State Ex Rel. Davis v. State Highway Commission

*236 RAGLAND, J. 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 bid, *237 ders named in said petition and each and all thereof; and respondent further states that said bidders have each of them conformed with all requirements of law, and are the lowest responsible bidders oh said contracts and each of them; respondent further says that it has heretofore found and determined that it is to the best interests of the State of Missouri and of the State Highway Commission of Missouri that said contracts be awarded and let to the contractors named in the petition herein; and respondent states that the sole and only ground for its failure to award, let and enter into the said contracts with the said contractors named in said petition for the said projects described therein, is that a certain temporary restraining order was heretofore and on or about-day of August, 1925, issued by ‘the judge of the Circuit Court of Cole County, State of Missouri, in a certain cause entitled W. J. East et al., plaintiffs, vs. State Highway Commission of Missouri, defendant, in and by which temporary restraining order this respondent was restrained and prohibited from entering into any contracts or obligations for the construction, reconstruction or improvement of that portion of State Highway Number 2 described in the petition herein, and that said restraining order is still in effect, notwithstanding the fact that this respondent did heretofore and on or about the 22nd day of September, 1925, present to the judge of said court its motion for a dissolution thereof.” For reply to the return relator admitted the issuance of the temporary restraining order therein referred to, in the case of East et al. vs. State Highway Commission, but averred that the matters and things at issue in that action had theret.ofore been fully adjudicated, and determined adversely to the contentions of plaintiffs therein, in a prior action to which they were parties by representation, that of Castilo et al. v. State Highway Commission; “that to permit successive suits by taxpayers for adjudication thereof, in respect to public projects and public improvements, would intolerably harass, delay *238 and prevent the carrying ont of such projects and improvements, and this court should by its writ of mandamus direct and compel the State Highway Commission to proceed with the awarding, letting and entering into of said contracts notwithstanding said injunction, and should if necessary by writs of prohibition, habeas corpus or otherwise, as occasion might require, protect the members of the State Highway Commission, their employees and agents against said restraining order so issued by the Honorable Judge of the Circuit Court of Cole County.” Respondent demurred generally to relator’s reply. The demurrer may be treated as a motion for judgment on the pleadings. The pertinent facts as disclosed by the pleadings and the exhibits filed in connection therewith are as follows: Suit was brought to the March term, 1923, of the Cole County Circuit Court by Mitchell Castilo et al., as plaintiffs, against State Highway Commission, as defendant. The plaintiffs averred that they were resident citizens and assessed taxpayers of the counties of St. Charles and Warren and of the State of Missouri and that they brought and prosecuted the action for and on behalf of themselves and for and on behalf of all other resident citizens and assessed taxpayers of the State of Missouri similarly situated and interested. It was alleged in their petition, in substance, that the. road popularly known as the Boonslick Road, extending eastwardly from Glasgow in Howard County, across the counties of Howard, Boone, Callaway, Montgomery, Warren and St. Charles, to the city of St. Charles, was by the Act of 1921 creating a State Highway Commission, made a constituent part of the state highway system described therein and created thereby; that pursuant to authority conferred by said act the State Highway Commission designated the route of the Boonslick Road as a part of the route of the higher-type road to be constructed between St. Louis and Kansas City; and that after so selecting said route for the construction of a *239 higher-type road, the Commission had announced its purpose to so change it that it would he north of its then location and at distances therefrom varying from one to ten miles. It was sought by the action to perpetually enjoin the Commission from making such, or any, change in said route. The cause was heard and disposed of in the circuit court on a general demurrer to the petition. From the judgment dismissing their bill plaintiffs were allowed an appeal to this court. No restraining order was asked or granted either while the cause was pending in the circuit court or at the time of the taking of the appeal. After plaintiffs’ bill in the Castilo case had been dismissed by the circuit court and during the pendency of the appeal, the Highway Commission proceeded with the construction of a higher-type road along the route as changed in conformity with its previously announced purpose. It prosecuted the work from both east and west and made such progress that in August of this year there only remained a short gap — across Boone and Callaway counties — to be closed up in order for the entire construction to be completed. At that stage of the construction East and others, citizens and taxpayers of Callaway-County, being apprehensive no doubt that the road would be completed across Callaway County on the changed route before the Castilo case could be heard in this court, brought a second injunction suit against the Commission in the Cole Circuit Court .and procured a temporary restraining order. The bill in the East case recited, among other things: “That said cause (the Castilo case) is now pending in the Supreme Court of Missouri and will be heard in said court on or about October 12, 1925, and that the issues and matters in dispute in said cause as may be determined by the Supreme Court will very largely adjudicate and determine whether the defendant, the State Highway Commission, is acting within its right and authority in the establishment and lccation of the higher-type road as above described along a route other thán that designated by the Legisla *240 ture as above mentioned; and these plaintiffs state and allege that the defendant, the State Highway Commission, knowing that said issues would soon be determined, adjudicated and settled by decision of the Supreme Court of the State of Missouri, has purposely, and in an effort to avoid the binding force and effect of said decision is undertaking to enter into contracts with divers persons for the construction of the above described higher-type road prior to the rendition of said judgment by the Supreme Court, and in that manner possibly avoid and nullify the force and effect of such decision and determination of said Supreme Court.” After the granting of the restraining order in the East case relator instituted the present proceeding in this court. The mandamus and the appeal in the Castilo case were heard and submitted at the same time. Respondent through the brief of its counsel discloses its attitude in this proceeding in this wise: “The respondent is ready and willing to award contrae, s for the work covered by the projects described in the relator’s petition. The respondent has exercised its discretion in the matter of passing upon the lowest responsible bidders, but it has not entered into, let or awarded contracts to the relator or to the Des Moines Steel Company for the sole and only reason that its hands are tied by the temporary restraining order of the Cole County Cifcuit Court. “The respondent has pleaded the restraining order, . . . and if this court is of the opinion that the peremptory writ should issue, respondent asks that its members, its employees and agents be protected in event contempt proceedings be instituted against them.” It thus appears that while relator and respondent are adversary on the record they are in exceedingly close concord as to one objective, and that is, the striking down of the restraining order of the Cole County Circuit Co.irt. *241 *240 Relator sues apparently in a double capacity: As a citizen and taxpayer he would have respondent brought under compulsion touching the performance of a public *241 duty; as an individual lie seeks the enforcement of a private right. With respect to the latter he alleges that being the lowest responsible bidder for the construction of the public work described in the writ, which the respondent concedes, he has a clear legal right to have the contracts for such construction awarded to him; that such right is in no way affected by the outstanding restraining order granted by the Circuit Court of Cole County, in the case of East et al. vs. State Highway Commission, because he was not a party to that proceeding and could not under the law have been made a party thereto; and that he is entitled to mandamus for the enforcement of his said right, not only for the reason that it is an appropriate, remedy, but because the law affords him no other. But conceding that relator has a clear legal right to the award of the contracts referred to, unaffected by the existing restraining order, and that mandamus is the proper remedy for its enforcement, still it does not follow that a peremptory writ should issue in this case. This for two reasons. First, the necessary effect of the award of the writ would be to render ineffectual the proceeding being prosecuted by the citizens of Callaway County in the Cole Circuit Court and thereby deprive them of the relief they there seek without their having had “their day in court.” Relator insists, however, that their contentions were determined adversely to them in the. prior case of Castilo, and that they are concluded by the judgment in that case because they were parties thereto by representation. But whether they are so concluded is a question which should be heard and determined in the cause they are prosecuting in the circuit court, where both they and their adversary will be afforded an opportunity to be heard. Mandamus is, within the well-understood limitations, a discretionary writ. ‘ ‘ Cases, may arise where the applicant for relief has the undoubted legal right, for which mandamus is the appropriate remedy, but where the court may, in the exercise of a wise judicial discretion, still refuse the relief.” [High, Extra.Rem. (3 Ed.), p. 13, *242 sec. 9; State v. Railroad, 77 Mo. 143.] And it is the exercise of snch a discretion to refuse the writ where, if granted, it would, in a collateral manner, decide questions of importance between persons who are not parties to the proceeding* and have had no notice and opportunity to interpose their defense. [People v. Forquer, Breese (1 Ill.) 104.] The second reason why the writ should not go in this case finds expression in the text of the eminent author from whom we have heretofore quoted, as follows: “And the rule is well established that the writ by an injunction in the same court or in an-will not be granted to compel the performance of an act which has been expressly forbiddeu other court of competent jurisdiction, or whose performance would be in direct violation of an existing injunction, even though the person seeking relief by mandamus is not a party to the injunction suit. Courts will not compel parties to perform acts which would subject them to punishment, or which would put them in conflict with the order or writ o.f another court, nor .will the court, in such cases, to which application is made for mandamus, inquire into the propriety of the injunction.” [High, Extra Rem. (3 Ed.) sec. 23.] The reason for the rule is, in part, that the respondent should not be placed between two fires by subjecting him to contradictory orders and render him liable to punishment on the one hand for contempt for the violation of the injunction, or on the other hand for the violation of the mandate. • As already noted the respondent in this case suggests that it will suffer no embarrassment on account of a mandate directed to it to award the contracts in question, if this court will promise in advance to protect it from the judicial wrath which may be aroused on- the part of the Cole Circuit Court by a* violation of its order. Possible embarrassment of both respondent and ourselves will be entirely avoided by a refusal of the writ. It is next suggested by relator that even if the order in the East case should be dissolved by the Circuit Court *243 of Cole County, there is no assurance that some other set of citizens going before some other circuit judge might not obtain another restraining order and again tie up the construction of the highway in controversy. In this connection he contends that the public interest involved is sufficient to take this case out of the general rules governing the issuance of the writ of mandamus. In support of this contention he cites, among others, the case of Board of Supervisors v. Judges, 64 N. W. (Mich.) l. c. 44, wherein it is stated: “. . . important public improvements should not be compelled to await the ‘law’s delay’ consequent upon the final determination of a long chancery suit, and . . . the writ of mandamus is proper under the circumstances to obtain a speedy determination.” Assuming, without deciding, that cases involving a paramount public interest should be excepted from the rule which forbids the issuance of a writ of mandamus to compel the performance of an act which has been enjoined by a court of competent jurisdiction, we are of the opinion that the public interest does not require the case in hand to be so excepted. In the first place it is just as much to the public interest to have the cross-state highway from St. Louis to Kansas City constructed on a proper route, that is, one determined in accordance with the provisions of the statute, as it is to have it speedily constructed., In the second place it is perfectly apparent that the East suit would not have been brought, nor would a temporary restraining order therein have been made,' but for the fact which had become patent, namely, that the Highway Commission would succeed in completing the construction of a highway on the changed route before the statute defining their authority with respect thereto could be finally passed upon in the Castilo case. It must be assumed that when this court has construed the statute in respect to the authority it confers upon the Highway Commission to change the routes which the latter designates for higher-type roads, such construction will be followed by the circuit-courts of the State, as it is their constitutional duty to *244 do, and that they will not issue vexatious restraining orders which operate merely to impede or obstruct the building of the State Highway System now going forward with such marked progress. For the reasons herein appearing the peremptory writ is denied and the proceeding dismissed. All concur, except Otto, J., not sitting; Atwood, J., in result only.