in the State Road Fund shall be "administered and expended under the direction and supervision" of the commission for certain highway purposes, including participation in the construction of free interstate bridges, "and for such other purposes and contingencies relating and appertaining to the construction and maintenance of such highways and bridges as the State Highway Commission may deem proper." [Sec. 44a, Art. IV, Const.]
Thus it appears that the commission has absolute discretion with reference to the construction of both intrastate and interstate bridges. In other words, it has sole jurisdiction to determine the question of whether or not the city of Atchison and the State of Kansas cannot or may not perform their parts of the undertaking. Determination of the question by the commission is final. The courts cannot interfere with the ordinary functions of the executive department of the State government. [Selecman v. Matthews, 321 Mo. 1047, 15 S.W.2d 788, l.c. 790.]
It follows that the injunction suit is without equity. [State ex rel. Kenamore v. Wood, 155 Mo. 425, 56 S.W. 474; State ex rel. Hyde v. Westhues, 316 Mo. 457, l.c. 469, 290 S.W. 443; State ex rel. Hog Haven Farms v. Pearcy, 328 Mo. 560, l.c. 564, 41 S.W.2d 403.] The provisional rule should be made absolute. It is so ordered. All concur.