Nos. 6673, 6703 | Ga. | Jan 19, 1929
Lead Opinion
The exceptions in this case are to parts of the judgment rendered on the application for an interlocutory injunction. The exceptions here presented arise out of the same case as those decided in State Highway Department v. Marks, 167 Ga. 397 (145 S.E. 866" court="Ga." date_filed="1928-10-09" href="https://app.midpage.ai/document/state-highway-department-v-marks-5587131?utm_source=webapp" opinion_id="5587131">145 S. E. 866). The decision then rendered, as to the issues raised, is the law of the ease, and the issues are there stated.
1. Marks et al. complain that the court erred in refusing to enjoin the “relocation” of the road between Augusta and Waynesboro, and thereby substituting what is called the “Peach Orchard Route” for the “McBean Route.” The act of 1921 (Ga. L. 1921, p. 199) provides “that the said Highway Department in taking over said roads is not bound to the right of way of the road-beds as located on January 1, 1922, but shall have the right to resurvey and relocate said road-bed and right of way, and it shall be the duty of the county or counties in which resurveys and relocations are made to furnish the right of way or the relocation and resurvey free of charge to the.said Highway Department. Provided, that in relocating any road or right of way the State Highway Department shall confer with the ordinary or county commissioners, as the case may be, and give due- consideration to their wishes; but in case of disagreement, the judgment of the State Highway Board shall prevail.” To relocate is the same thing as to locate anew. The power to relocate the road-bed of an existing road does not include the power of establishing a new road, and of abandoning entirely the existing road. The power to resurvey and relocate the road-bed
2. The questions raised in the cross-bill of exceptions are controlled by the ruling in the case of the State Highway Department of Georgia v. Marks, supra.
3. The court erred in not enjoining the State Highway Department as prayed.
Judgment rev&rsed on main bill of exceptions; affirmed on cross-bill.
Dissenting Opinion
dissenting. The decision by the majority in State Highway Department v. Marks, supra, is controlling, but the reasons stated in the dissenting opinion in that ease apply in this ease to the questions here involved, in so far as they were involved and decided in that case. That case did not involve authority of
Was it within the authority of the State Highway Department and its officials, with the aid of the Federal Government, to establish and construct the road called “Peach Orchard Route” connecting the two county-seats in question as a part of the system of State-aid roads and to be designated as a section of Route 21 of that system? This road was so designated and constructed, and, being a road connecting two county-seats, is so located as that it can properly be classed as a link in the system of State-aid roads. The plaintiffs contend that there was no authority to establish and construct it, because the State Highway Department in 1921 established the “McBean Route” as a part of said system, being a different road between the two county-seats in question, which was separate and distinct from and several miles east of the said Peach Orchard Route, except at the termini of the two roads, and after the establishment of the McBean Route the said State Highway Department improved a large portion of such route located within the County of Richmond with Federal and State-aid road funds and has continuously maintained said McBean Route as a part of the system of State-aid roads; that by their said conduct the State Highway Department exhausted its authority in relation to the establishment of a road between the two county-seats in question as a link in the system of State-aid roads, and consequently had no power to substitute the road called the Peach Orchard Route for the road called the McBean Route; and that the officers of the Highway Department in attempting to make the substitution were acting without authority, and consequently were individually about to commit a wrong irreparably injuring the plaintiffs. This entire complaint goes back to the question of authority of the State Highway Department; because if that body'had authority under the law to do the things complained of, the action of the officers would not be wrongful or unofficial. Section 1 of article 4 of the act of 1919 (Acts 1919, p. 242) creates an entire system of State-aid roads for the State as a whole. The roads to be included in the system would
In section 1 of. article 5 of the act of 1919, referring to the powers and duties of the State Highway Department, authority is conferred upon that body “to provide for surveys, maps, specifications, and other things necessary in designating . . State-aid roads.” In provision 3 of section 2 it is declared: “In designating and locating the entire system of State-aid roads, the effort shall be made to serve as large a territory and as many market points as practicable with the said system, due consideration being given to topographic and construction difficulties, and to secure main trunk line routes through the State.” In provision-4 of section 2 it is declared that “The State Highway Engineer shall prepare a report or reports, accompanied by maps, setting forth the general
Omitting reference to mileage in the system of State-aid roads, provision 3 of section 2 of article 5 of the act of 1919, as amended by the act of 1921 (Acts 1921, p. 199), declares as follows: “In designating and locating the entire system of State-aid roads, the effort shall be made to serve as large a territory and as many market points as practicable with the said system, due consideration be
It will be perceived from the foregoing that the duty to “take over” roads under section 2 of the act of 1921 on January 1st, 1922 (the date prescribed for the law to become effective), relates only to “State-aid roads.” This was not authority to “take over” any road that had not become “designated” by the State Highway Department as a part of the system of State-aid roads. It was expressly declared that “no road shall become a part of said system until the same shall be so designated by the State Highway Board by written notice to the county road authorities concerned.” This means officially “designated” by the State Highway Department by written notice to the county road authorities. How may a road be officially “designated” under the law? Boads that can be designated are classified as to location, and are to be located as parts of an entire system of roads traversing the State as a whole for the purpose of accommodating through traffic as well as local traffic, and having in view “topographic and construction difficulties” that would naturally be encountered. Authority was particularly given to the State Highway Department to provide for surveys, maps, specifications, and other things “necessary in designating” roads to become part of the system. Important consequences follow the
The judgment of the trial court did not expressly rule upon the demurrer or the plea to the jurisdiction, though they were considered with all the evidence and the pleadings at the interlocutory hearing for injunction. It was not erroneous to refuse an injunction as relating to establishment and construction of the road called Peach Orchard Boute as a part of the system of State-aid roads. Mr. Justice Beck concurs in the foregoing dissent.
Rehearing
In one of the grounds of the motion for rehearing it is insisted that we overlooked the decision in Jackson v. State Highway Department, 164 Ga. 434 (138 S.E. 847" court="Ga." date_filed="1927-06-30" href="https://app.midpage.ai/document/jackson-v-state-highway-department-5586412?utm_source=webapp" opinion_id="5586412">138 S. E. 847). In that case the authority of the State Highway Board to relocate a State-aid road connecting two county-sites was not involved or decided. The petition in that case did not allege that the road from Greensboro to Sparta had been designated as a State-aid road and notice thereof given to the County of Greene, as required by the act of 1919. The petition alleged that before Route 15 was .undertaken by the State Highway Department, there existed, and still exists, a much traveled road between Greensboro and Sparta, being the original county-site road of said county, and that it was being used as such, maintained, topsoiled, and worked by said department. This was the only allegation in that case which squinted at the fact that the old road between Greensboro and Sparta, which the petition. alleged had been in use for 100 years, had been designated and taken over by the State Highway Department as the interconnecting county-seat road between these two cities. The petition did not allege that the State Highway Department was abandoning or changing a State-aid road which it had designated and over which it had taken jurisdiction. It only alleged that the State Highway Department proposed to abandon this original route from Greensboro to Sparta, and to. substitute therefor a new road between said towns. It further alleged that at one time the State Highway Department and the county authorities decided to use the original route between these towns, but now proposed to go said other route. It further alleged that petitioners were unable to know which route would be adopted, having been misled by promises from said authorities in charge that said original route would be finally adopted and used as a link of State Route 15. The petition did not deny the authority of the Highway Department to locate Route 15. Paragraph 21 of the petition in that case was as follows: “Petitioners allege the adoption of said Siloam White Plains route, with the attendant extra and additional cost it entails, and the longer distance of travel, and the inconvenience and extra cost of travel over the said Eatonton and Milledgeville roads to and from all points within this section and territory, and other facts herein alleged, not only amount to abuse of any discretion vested in said State and
Paragraph 22 was as follows: “Petitioners show that both Si-loam and White Plains are incorporated towns in Greene County, and it is illegal to use State-aid road funds or State money to build roads through said incorporated towns, which is attempted to be done on said Siloam White Plains route; and petitioners allege that the law passed by the General Assembly of said State, and approved April 21st, 1922, undertaking to amend provision 5, sec. 5, article 5, Laws 1919, and amendments thereto, Acts 1921, by providing that said State Highway Board is authorized to construct and maintain State-aid roads in and through towns and cities of not more than 2500 people, as set out in Acts 1922, page 177, is unconstitutional and null and void, in that it violates the provision of the constitution of the State of Georgia as embodied in section 4, article 1, paragraph 1, of the constitution, and section 6391 of Park’s Code.” An amendment to the petition alleged that the Highway Department had abused the discretion resting in it by law, in designating the Siloam and White Plains route; and that said designation of that route was illegal, in that no recognition of the unnecessarily expensive difficulties in laying out said road were considered or recognized, and that said designation was arbitrary, and of such unnecessarily enormous cost to petitioners and taxpayers of the State as to be oppressive and burdensome. The facts upon which the plaintiffs relied to show that the Highway Board was abusing the discretion vested in it by law appear from the opinion in that case. In the brief of counsel for plaintiffs in error, filed in this court in that case, it was said: “Unless the petition shows defendants in error abused their discretion, as alleged in paragraph 21 of plaintiff’s petition and in the amendment to petition, or are proceeding contrary to law in regard to said route as alleged in paragraphs 21 and 22 and said amendment to petition, the petition would not withstand general demurrer. But if either of said propositions are shown by the allegations of the petition,
It is next insisted that this court overlooked the fact that the map which it was contended showed that the road via McBean had been designated as the interconnecting county-seat road between Augusta and Waynesboro was prepared in September, 1921, before the act of 1921 went into effect on January 1, 1922, and consequently there could be no official designation of a road prior to the act giving the State Highway Board authority to do so; and that there is nothing in the record to authorize the conclusion that the State Highway Department had designated the McBean Route officially. The mere fact that the designation of this road is on a map made prior to the time the act of 1921 went into effect does not make illegal a designation of this highway on said map, after said act became effective. Furthermore, the act of 1921 provides “that the said Highway Department shall take over the State-aid roads as above mentioned on or before January 1, 1922.” This necessarily implies that the State Highway Department could proceed in designating these roads under the act of 1919. Furthermore, it appears from the record that the McBean Route had been taken over by the State Highway Department under the act of 1919, and had been maintained for a number of years prior to the attempt of the State Highway Board to relocate it as a State-aid road. If it had not been designated as a State-aid road, the State Highway Board would have been without authority to relocate it. Relocation of a State-aid road necessarily implies that it had been designated and taken over by the State Highway Board in accordance with law. So a majority of the court are of the opinion that the motion for rehearing is without merit.
Rehearing denied.