Opinion
Nos. 40857 and 40946.
January 7, 1949.
1. APPEAL AND ERROR: Premature Appeal Dismissed. An appeal from an interlocutory order is premature and is dismissed.
2. HIGHWAYS: Courts: Constitutional Law: Private Road: 1875 Constitution: County Court Acting in Judicial Capacity. The county court was a court of record under the 1875 Constitution and acted in its judicial capacity when it entered a judgment establishing a private road.
3. HIGHWAYS: Courts: Constitutional Law: Private Road: 1945 Constitution: Termination of Jurisdiction of County Court. Under the 1945 Constitution county courts do not have judicial power. Their jurisdiction to establish a private road under Secs. 8488-8501 R.S. 1939 ended on July 1, 1946.
4. HIGHWAYS: Courts: Private Road: No Jurisdiction of Either County Court or Circuit Court. Neither the county court nor the circuit court had any jurisdiction over this proceeding to establish a private road as there were no statutes in force providing the manner of taking private ways of necessity as required by the 1945 Constitution.
5. HIGHWAYS: Courts: Statutes: Private Road: No Common Law Jurisdiction of Circuit Court: Subsequent Statute Not Retroactive. The circuit court did not have any common law jurisdiction to establish a private road and Laws Missouri 1947, Vol. II, p. 344, reenacting Secs. 8488-8501 R.S. 1939 and giving circuit courts jurisdiction, did not have retroactive effect.
6. HIGHWAYS: Grade Crossing Statute Not Applicable. Sec. 5627 R.S. 1939, authorizing the Public Service Commission to govern the establishment of grade crossings of public roads over railroad tracks, does not apply.
Appeal from Cole Circuit Court. — Hon. Sam C. Blair, Judge.
APPEAL IN CAUSE NO. 40857 DISMISSED AND IN CAUSE NO. 40946 REVERSED.
Thomas J. Cole, Ragland, Otto. Potter Embry and Forrest P. Carson for appellant.
(1) The county court has no jurisdiction over proceedings for the establishment of a private road. This cause was initiated under the provisions of Section 8488, Mo. R.S.A., for the establishment of a private way of necessity from the land of respondents to the public road. That statute was applicable under the 1875 Constitution of Missouri, which made the county court a court of record and gave it certain judicial functions. Art. VI. Secs. 1, 36, Constitution of 1875. (2) Under the above provisions of the 1875 Constitution the county courts were held to be courts of limited jurisdiction only. Missouri Elec. Power Co. v. City of Mountain Grove, 352 Mo. 262, 176 S.W.2d 612; Morris v. Karr, 114 S.W.2d 962; State ex rel. Moser v. Montgomery, 238 Mo. App. 1228, 186 S.W.2d 553. (3) The 1945 Constitution of Missouri, however, changed the county court from a court of limited jurisdiction to an administrative body for the conduct of county business. Art. V, Sec. 1, Constitution of 1945; Art. VI, Sec. 7, Constitution of 1945; Journal of Proceedings of Constitutional Convention for March 7, 1944, p. 7; State ex rel. Kowats v. Arnold, 204 S.W.2d 254; Bradford v. Phelps County, 210 S.W.2d 996. (4) The determination of the issues involved in this cause is not an administrative act, but a judicial proceeding. State ex rel. Board of Education v. Nast. 209 Mo. 708, 108 S.W. 563; Gentry v. Fry, 4 Mo. 120. (5) The characterization of such a cause as a judicial proceeding is the more apparent by the inclusion in the statutes of a provision for a jury trial of the issue of damages if the person whose property is taken is not satisfied with the award of the commissioners. Sec. 8494, R.S.A., as re-enacted by Senate Bill 212 of the 64th General Assembly. (6) Furthermore, by the adoption of the emergency clause contained in Senate Bill 212, the Legislature recognized the lack of jurisdiction of the county court. (7) The county court has no jurisdiction to order a crossing of appellant's railroad track at grade. Under the 1945 Constitution of Missouri the county court is the business agency of the county. Its former authority of a judicial character was eliminated by the provisions of our present Constitution. Art. VI. Sec. 7, Constitution of 1945. (8) Even under its status under the 1875 Constitution the county court had no authority to order a grade crossing of a railroad track, since it was uniformly held to be a court of limited jurisdiction, having only such powers as were given to it by statute. See cases cited under Point (2). (9) The jurisdiction of the circuit court on appeal, being derivative, must stand or fall on the jurisdiction of the county court. Platte County v. Locke, 294 Mo. 207, 242 S.W. 666; Morris v. Karr, 114 S.W.2d 962. (10) Since 1913 the Public Service Commission of Missouri has had exclusive jurisdiction over the establishment of grade crossings of railroad tracks in this State. Sec. 5627, Mo. R.S.A.; Liddle v. Thompson, 236 Mo. App. 1071, 162 S.W.2d 614; City of St. Louis v. St. Louis-S.F. Ry. Co., 330 Mo. 499, 50 S.W.2d 637; American Pet. Exchange v. Public Serv. Comm., 238 Mo. App. 92, 172 S.W.2d 952. (11) The road which respondents seek, although denominated a "private" road, is, under the law, a public road, since it is free to be traveled by all persons as a public road. Sec. 8497, Mo. R.S.A., as re-enacted by Senate Bill 212 of the 64th General Assembly; State v. Van Patton, 230 Mo. App. 1199, 94 S.W.2d 1119; Belk v. Hamilton, 130 Mo. 292, 299, 32 S.W. 656; Richter v. Rodgers, 327 Mo. 54, 37 S.W.2d 523; Kansas City v. Mo. Pac. R. Co., 229 S.W. 771.
Lauf Bond for respondents.
(1) The power given to county courts to establish private ways of necessity are the exercise of administrative power rather than judicial power. In its technical sense judicial power implies the construction of laws and the adjudication of legal rights. 50 C.J.S. 569. (2) The acts of the county court in hearing a cause for a way of necessity under the statutes are ministerial only. 50 C.J.S. 561. (3) The so-called "jury" passes on no question other than that of damages and thus are far different from a real jury which passes on various questions of fact, and who applies the law. It would be just as accurate to call this county court jury a "board of appraisers" since they merely assess damages. Sec. 8494, R.S. 1939. (4) The ways of necessity established under Sections 8488-8495, R.S. 1939, when established are not public roads within the meaning 5627, R.S. 1939, requiring the Public Service Commission to order in grade crossings on public roads. The legislature in passing the statutes providing for a way of necessity repeatedly referred to such ways once established as private roads. Secs. 8488, 8489, R.S. 1939. (5) The courts have referred to these ways of necessity established by the county court, as private roads. Allen v. Welch, 102 S.W. 665; State ex rel. McDermott Realty Co. v. McElhinney, 151 S.W. 457; 50 C.J., Private Roads, p. 379. (6) Public Service Commission jurisdiction over grade crossings is limited to crossings of public roads and does not include crossings of private roads. Sec. 5627, R.S. 1939. (7) Since appellant has had the benefit of a trial de novo before the Circuit Court of Cole County he has had all that he may demand under Senate Bill 212 of 64th General Assembly. State ex rel. McDermott Realty Co. v. McElhinney, 151 S.W. 457; Senate Bill 212; Sec. 2490 R.S. 1939. (8) The first appeal taken by appellant, Case Number 40,857, must be dismissed by the court for the reason that at the time the appeal was taken there was no final judgment or order and the purported appeal was premature. The second appeal taken in Case Number 40,946 in this court covers the entire case. Civil Code of Procedure, Laws 1943, sec. 126, p. 390.
This proceeding under the statutes to establish a private road was instituted in the County Court of Cole County after the Constitution of 1945 had removed judicial power from county courts, and had rendered ineffective statutes inconsistent with the new Constitution.
In this situation, the jurisdiction of the county court over this proceeding under the new Constitution is the decisive question for determination by this court.
The case is here because this court has exclusive appellate jurisdiction in all cases involving the construction of the Constitution. Cons. (1945) Art. v, Sec. 3.
Briefly the facts are these. Plaintiffs petitioned the county court to establish a private road from their premises to a public road in accordance with the statutory procedure. Their premises adjoined the Missouri Pacific Railroad right-of-way on the west. A public road adjoined the right-of-way on the east. Plaintiffs sought the establishment of a private road across the railroad right-of-way from their premises to the public road.
Plaintiffs filed their petition in the county court pursuant to the procedure provided in Section 8488 R.S. 1939, RSA, for the establishment of private roads. The county court appointed commissioners, the commissioners viewed the premises and marked out a private road twenty feet wide and sixty-six feet long (the width of the right-of-way) across the railroad right-of-way. The county court entered judgment establishing such private road. Defendant appealed to the circuit court. The circuit court, after a hearing to determine whether plaintiffs were entitled to a way of necessity, entered an interlocutory order in their favor. Cause No. 40,857 in this court is an appeal from that order. That appeal was premature and should be dismissed.
[507] The circuit court after proceeding anew entered final judgment establishing the same private road across defendant's right-of-way. Defendant has appealed from this judgment.
Our conclusion is the judgment should be reversed for want of jurisdiction. The statutes governing the taking of private property for a private road against the consent of the owner were not effective during the entire course of this proceeding because they were inconsistent with the new Constitution (1945). Taking of private property for private use is permitted by the Constitution (1945) only when it is done in strict conformity with statutory authority.
The old Constitution (1875) was the first constitutional authority in this state for the taking of private property for private ways of necessity against the consent of the owner. Article II, Section 20 of the Bill of Rights of that Constitution provided in part: "That no private property can be taken for private use, with or without compensation, unless by the consent of the owner, except for private ways of necessity, and except for drains and ditches across the lands of others for agricultural and sanitary purposes, in such manner as may be prescribed by law; . . ."
The procedure for taking private property for private ways of necessity authorized by this provision and for governing private roads was set up by the legislature in Sections 8488-8501. Such procedure was followed in this case. These statutes provide that an inhabitant may present his petition in the county court for a private road from his premises to a public road. The court shall then appoint commissioners who are to mark out the road. The commissioners report to the county court, and it makes its findings and enters its judgment. Where an issue is raised as to the amount of damages to be allowed for taking the road the statute provides for its determination by a jury. The county court is also authorized to issue its warrant to its officer to enforce its judgment to open the road.
An appeal to the circuit court from a judgment of a county court establishing a private road has been held to be authorized under Section 2100 R.S. 1939, RSA, which gives the circuit court general appellate jurisdiction of appeals from county courts. State ex r. United Rys. Co. v. Wiethaupt, 238 Mo. 155, 142 S.W. 323; State ex r. McDermott Realty Co. v. McElhinney, 246 Mo. 44, 151 S.W. 457.
The authority to establish a private road comprehends judicial, not ministerial, action by a county court. Under the old Constitution (1875) a county court was a court of record. In acting on matters within its discretion, a county court is held to exercise judicial functions. Dumm v. Cole County, 315 Mo. 568, 287 S.W. 444. An appeal from a county court was not allowed where the order appealed from was entered by the court in its administrative capacity. Scott County v. Leftwich, 145 Mo. 26, 46 S.W. 963; Colville v. Judy, 73 Mo. 651. An appeal from a county court is held to be authorized only when the judgment appealed from was entered by the court acting in its judicial function. Bradford v. Phelps County (Mo. App.) 210 S.W.2d 996; St. L., I.M. S.R. Co. v. St. Louis, 92 Mo. 160, 4 S.W. 664; State ex r. Dietrich v. Daues, 315 Mo. 701, 287 S.W. 430. And we have pointed out above a judgment of a county court establishing private roads is appealable.
Accordingly, there can be no question but that a county court is acting in its judicial capacity when it enters a judgment establishing a private road. Article VI, Section 1 of the old Constitution (1875) vested judicial power in the county courts. Also Section 36 of that Article provided in part: "In each county there shall be a county court, which shall be a court of record, and shall have jurisdiction to transact all county and such other business as may be prescribed by law. . . ."
But this has now been changed. Under the new Constitution (1945) judicial power is no longer vested in county courts. Article V. Section 1, omits county courts in enumerating the courts in which the judicial power of the state is now vested. Article VI of the new Constitution (1945) which concerns local governments, not courts, provides in part in Section 7 that [508] the county court "shall manage all county business as prescribed by law." Although that section provides that a county court shall "keep an accurate record of its proceedings", it did not carry over the old provision that a county court shall be "a court of record."
Thus, it is clear under the new Constitution (1945) county courts are no longer vested with judicial power, are not now "courts of record" and are not what we generally know as courts of law. "County courts are no longer courts in a juridical sense, but are ministerial bodies managing the county's business." State ex r. Kowats v. Arnold, 356 Mo. 661, 204 S.W.2d 254; Bradford v. Phelps County (Mo. Sup.) 210 S.W.2d 996, supra.
This case was filed after the new Constitution (1945) became effective on March 30, 1945. Section 2 of its schedule provides: "All laws inconsistent with this Constitution, unless sooner repealed or amended to conform with this Constitution, shall remain in full force and effect until July 1, 1946."
Since county courts are no longer vested with judicial power, their right to exercise such power in establishing a private road under Sections 8488-8501 ended on July 1, 1946 as those sections were inconsistent with the new Constitution (1945). Thereafter, county courts had no jurisdiction to entertain a proceeding or by their judgment to establish a private road.
This proceeding was filed in the county court on July 31, 1947. That court entered its judgment on August 7, 1947. This all occurred more than a year after July 1, 1946 when all laws inconsistent with the Constitution, including Sections 8488-8501, lost their force. An appeal to the circuit court was taken on August 7, 1947. There this case was tried anew, and final judgment was entered on March 6, 1948. From the time this case was filed in the county court up to final judgment on appeal in the circuit court there were no statutes in force providing the manner for taking private ways of necessity as required by the Constitution. The new Constitution (1945) in Article I, Section 28 reenacted the same provisions of the old Constitution (1875) found in Article II, Section 20. Under the new, as under the old, a private way of necessity can only be taken in the manner prescribed by law.
It may not be said the circuit court, in the absence of any effective statutory procedure, has common law jurisdiction to establish such a private way against the consent of the owner. The taking of private property for a private way of necessity was held to be a proceeding "against common law and common right." Cox v. Tipton, 18 Mo. App. 450; Welch v. Shipman, 357 Mo. 838, 210 S.W.2d 1008. So the circuit court on a trial anew had no jurisdiction, either under the statutes or common law, to enter the judgment at the time it did so The fact the circuit court was sometime thereafter vested by the legislature with jurisdiction to do so can not make its judgment rendered theretofore valid. The later act has no retroactive effect.
The legislature reenacting Sections 8488-8501 gave the circuit courts jurisdiction to establish private roads in place of county courts. 1947 Laws, 344. But the reenactment, although carrying an emergency clause, did not become effective until May 5, 1948.
Section 5627 R.S. 1939, RSA, authorizing the Public Service Commission to govern the establishment of grade crossings of public roads over railroad tracks is not applicable here.
Under the circumstances the circuit court proceeded in this case without the statutory authority required by the Constitution, and its judgment must be reversed.
Accordingly, we order in Cause No. 40,857 the appeal be dismissed, and in Cause No. 40,946 the judgment be reversed. All concur.