104 S.E. 191 | S.C. | 1920
July 26, 1920. The opinion of the Court was delivered by Under the authority of an act of the legislature passed in the year 1919, at page 474, the county of Anderson issued bonds for $1,450,000, the proceeds of which are to be used in constructing permanent good roads throughout the county. The act provided for 21 roads and created a highway commission under whose direction the roads were to be constructed. The act, in describing the roads, states: "4. A road from Anderson to Pelzer via Williamston." Section 11. *531
Between Anderson and Williamston there are two roads, one known as "the upper Williamston road," and the other known as "the lower Williamston Road." Both of these roads are public roads. The lower road was formerly considered the principal road between Williamston and Anderson, but some 15 or 20 years ago the "upper road" was improved, and the main through travel shifted from the lower to the upper road. In time of high water, when the upper road was unfit for use, the travel shifted again to the lower road, until the upper road could be repaired. Much testimony was introduced to show that the upper road was known generally as the Williamston Road. This is immaterial here, as the act nowhere calls for the Williamston Road.
The plaintiffs alleged in their complaint that the belief that the upper road was contemplated by the act was a determining force in carrying the election that authorized the bond issue. By the order of Judge Prince this was stricken out of the complaint. It was proper to strike it out inasmuch as the question here is one of statutory construction, and statutes are not construed by a vote of the people under our form of government.
The highway commission decided in favor of the lower road, and this action was brought for injunction.
In their answer the highway commission said that they had had both ways surveyed and an estimate of the cost of construction made; that the lower road gave a better location of the roads for the convenience of the people of the county; that more byroads lead into it; that it was cheaper to construct and cheaper to maintain; that it ran along a ridge and crossed fewer streams and would serve more people than the upper road.
The trial Judge held that the highway commission had no discretion and that the upper road was the road called for *532 by the act. That the road referred to in the act was fixed by the use of the word "route" in the act. His Honor confused the "route of travel" with the route of the road. The statute expressly uses the term "route of the road." The route of travel was shifted from the lower road to the upper road, according to the record, simply because the upper road had been improved. Just as soon as the lower road is improved, this advantage will be gone and the travel will shift back again. It cannot be successfully maintained that the highway commission had no discretion. It is not denied that there were two public roads between Williamston and Anderson. Some one must decide which road should be improved. The act was absolutely silent on the subject. The decision must be made either by the highway commission or by the Court, and, unless there was an abuse of discretion by the highway commission, the Court cannot interfere. The record clearly shows that the lower road is cheaper of construction, cheaper to maintain, and will serve more people in Anderson county, and will make a better distribution of these improved highways. There is no abuse of discretion, and the Court cannot interfere.
2. It is said, however, that the lower road does not comply with the act, in that the act requires Road No. 4 to terminate in the city of Anderson, and that the lower road terminates at the house of S.A. McCown on Road No. 5, about a mile from Anderson. There is no more reason to say that Road No. 4 terminates at Road No. 5 than to say that Road No. 5 terminates at Road No 4. The minutes of the highway commission were introduced to show that Road No. 4 terminated at Road No. 5. This was a mere matter of bookkeeping and subcontracts. This short piece was to be used jointly by both roads and was as much a part of one road as the other. The Columbia Greenville and the Columbia Spartanburg Railroads do not terminate at Alston, although they use the same roadbed *533 between Alston and Columbia. The highway cases from this State referred to by the respondent are not authority here, for the reason that, in order for a road to be considered a public highway, it must extend from one public place to another public place, and permit public use all the way. As soon as there is an obstruction, then communication is cut off, and the public character of its use is destroyed. There is nothing to even delay a traveler in going from Williamston to Anderson when he reaches the junction of these two roads.
The order of injunction is reversed.
MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES WATTS and GAGE concur.
MR. JUSTICE HYDRICK. I concur in the opinion of the Circuit Court for the reasons therein stated.
