71 P.2d 1019 | Ariz. | 1937
Graham County, hereinafter called petitioner, acting by and through its board of supervisors, filed in this court an original petition for a writ of mandamus against the members of the Arizona State Highway Commission, hereinafter called respondents, directing them to supervise and maintain a certain highway in Graham County.
Petitioner bases its claim on chapter 26 of the act of the 13th Legislature of Arizona, which reads as follows:
"An Act Relating to highways, and directing the state highway commission to designate as a state route the Pima-Hot Springs-Fort Thomas and Pima-Bryce-Safford road.
"Be it Enacted by the Legislature of the State of Arizona:
"Section 1. Designation of highway. The Arizona highway commission is authorized and directed to designate as a state route, include in the state highway system, and assume supervision and maintenance of that certain highway in Graham County beginning at the northern boundary of the city of Pima and running in a northerly direction to and crossing the Gila river at Bryce, one fork thereof thence running in a southeasterly direction to the Gila river crossing and connecting with highway 70 at the city of Safford, the other fork running from Bryce in a northwesterly and westerly direction to the towns of Eden and Indian Hot Springs and crossing the river and connecting with highway 70 at Fort Thomas." *223
It alleges that, after said bill became a law, the highway commission did designate the highway set forth in chapter 26,supra, as a state route, and adopted a budget which included $8,270 for the maintenance thereof, but that it then immediately adopted another resolution suspending the maintenance until it was determined whether chapter 26, supra, was constitutional. It is alleged that such chapter imposed a mandatory ministerial duty upon the respondents, and that they should be compelled by this court to fulfill that duty.
The alternative writ was issued in due course, and respondents in their return thereto demurred, moved to quash the writ, and answered, and the case was submitted to the court upon the petition, the return and the briefs accompanying the same.
There are a number of interesting questions of procedure raised by the pleadings, not the least important of which is whether or not Graham County is entitled to maintain an action of this kind. We think, however, that the case can and should be determined on the issue of whether or not chapter 26, supra, is a valid exercise of legislative power. Section 19, subdivision 8, of part 2 of article
"No local or special laws shall be enacted in any of the following cases, that is to say: . . .
"8. Laying out, opening, altering, or vacating roads, plats, streets, alleys, and public squares."
And it is contended that chapter 26, supra, violates the constitutional provision in that it does attempt, by special law, to lay out and open a public road.
[1] The question of what is meant by the words "lay out," when used in reference to roads and highways, has frequently been before the courts, and it has practically universally been held that the term is *224
comprehensive and includes all the steps necessary to establish a highway for public use, including the location of the road, the acquiring of the right of way, and the dedication to the public in the manner provided by law. Town of Wolcott v. Pond,
"Be It Enacted by the Legislature of the State of Arizona.
"Section 1. There is hereby appropriated out of the General Fund of the State of Arizona, not otherwise appropriated, the sum of one hundred fifty thousand dollars, or so much thereof as may be necessary to be expended under the direction of the State Engineer, for the purpose of improving the highway in Pinal and Maricopa counties, extending from Casa *225 Grande in Pinal county to Gila Bend in Maricopa county.
"Section 2. The State Auditor is hereby authorized and directed to draw his or her warrants upon the General Fund for all claims for the construction and improvement of said highway when approved by the State Engineer in amounts not in excess of the appropriation hereby provided for, and the State Treasurer is hereby directed to pay the same."
It will be seen that this act is nothing but a direct appropriation of money to be expended in improving a certain highway. We think that the two cases are very different. In the Rowland case it was assumed by all the parties that a public highway already existed, and the legislature had merely appropriated money to improve the same, and the principal points decided were that the Highway Commission could not use the money appropriated on any other road than that prescribed by the legislature, but neither could it be compelled to expend the money on the designated road. We think the Rowland case is not authority for the contention of the petitioner, but rather to the contrary, for it distinctly holds that the highway commission cannot be mandamused to spend the money appropriated by the legislature, since it may at any time vacate the entire road.
[2-5] There is, however, a more serious objection to the petition. In the present case the complaint nowhere alleges that the road referred to by chapter 26, supra, is a legal public highway, nor does the chapter state it is. In the absence of a pleading to the contrary, it might perhaps be assumed that the words "that certain highway," contained in the chapter, referred to a legally established highway. But this construction is challenged by an allegation, both in the motion to quash and in the answer, that it is not a public highway, but merely a road over certain private *226
and public lands which has never been established as a public highway in the manner required by law, and this allegation is not challenged by the petitioner, so that we must assume it to be true. It is hardly necessary to state that neither the county nor the state may expend money upon what, as a matter of law, is merely a private right of way and not a public highway. Section
The motion to quash the writ heretofore issued is granted.
McALISTER, C.J., and ROSS, J., concur.