This is an original proceeding in the Court of Appeals pursuant to GCR 1963, 714.1. The Board of County Road Commissioners of Oakland County seeks a judgment of mandamus against the Michigan State Highway Commission and associated personnel, compеlling them to forthwith complete the construction of Northwestern Highway in accordance with the terms and conditions of a contract executed by the parties on March 7, 1957. By its own language the contract is to remain in effеct for 25 years from that date. On October 1, 1976, this Court issued an order directing defendants to show cause why the relief sought in plaintiffs complaint should not be granted.
To finance construction of the 37.8-mile highway, the State Highway Commissioner sold tаx bonds worth $25,000,000 at public sale on April 9, 1957, pursuant to MCLA 252.61; MSA 9.1094(11). In order to complete the financing, the Oakland County Board of Road Commissioners agreed to share the costs of construction. Each year the county, carrying out the terms of the 1957 contract, has contributed $90,000 to the construction fund from its share of state taxes on motor vehicle fuels.
By 1962, a 5.5-mile segment of the highway, extending from the north end of James Couzens Highway in the City of Detroit northwesterly to Telegraph Rоad (U.S. 24), had been constructed. Most of the proceeds derived from the sale of the bonds was expended in this construction, despite the original expectation that the entire highway could be constructed for $37,000,000. By this actiоn for mandamus plaintiff asks the Court to *508 order the state highway commission to complete the remainder of the highway forthwith.
The primary issue confronting the Court is the propriety of a writ of mandamus in this situation. Mandamus is an extraordinary remedy, not to be entertained lightly. It may issue only under limited circumstances.
Dettore v Brighton Township,
In Michigan,
Clarke v Hill,
"Mandamus
is an extraоrdinary remedy, and is recognized as such. We have often held that it is inappropriate where there is another adequate remedy
in law or in equity;
and, as it is never supposed to be issued where there is not a clear legal right, it can hаrdly rest upon the ground that the right is undisputed. * * * To sustain the jurisdiction contended for would be to make the summary remedy by
mandamus
the substitute for an action or suit in a large class of cases.”
See, also,
Booker v Grand Rapids Medical College,
*509
The Board of County Road Commissioners has adequate remеdies, both legal and equitable. If plaintiff wants some of the money it raised for the highway returned to it but is satisfied not to have the highway completed, it may sue for damages in the Court of Claims. If plaintiff wishes the highway completed, it may file a suit for specific enforcement of the contract. When there is a plain, direct and adequate alternative remedy, courts will not permit the use of a writ of mandamus.
Coffin v Board of Education of
Detroit,
Even were we to concede that plaintiff lacked adequate alternative remedies, we would still be forced to conclude that mandamus is improper in this casе. Mandamus lies only when there is a clear legal duty incumbent on the defendant and a clear legal right in the plaintiff to the discharge of such duty.
Miller v Detroit,
*510 We cannot find that the act here at issue leaves nothing to the exercise of discretion or judgment. The extensive powers and duties of the state highway commission, contained in MCLA 247.807; MSA 9.216(7), necessitate the continual use of discretion and judgment.
Oklahoma’s Supreme Court, in a case factually similar to this, considered the nature of a state highway commission’s functions. In
Board of Commissioners of Harmon County v State Highway Commission,
163 Okla 207;
The Oklahoma court held that plaintiff was not entitled to specific performance of the contract. In so holding, the court relied upon the fact that, in spite of the contractual duty the highway commission had undertaken, its functions still involved a measure of discretion whiсh could not be relinquished.
"While the state highway commission could by contract create a duty to plaintiff, the state highway commission could not contract away to plaintiff its discretion in reference to the discharge of its dutiеs to the remaining citizenship of the state. * * * The state highway commission has the discretion in the first instance to determine as to the location and improve
*511
ment of highways. It has the right to determine that it will construct a certain highway, or that it will not. If it concludes to build a certain highway, and before doing so there arises or intervenes a duty to the state as a whole, or an emergency, or change in conditions, or circumstances of such serious proportiоns as is disclosed by the record in this case, surely the state highway commission must be accorded the right to postpone, or if reasonably and in good faith deemed necessary, to abandon such project, even though a рromise may have been made to a board of county commissioners to complete such project.”
In a later case,
Board of Commissioners of Canadian County v State Highway Commission,
176 Okla 207;
The fiscal ability to construct needed roads and highways in Michigan is limited. As the Oklahoma court has recognized, determination of what needs are critical or require priority treatment is a funсtion within the discretionary authority of the state highway commission, provisions of lawful contracts notwithstanding.
Michigan is not without cases analogous to this. In
Stephenson v The Common Council of the City of Detroit,
The dutiеs of the state highway commission are comparable to the duties of the city officers in Stephenson. The commission must utilize judgment in exercising its functions; it possesses the discretion to decide if and how, in the best interests of the state, it will perform. Plаintiff board seeks to compel an act which is not of a mere ministerial nature. Consequently, defendant does not have the type of clear legal duty it must have if the writ is to issue.
Nor does plaintiff have the clear legal right to performance which mandamus requires. We note first that mandamus will not be granted to compel public officers to perform a duty assumed by contract, unless mandated by statute. 52 Am Jur 2d, Mandamus, § 75, p 397,
Miller v Imperial Water Co,
156 Cal 27;
The statutes on which the board of county rоad commissioners bases its right to have Northwestern Highway completed are inadequate grounds on which to issue a writ of mandamus. The board contends that because the bonds were sold pursuant to MCLA 252.61; MSA 9.1094(11), it has the right to immediate completion of the highway. That statute says in part:
"For the purpose of providing funds for the immediate construction and completion of the project or projects contemplated by said contract or contracts, either the state highway commissioner or any county, city or village that is a party to such contract or contracts is *513 authorized to borrow money and issue its negotiable dedicated tax bonds * * * (Emphasis supplied.)
Aside from the problem of whether the word "immediate” modifies only "construction” or both that word and "cоmpletion”, there is nothing in the statute which suggests that it was intended to give the county any substantive right to "immediate construction and completion” as against the state. Rather, the statute addresses itself to the right to borrow money and issue bоnds. This Court cannot give a statute an interpretation never intended by the Legislature.
The board of county road commissioners also, relies upon MCLA 247.661a; MSA 9.1097(lla) which directs that any additional monies in the state trunk line fund arising from the 1973 increase in fuel taxes shall be used first for the construction or reconstruction or the payment of bonds for several enumerated highways. The segment of Northwestern Highway not yet completed is one of many listed. Again, we find no language in the statute which even implies that it was intended to give the board of county road commissioners any substantive right to compel the state highway commission to forthwith complete Northwestern Highway.
Mandamus is not the proper remedy in this case: the board of road commissioners has adequate alternative remedies. 2 Moreover, mandamus *514 will not lie to compel a discretionary act, such as the decision by the state highway commission to construct a highway. No "clear legal duty” to finish the highway devolves upon defendant. Plaintiff board possesses no "clear legal right” to compel the state highway commission to complete Northwestern Highway forthwith. The writ of mandamus is denied.
Notes
In certain instances mandamus will lie though the action sought to be compelled is discretionary. A court can order a public officer to carry out acts of a ministerial nature despite the fact that they require a measure of discretion.
Cf.
cases cited in
Lundberg v Corrections Commission,
We are not presented with a precise claim for speсific performance in this case but, in effect, that is what plaintiff seeks — and we reject— in this suit for mandamus. The inherent discretionary nature of the state highway commission’s functions as discussed in the body of the opinion is the basis for not allоwing specific performance of the contract. This was the basis on which the Oklahoma court rejected plaintiffs claim for specific performance in
Board of Commissioners of Harmon County v State Highway Commission, supra.
There the court held the highway commission could not sacrifice the state’s paramount interests
to
those
of
the county board of road commissioners
*514
with whom the highway commission had contracted.
See, also, Jackson v State Highway Department,
164 Ga 434;
In Harmon County, after rejecting the claim for specific performance, the court considered the question of reimbursement оf the $75,000 plaintiff county had paid to the defendant highway commission. It was decided that the fairest solution would be to remand for a determination of what had been paid, but not used, for that part of the originally designated highway which had been abandoned. That amount would be refunded to the county. In the present case, a determination of damages in accord with the method specified in Harmon is a fair and feasible solution.