State Ex Rel. State Highway Comm. v. Curtis , 359 Mo. 402 ( 1949 )

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.

[7] 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. Senter Com. Co., 336 Mo. 1209, l.c. 1227, 84 S.W.2d 133.]

In exercising its discretion the Commission is not limited to the taking of only so much land as is actually necessary for the construction of the road, but may be governed by the purposes stated in its bill of particulars and which are set forth in our opinion.

In this case all the land sought to be taken is presumptively necessary for the public uses mentioned in relator's petition and bill of particulars. If the Commission is arbitrarily abusing its discretion by attempting to take land which can never, under any contingency, be used for any of such public purposes, the burden is upon the objecting landowners to allege and prove such abuse. So far their objections have not effectively raised that issue.