83 W. Va. 114 | W. Va. | 1918
Edward T. Chrystal and four others, citizens and taxpayers of Portland District, Preston County, brought this suit to enjoin the County Court of said county and Charles Spindler from carrying out a contract for permanent road construction. The court sustained a demurrer to the bill and, plaintiffs declining to amend, dismissed it, and plaintiffs have ajipealed. The case is now before us on a motion to reverse, leave thereof having been granted on the 17th of September, 1918.
The questions of bonding said district in the sum of $280,-000 to improve certain roads therein and of authorizing a levy to provide a sinking fund to discharge the bonds when they became due were legally submitted to the voters thereof and carried. In the order of submission, the road in question was described as:
“A fifteen foot concrete road beginning at the Maryland ■line, just west of Hutton, Mainland, and extending to and through the town of Terra Alta: thence to and through the Town of Albright to the Pleasant District line.”
The bill alleges that the order submitting the matter to the voters provided for a committee of three citizens, to be appointed by the County Court, “to confer with the court in all transactions pertaining to the sale of said bonds and the ■expenditures of the proceeds thereof;” that the citizens of Portland District selected, as such committee, Calvin De-Berry, M. F. Walls and Eli Albright; that the County Court made an order on the 31st of January, 1916, ratifying and ■confirming the selection of said committee “to aid, assist and •advise with the court in the construction of the roads pursuant to said road bond election;” that the County Court ■entered into a contract with the defendant Charles Spindler, without advising or consulting with said citizens committee, for the construction of parts of the road at the extremities thereof as follows: “leading from the Maryland line to Terra Alta, a distance of 3.9 miles for $80,000, and leading from the Pleasant District line by way of and through the town of Albright to the bridge over Daugherty Run in the town of St. Joe, length 3.4 miles, ’ ’ for $95,000, provided the grading
Plaintiffs contend that the County Court violated the provisions of the order submitting the bond issue to a vote of the people, in that it did not advise with the citizens committee before entering into the contract with Spindler; in determining the parts of the road to be first improved; in providing for the building of something over seven thousand feet of road up Muddy Greek, paralleling the Pleasant District, line between the town of Albright and the said district line, beyond a point where a substantial iron bridge spanned said creek, which point should have been regarded by the court as the end of the road; and in making no provision for building a permanent road through the town of Terra Alta.
The bill having been dismisssed on demurrer, its allegations must be taken as true. It does not appear why the County Court refused to advise with the citizens committee, the selection of which it had approved by order of record. But its failure to do so is not fatal to the contract. The committee’s powers were only advisory, it had no power to control or prevent the action of the County Court, which was empowered by law to expend the fund. Its powers were much more limited than were the powers of the committee in Lawson v. County Court, 80 W. Va. 612. In that ease the order submitting the bond issue to a vote provided that, in case it carried, the committee named should have power to approve the selection of the engineers who were to have
The language of the order submitting the question to the voters describing the road to be improved as, “beginning at the Maryland line,” etc., is only descriptive of the road. It was not intended to prescribe the place of beginning the permanent work, nor the method or order in which the work should be carried on. The County Court had the right to apply the fund on such portion, or portions of the road where, in its opinion, it was most needed and where it would serve the greatest number of people. Likewise it had the discretion to determine the necessity or expediency of building the seven thousand feet of road up Muddy Creek beyond the point where the iron bridge spanned said creek and connected with a road in Pleasant District. On the map exhibited with the bill the road voted to be permanently improved appears to run parallel- with the Pleasant District line for some distance but does not cross the line until it reaches the point to which the contract with Spindler provides it is to be improved, aqd; while it is true, as alleged in the bill, the road might have been shortened considerably more than a mile by connecting with the Pleasant District line at the iron bridge, still the court was not bound to stop at that
In respect to the County Court’s failure to provide for building the road through the town of Terra Alta, the bill does not allege that the court does not intend to do so in the future; nor does it appear that the road does not connect ■with a paved street leading through said town on a direct line of the public road. If the road does not connect with a street which is not in fact improved, and on the location of the road, more than enough of the fund will be left, after the completion of that part of the road already under contract, to permanently improve such street. By section 24, Art. 8 of the Constitution, and Sec. 9, Ch. 39 of the Code, the county courts are given jurisdiction over the establishment and regulation of roads, and, incidental to such jurisdiction, have a wide discretion. When the County Court saw tíxat the fund derived from a sale of bonds was not sufficient to improve permanently the road throughout its entire length in the district, it could lawfully apply the fund to the improvement of such parts of it as, in its judgment, would accommodate the greatest number of citizens.
The motion to reverse is overruled and the decree appealed from affirmed.
Decree affirmed.