Original proceeding in this court to prohibit respondents, composing the county court of. Linn County, from exercising jurisdiction in a procеeding instituted in the county court *120 for the establishment of a change of public road so that the same will run through the lands of relators. The сounty court proceeding is in conformity with Sections 8473 to 8478, both inclusive, Revised Statutes Missouri, 1939, [Mo. R.S.A.] which purport to vest in the county court еxclusive authority to establish and maintain public roads.
Those statutes were valid' when enacted for the Constitution then vested county' courts with judicial power and made them courts of record. Under the new Constitution adopted in 1945' county courts are administrative bodies entirely without judicial power.
Relators contend that the new constitution renders the statutes above mentioned invalid, because the establishment of public roads is a judicial function which county courts can no longer exercise.
Respondents, while conceding that county courts no longer have judicial power and that some phases of the establishment of public roads involve thе exercise of judicial or quasi judicial power, contend that the new Constitution does not invalidate the above statutes. Their reasoning is: that the main features of the establishment and maintenance of public roads are administrative county business and that Section 7, Article VI, of the new Constitution gives the county court exclusive authority to transact all county business.
Recently, in Rippeto et al. v. Thompson,
Respondеnts say that case is not in point here because it relates to a private road, which is a matter between private persons and nоt a part of the county business. Respondents are partially correct in the • distinction they make between private and public roads. They are also correct in asserting that many of the functions connected with the establishment and maintenance of public roads, properly fall within the term “county business” as used in the Constitution. But when it becomes necessary to exercise the power .of eminent domain to take private property for the purpose of a road, either public or private, the judiciаl power of a court must be invoiced. To that extent our decision in the Rippeto case is pertinent to the issues in the instant case.
The power of eminent domain is an inherent attribute of sovereignty to be exercised by such agencies, for such public рurposes ánd in such manner as may be provided by law. [State ex rel. Highway Comm. v. Gordon,
There is a distinction between “public necessity” and “public use. ’ ’ The propriety and necessity for the location of a public road is á legislative and not a judicial question. [City of Kirkwood v. Venablе,
County courts may .acquire the right-of-way for such roads by purсhase or donation, but, if land owners are unwilling or unable to convey, the necessary right-of-way can be ■ acquired only by condemnаtion proceedings in a tribunal having the necessary jurisdiction. Section 8486, Revised Statutes Missouri, 1939, [Mo. R. S. A.] and Laws of 1945, page 1469, Section 2518, [Mo. R. S. A.] еxpressly authorize a county court to institute such proceedings in a circuit court and provide a speedy and expeditiоus method of acquiring the necessary land for road purposes.
Section 8486 was enacted in 1919 and was amended in 1939 to correсt a defect pointed out in our decision in Barker v. St. Louis County,
Section 2518.1 was approved in April, 1946, and broadened the purposes for which the county court may institute condemnation in the circuit court to include not only roads, but drainage'systems and other public purposes. Thus, the general assembly recognized that after the new Constitution should become fully effective on July 1, 1946, in accordance with Section 2 of its schedule, the county court would lose the power to render a judgment in condemnation.-
*122 In tbe instant case relators’ petition alleges that the county court lacks authority even to determine the necessity for a public road, аnd our preliminary rule prohibits the county court from taking any action in the matter pending before it. As we have already indicated, that is tоo broad for the question of public necessity is within the jurisdiction of the county court.
However, the respondents by their return claim the рower and indicate an intention of exceeding their jurisdiction by rendering a judgment which will take the land of relators.
Accordingly, our preliminary rule is hereby modified and made permanent so as to prohibit respondents from rendering a judgment or making an order purporting to divest relators of their title, and from taking possession of relators’ lands until title has been acquired by voluntary conveyance or by valid judgment in condemnation. It is so ordered.