Board of Supervisors v. Callender, No. 22278

No. 22278 | Miss. | Oct 15, 1921

Cook, J.,

delivered the opinion of the court.

Appellees exhibited their bill of complaint in the chancery court of Claiborne county against the board of supervisors of that county, seeking to restrain the board from using any part of the money derived from the sale of road bonds of supervisor’s district No. 1 on a certain proposed road of the district. A preliminary injunction was issued, and on the final hearing a motion to dissolve the injunction was overruled, and from this decree the board of supervisors prosecuted this appeal.

The bill of complaint charged in substance that, the required number of qualified electors of the supervisor’s district having petitioned for the organization of a road district under, the provisions of chapter 176, Laws of 1914, an election was held to determine whether bonds should be issued by the board of supervisors for the purpose of constructing certain named roads in such district; that at such election there Avas submitted the question of Avhether said bonds should be voted for the purpose of constructing, among other roads, the road leading from Port Gibson to Rodney and knoAvn as the old Rodney road; that it Avas understood and expressly requested that the proceeds of the bonds should be applied toAvard repairing and improving, among other roads, the road knoAvn as the Rodney road leading through or about the center of said district No. 1; that an issue of bonds to the amount of seventy-five thousand dollars Avas authorized for these purposes; that the board of supervisors passed an order authorizing the application of eight thousand dollars of the money arising from the sale of these bonds to the maintenance, repair, and construction of the said Rodney road, which leads through the center of the district; that since the bonds were issued it had become knoAvn that the board of supervisors was about to order the construction of a road leaving the old Rodney road about two miles from Port Gibson and extending along the northern side of the district until it connects Avith the old road about eight miles from the point of deviation; that the construction of the road as proposed would deprive a- large proportion of the population of the district of the use and benefit of a good road; that a large majority of the people of the district constantly use the old route, and they Avill not be benefited by the proposed neAV route; that the diversion of the funds to the new route is contrary to the will, interest, and purpose of the voters Avho approved the issuance of the bonds; that this diversion of the bond money will work a great injury to a large majority of the taxpayers of the district; that only a small percentage of the population of the district will derive any benefit from the construction of the. road along the new route; that under the provisions of said chapter 176, Laws of 1914, road commissioners Avere appointed for said district, and that such commissioners were charged Avith the performance of certain named duties; that such commissioners had not discharged any of the duties necessary to be performed by them to authorize the construction of this proposed road; that the commissioners had not selected the proposed road and had not recommended the construction thereof; that the board of supervisors had wholly ignored its former order for the construction and improvement of the old Rodney road, and had ignored the said commissioners, and, without-any report or recommendation from such commissioners, the board had undertaken to direct the construction of the said road on the north side of said' district, without legal authority so to do and in violation of the provisions of said chapter 176.

The answer filed by the board of supervisors averred that it had ordered an election to determine whether said district No. 1 should be organized as a separate road district under the provisions of said chapter 176, Laws of 1914, and amendments thereto; that it was the purpose of said board to deviate from the route of the old Rodney road and to work and improve the new route indicated in the bill of complaint; that said intended change in said road will accommodate more people than the old route and will be far less expensive; that the board had not abandoned the old route; that said intended change in said road comprises only a link in same, and that it joins and becomes a part of the old road nine miles from Port Gibson. The answer denied that the proposed change was contrary to the wishes of a large majority of the people of the district; denied that it ivas the purpose of the voters of said district to have any certain route or plan adopted when they voted the bonds; denied that any particular- roads were designated by the people voting at such election; denied that the intended route would injure or inconvenience any large number of persons living in said district; and averred that the change would benefit the people of the district and Avould afford them a cheaper, safer, and shorter route to the county seat.

For the purposes of this decision we deem it unnecessary to set out in detail the evidence offered" at the trial. The testimony was very conflicting as to the comparative cost of the two routes, and also as to the number of people who would be served by each route. It appeared that the road commissioners had recommended that the sum of eight thousand dollars be apportioned to the improvement of the Rodney road, and that this recommendation was marked approved by the president of the board, but it was never approved by the board and entered on its minutes. There also appears in the record the following agreement of counsel:

“It is agreed between the solicitors herein -that the road commissioners and their engineer never made any reports whatever to the board of supervisors adopting the road on the north side in district 1 paralleling Bayou Pierre, known as the new road; that no report was made recommending it by the road commissioners; that the engineer under their direction had made no survey, no estimate of the cost per mile or otherwise, or reported it to the board; and that no report whatever of the road commissioners was adopted and spread upon the minutes of the board; and that the board itself, of its own motion, laid off on the north side of district 1 the so-called new road.”

On the day of the trial of the cause in the court below the commissioners filed with the board of supervisors a report to the effect that they had inspected the proposed change in the Rodney road, and that the new route was impracticable on account of the expense of constructing a necessary embankment through a certain swamp on this route; and on the same day the board of supervisors entered on its minutes a formal order selecting the proposed new route to be constructed and improved under the provisions of chapter 176, Laws of 1914, and amendments thereto, including chapter 277, Laws of 1920, and ordering that plans, specifications, and estimates should be filed with the board according to law, and that the road commissioners proceed to comply with the order.

This case presents for decision the sole question of whether, under the provisions of chapter 176, Laws of 1914, as amended by chapter 277, Laws of 1920, the board of supervisors may order the construction, of a road in the district which lias not been selected and recommended by the highway commissioners.

Under section 170 of the Constitution, the board of supervisors is vested with full jurisdiction over roads, ferries, and bridges, to be exercised in' accordance with such regulations as the legislature may prescribe, and under this constitutional provision the legislature cannot, under the guise of regulations, divest the board of supervisors of its jurisdiction and substitute other agencies as the controlling factor'in the exercise of this jurisdiction.

Under section 5, chapter 176, Laws of 1914, which was re-enacted as section o, chapter 277, Laws of 1920, it is made the duty of highway commissioners to have the management and supervision of roads constructed under the provisions of these chapters, subject, however, to the approval of the board of supervisors; it is made the duty of such commissioners, subject to the approval of the board of supervisors, to determine and fix what road or roads shall be constructed; it is made their duty to employ a competent engineer to lay out such road or roads as they shall determine upon, whose duty it shall be to make an estimate of the cost of constructing and maintaining such highway or highways for each separate mile covered by such survey, and report such survey and estimate to such cdmmissioners for approval or rejection, and, when such survey and estimate is adopted by such commissioners, it is made their duty to report the same to the board of supervisors for approval or rejection; and finally it is provided that all acts of such commissioners are subject to ratification or rejection by the board of supervisors.

It will thus be noted that all acts of the highway commission are subject to the approval or rejection of the board of supervisors, and in case of disagreement between the commission and the board it follows as a necessary consequence that the board of supervisors, in the exercise of full jurisdiction over the roads, must be the final arbiter. If any veto power should be conferred upon the highway commission, or if the board’s power to act is made dependent upon the will of some other agency or factor, this in effect destroys the full jurisdiction over roads conferred by the Constitution on boards of supervisors, and under chapter 176, Laws of 1914, as amended by chapter 277, Laws of 1920, in providing regulations for the exercise of the board’s jurisdiction over roads, ferries, and bridges, the legislature has not attempted to create any other agency with' concurrent or equal power or jurisdiction with the board, or with power to control the discretion vested by the Constitution in the board of supervisors. If there could have been any doubt as to the correctness of this construction of the provisions of chapter 176, Laws of 1914, all doubt as to the legislative purpose and intent was removed by amendments thereof as enacted in chapter 277, Laws of 1920, which expressly provides in section 23 thereof that — “The provisions of this chapter shall not apply to any road or roads except those selected by the commissioners, unless otherwise ordered by the board of supervisors(Italic ours.)

We conclude, therefore, that under the provisions of chapter 176, Laws of 1914, as amended by chapter 277, Laws of 1920, although the highway commission recommends the building of a certain road, the board of supervisors may order the construction of a different road, and that their discretion in the matter cannot be controlled by the will or discretion of the highway commission. In the case now before us, the board having ordered the construction of a particular road, it is the duty of the commissioners to proceed to have surveys and estimates of the proposed road made, and to proceed with the construction of the particular road in exact accordance with the provisions of the chapters under which they are operating.

The decree of the court below is therefore reversed, the injunction dissolved, and bill dismissed.

Reversed and bill dismissed.