ON RESPONDENT'S MOTION FOR REHEARING. The respondent's motion for rehearing is based upon the theory that we incorrectly held (page 7 of the Opinion) that the A.S.B. Bridge was tendered to the State without consideration. Respondent says that we overlooked certain provisions of the contract between the Commission and the Bridge Company. It seeks to find a consideration in the fact that the Commission agreed to maintain the bridge perpetually (Abstract, pages 30 to 37). The provision cited states: "Said Commission does hereby covenant and agree to maintain perpetually the said bridge and approaches thereto and every part thereof (except as otherwise herein expressly provided)." It is contended that this obligates the Commission to maintain the lower deck of the bridge which is to be used exclusively by the bridge company. Our construction of this provision is that the Commission agrees to maintain the entire structure and that the maintenance of the railroad deck is only incidental to the maintenance of the bridge itself. In other words you could not maintain the bridge without also maintaining the railroad deck as an integral part of it. The only part of the railroad deck which is separate and distinct from the bridge and which exists for the sole benefit of the bridge company is the track and the bridge company agrees to maintain this without any expense to the highway department.
The other argument is that the highway department, in agreeing that any repairs on the bridge of a major character are to be subject to approval by the bridge company, gave up some of its legal rights, and this would constitute a consideration. The point is that the Highway Department never acquired the whole bridge but acquired certain easements in it, among which was the right to repair, but that that right was subject to certain conditions and exceptions, one of them being that the Highway Department must submit its plans to the Bridge Company's engineers. The distinction between a consideration of a promise and certain conditions and exceptions therein is hard to draw. But [955] it seems to me that the statute in writing *Page 879 that the bridge must be tendered free and without consideration does not mean that no conditions of any kind are to be attached to the grant. Such a construction of the statute would be far too narrow.
It is also argued that the bridge company had a right to require the Highway Department to build a new bridge under certain circumstances. This is absolutely a misconstruing of the contract. The contract, properly construed, means this: that the Highway Department, if it considers it wise or necessary, can build a new bridge at the existing site, in which event the rights of the bridge company in the old bridge will attach to the new one, which is merely a substitute for the old one. But if the State Highway Commission does not want to do this it can build another bridge at any time it wants to, subject only to the right of the bridge company to have the old bridge back. Again this is not the giving of any new promise by the Commission, but simply a limitation contained in the grant from the bridge company.
ON RESPONDENT'S MOTION TO MODIFY OPINION. [8] The respondent contends in this motion that we misunderstood their argument in regard to Section 8777, R.S. Mo. 1939. They now say that that section is unconstitutional because it gives a city or a county the right to force a bridge on the Highway Department. A careful reading of this section shows that it provides that the city or county may acquire a bridge which is a part of the State Highway System. Now the Commission has the full power to locate the roads which are a part of the State Highway System (although, of course, the roads must run from a certain designated point to another point). Therefore the Commission and the Commission alone can decide whether a given bridge is or is not a part of its system, and the city or county can do nothing about it until the State, through the Commission, has agreed to make the bridge a part of its system. We cannot see, therefore, how this section can be said to interfere with the constitutional powers of the Commission.
ON RELATORS' MOTION TO MODIFY OPINION. In this motion the relators ask that the Opinion be modified to immediately force the Highway Commission to set up a refund on its books for this bridge. In the opinion it is specified that the Commission be ordered to hear and determine the amount due. It is the position taken in the Opinion that the determination of this amount is a matter entrusted by law to the Commission and not to this court, and it seems that this position is absolutely correct and that regardless of the failure in the past of the Commission to act, we must still leave the determination of the amount to it. Its failure to act in the past was obviously due to a misconception of the law. I feel that after we have determined the law they will obey our mandate and *Page 880 properly set up the refund on their books as soon as they have determined the amount of it.
Relators also complain in this connection of our holding that the Commission does not have to pay this refund immediately. They say that the Constitution makes the payment of it a mandatory duty. This is true; but the Constitution also says that the highway funds are to be used for construction and maintenance of the roads and it is unquestionably the duty of the Commission to say which of these various purposes are to come first. For this court to interfere and to say that a certain bill must be paid before others would cause the greatest confusion in the work of the Commission. In fact it would be practically impossible for the Commission to function if we were called upon to constantly interfere and tell them what job to do first.
CONCLUSION. My conclusion is, therefore, that the Opinion ought to stand exactly as written.