Meek v. Humphreys County

97 So. 574 | Miss. | 1923

Anderson, J.,

delivered the opinion of the court.

Appellants G-. W. Meek and others, taxpayers of Hum-phreys county, and also interested as part of the traveling public in the Belzoni-Isola public highway, filed their bill in the chancery court of said county against the appellee, the board of supervisors of Humphreys county, for the purpose of enjoining the latter from proceeding further under sections 4400 to 4402, inclusive, Code of 1906 (Hemingway’s Code, sections 7080.to 7082, inclusive), to alter or change the said public highway so as to make the same enter the corporate limits of the city of Belzoni at the northern terminus of Hayden street, instead of the northern terminus of Chui’ch street, two of the streets of said city. Upon the filing of said bill a fiat was granted for a temporary injunction in accordance with the prayer of said bill, which injunction was issued and served upon the appellee.

The grounds for relief set up in appellants’ hill were that the board of supervisors had prejudged the questions Avhich would arise in the consideration by it of the proceedings to alter or change said public highway, and that said proceedings to' alter or change said public highway were unj.ust, oppressive, and fraudulent. The cause was heard on original bill, answer, motion to dissolve the injunction, and proof. A final decree was rendered, dismissing the appellants’ bill, from which they prosecute this appeal.

Although the question was not raised by the pleadings it is argued before this court on behalf of appellants that sections 4400 to 4402, inclusive, Code of 1906 (Hemingway’s Code, sections 7080 to 7082, inclusive), are violative of section 17 of the Constitution, in that' said statute authorizes the alteration or change of a public highway from one location to another without making provision for any damages which abutting property owners on the highway so abandoned might suffer by such change (to which damages they are entitled, as held in Morris v. Covington County, 118 Miss. 875, 80 So. 337); and for the further reason that said statute is violative of the due process clause of the Constitution, because it provides no notice and hearing for the abutting property owners on the highway so abandoned.

At the time the bill in this cause was filed, and the injunction issued and served, the proceedings under said statute had only progressed to the point of the petition for the alteration or change in said highway, provided for by the first section thereof being filed with the board of supervisors. No action had been taken thereon; the time for its hearing and consideration had not arrived.

It is argued on behalf of the board of supervisors that appellants are not in a position to raise the question of the constitutionality of said statute, because no action bad been taken by tbe board thereunder, affecting in any manner whatever tbe lights of appellants, either as taxpayers of said county or as a part of tbe traveling public therein, and there was no certainty that any such action would be taken as the result of the consideration by the board of such petition.

The courts will not decide the question of the constitutionality of a statute, unless there is no escape therefrom. It is useless to cite authorities to that effect. It is a universal principle of constitutional law in this country. Therefore, conceding said statute to be unconstitutional, still, if the judgment of the court complained of can be justified upon any other ground whatever than the authority of said statute, then its constitutionality will not be passed upon. The application of that principle, we think, makes the question here involved easily solvable. The board of supervisors had made no order for the alteration or change of the highway in question. The petition had not been heard., Under the statute when heard it was a matter of sound discretion after due consideration by the board whether it should be granted. In other words, simply the first step in the proceedings under this statute had taken place, which in no wise directly or indirectly affected the rights of appellants, nor was there any warrant for the position that any action would be taken affecting their rights. The whole proceedings might have resulted in a dismissal by the board upon the ground that the contemplated alteration or change in the highway should not be made. And furthermore the board of supervisors had the power, and it was their duty,, if in their judgment said statute was beyond question unconstitutional, to so hold and dismiss said proceedings on that ground without cost or expense of any kind, either to the appellants or the taxpayers of the county at large. This is an analogous question to that involved in Neville v. Adams County, 123 Miss. 413, 86 So. 261. In fact the present case is ruled by that case as it appears to us. It was held in that case, and we bold in this, that tbe bill fon injunction was prematurely filed because no one was injured by the proceedings in question, and there was no certainty that any one would be.

On tbe issues upon which tbis case was tried out in tbe court below, viz. whether the members of the board of supervisors of Humphreys county had prejudged the said cause pending before it to-alter or change the said highway, and was proceeding in an unjust, oppressive, and fraudulent manner so to do, we find that there was ample testimony to sustain the findings in favor of appellee. In other words, there was a finding of facts by the chancellor on the issues of fact in the cause, and ample testimony to sustain that finding. Under numerous cases decided by this court such findings of the chancellor will not be disturbed.

Affirmed-