80 W. Va. 626 | W. Va. | 1917
To the voters residing in Morgan district, in which is included the city of Morgantown, the county court of Mon-ongalia county, in response to the request of a petition addressed to it signed by the requisite number of persons having the-essential qualifications, submitted for approval or rejection the question of authorizing the county court, in the name of the district and as chargeable to it alone, to create an indebtedness of three hundred thousand dollars by. the issuance and sale of county bonds, the proceeds' of the sale to be devoted and applied to the permanent improvement of certain public roads of the county within that district. At an election held and conducted in the manner required by law, upon a notice duly published and posted as likewise required,the electors who on September 18, 1915, exercised the elective franchise, approved, by a majority largely exceeding that by statute made a condition precedent to the right of the court so to encumber the property of the district, the proposition to bind the property, and consented to be taxed to raise the amount required to pay the annual interest to accrue on the debt and to create a sinking fund to liquidate it within thirty four years from the date of the bonds, that date being January 1, 1916. The bonds have been issued and sold, and the proceeds of the sale placed in the possession or under the control of the sheriff of the county, subject to the payment of such orders as the. county court may lawfully issue chargeable to that fund, but to be applied to accomplish the purposes of its creation and to no other purpose.
The petition, order of submission, and notice of. the election definitely prescribed, designated and defined the eleven roads
By the bill, the allegations of which are not denied by the county court upon the question of the identity of the roads to be improved but by it admitted to be true, plaintiffs, who are residents, voters and taxpayers of Morgan district, and who, for the purposes of travel, use the Deckers creek road in going to and from Morgantown, the county-seat and business center of Monongalia county, charge' that, instead of taking the necessary steps to appropriate and expend a ratable share of the proceeds of the bond issue to the permanent improvement of the Deckers creek road the entire distance between the end of the pavement on Brockway to the intersection of that road with the Sabraton road, the county court has avowed its intention and purpose and has entered into a contract to improve permanently only that part of the road known as the Deckers creek road which is located and by the public used and occupied as a highway between Brockway and Pool’s Rocks, and not to appropriate or expend any portion of such proceeds for the improvement of any part of that road between Pool’s Rocks and its intersection with the Sabraton road, a distance of approximately half a mile; and that the county court likewise has by its order declared and avowed its purpose and intention to adopt, and has adopted, for permanent improvement, by the appropriation and expenditure of the necessary part of
The circuit court denied the injunctive relief prayed for in the bill when presented upon an application therefor, but members of this court later did award the writ under the authority of §7, ch. 133, Code; and the circuit court, upon a final hearing of the cause on its merits, after full proof, dissolved the injunction and dismissed the bill. The cause is now here upon appeal for final determination, upon a motion to reverse the decree of dissolution and dismissal, as allowed by §26, ch. 135, Code.
The proposed departure from the route and roadway of the Deckers creek road the county court * defends on constitutional and legislative grounds, coupled with the twelfth paragraph of the petition, submission order and election notice. That tribunal cites and relies on §24, art. 8 of the constitution to sustain its action in the premises. The provisions of this section, it is true, confer on county courts, “under such regulations as may be prescribed by law”, the superintendence and administration of the internal police and fiscal affairs of their counties, including the establishment and regulation of roads, with authority to lay and disburse the county levies. But the qualifying clause quoted is significant and material. The manner of the exercise of the constitutional grant, by the grant itself, is made subject to legislative regulation, and hence is not absolute and unconditional. The exercise of the power may be regulated, limited and restricted in such manner and to such extent as the law enacting department of the state government may deem wise, prudent or necessary, without impairing or unduly restrict
But it is difficult to perceive that any constitutional question arises in this controversy. The theory, scope and purpose of the bill preclude the possibility of an intention or purpose to intrude upon or interfere with any right vested in the county court to perform any duty or exercise any power entrusted to it exclusively by the supreme law of the state. The injunction awarded and dissolved does not purport to inhibit or interfere with the action of the county court in ordering the establishment of a road where none theretofore existed; and no allegation of the bill assails as unlawful, or in derogation of the rights of the plaintiffs, any áetion taken or proposed by that tribunal in the establishment of new ways of travel. But the bill does assail as wrongful and unwarranted and in derogation of such rights the action of the county court in so far only as it attempts to divert a part of the proceeds of the bond sale to the improvement of a road not contemplated by the voters and taxpayers when they authorized the indebtedness on behalf of the district and gave their consent to be taxed to liquidate the liability assumed.- It is of this diversion, and not of the establishment of the new route, that plaintiffs complain. Such is the tenor, gravamen and purport of that pleading. To defeat the avowed purpose and intention to appropriate and expend part of the proceeds of the bond issue to improve a route not within the definition and subscription contained in the petition and the published order of submission and notice of the election for the bond issue, and not to appropriate any portion thereof to the improvement of that part of the Deckers creek roadbed between Pool’s Rocks and the present intersection with the Sabraton road, is the ostensible aim and object of the bill.
What has been said as to the constitutional question answers fully, as we think, the further proposition, contended for on behalf of defendants, that the only right of redress the plaintiffs have is by resort to a remedy other than by an injunction. This contention resolves itself into the question as to the lawfulness and unimpeachable character of the ac
The determination of the important and material inquiry depends upon the proper interpretation of the twelfth paragraph of the petition, submission order and election notice. On its provisions defendants base the power and authority to make the proposed departure in the way to be improved and the application of the trust fund to the improvement of the new route. That paragraph, applicable alike to all the roads so specified and delineated, provides “that the grades and location of the roads to be improved be changed “whenever necessary and possible to improve alignment or grade, and that the same be done under competent engineering supervision, according to modern methods”. The provision for changing grades and location when necessary to improve alignment and grade, it is contended, empowers the county court to make or cause to be made the departure from the original Deckers creek route and to improve the new rather than the old route.
To justify this departure from the old route, and the proposed diversion of the proceeds of the authorized bond issue, much proof was taken and filed upon the question of the comparative adaptability and feasibility of each route, the economy in the preparation and subsequent maintenance of each of them, and the number of persons to be accommodated and the safety to the users. Though it is thus made to appear that to improve the new route will necessitate the expenditure of less money than will the improvement of the old one, because of difference in the lengths of the routes and the cost of the preliminary work to be done to fit either of them to receive the improvement, there is a contrariety in the views and conclusions of witnesses who testify as to the probable permanency of the improvements on either location and the comparative safety of each one for public use after the improvement is made. There is apparently, however, an element of instability in each route, due to the character of the ground and the nature of the material convenient to make the necessary substructure for the roadbed when completed -as contemplated, and in the quantum of danger to travel on
In order to ascertain and appreciate more fully the scope, purport and meaning of the twelfth paragraph, and when ascertained to give it the interpretation to which it is entitled in determining the legality of the proposed alteration, it is necessary, first, to inquire what induced the approval of the proposed indebtedness, and what were the motives of the electors when voicing their consent to the creation and application of the fund voted by them. Did they so far identify the route as to show a purpose to limit the expenditure of the money appropriated to the improvement of a definite and practicable route, or grant permission to substitute a route other than the one they approved? What are these marks of identification as to the locations in controversy? They are (1) "the road known as the Deckers creek road”; (2) the termini of the route — "the end of the pavement on Broekway” and the "intersection with the Sabraton road”; (3) "road running by way of Deckers creek bridge”; (4) "up Deckers creek and by the sulphur spring”; (5) "across the bottom to an intersection with the Sabraton road”; (6) "a distance of about 1.9 miles”. With this description before him and these marks of identification, a traveler unacquainted with the location of the Deckers creek road could readily and easily find his way from Brockway to the Sa-braton road. With the same marks of identification before him, the elector who by his ballot gave expression to his willingness to encumber by taxation the property owned by
But it is contended that the proposed new location merely corrects alignment and grades, in conformity with the authority conferred by paragraph twelve. The word “alignment” reasonably can not be given a definition sufficiently broad and comprehensive as to permit such a radical departure as that proposed by the county court. It means an adjustment to a line, or the state of being so adjusted. Or, as defined in Chester v. Leonard, 68 Conn. 507, it ‘ ‘ signifies not only the act of adjusting to a line but the state of being so adjusted, and in terms of engineering is used to denote the ground plan of a road or other work as distinguished from its profile”. The profile of a road is a drawing showing its
But it is contended on behalf of the county court that the decision in this case is controlled by White v. County Court of Mercer County, 76 W. Va. 727. While there is some similarity in the facts involved in the two cases, they are nevertheless so materially different that neither controls the other. In the Mercer county ease there were two bond issues. The roads to be improved were not described with precision except by termini. The intermediate points or stations were disclosed only by indirect reference to roads theretofore relocated' and established and let to contract for completion in accordance with plans provided therefor. There was no manifest limitation upon the authority to make changes and alterations in the roads to correct alignment and grades as they existed at the time of the election.
Electoral decision and determination upon important and pertinent questions naturally arising upon a proposition to create a public debt, not within the scope of the powers conferred by chapter 43 of the Code, prescribes a limitation or boundary beyond which the levying body can not proceed, except where precision is lacking as to the roads to be improved, as in Brown v. County Court, 90 S. E. 166; or as illustrated in Lawson v. County Court of Kanawha County,
So strict and rigorous has been the interpretation of applications for the establishment or alteration of roads or streets that a departure of a few feet from the terminus designated in the petition will constitute a sufficient cause for refusing to adopt the location prayed for. In re Union Township Road, 29 Pa. Super. Ct. 179, held invalid a departure of 142 feet; in Shinkle v. Commissioners, 58 Ill. 422, the “difference though slight” avoided the entire proceedings establishing the road. In Deer v. Commissioners, 109 Ill. 379, it was said that while by statute defendants had authority to make changes along the course of the route they had no authority to change the termini. See also State v. Barnett, 14 N. J. L. 385. In Flanders v. Colebrook, 51 N. H. 300, a change establishing a terminus one hundred rods from the point named in the petition rendered the proceedings invalid. By a special statutory enactment was conferred upon Marion County, Tennessee, the power to issue bonds to improve eight public roads of the county. The commissioners entrusted with the work, after expending part of the fund raised, found the
For the reasons assigned, we sustain the motion to reverse, and reverse the decree dissolving the injunction and perpetuate it in the form, to the extent and for the purpose prayed in the bill.
Decree reversed, and injunction reinstated and perpetuated.