82 W. Va. 724 | W. Va. | 1918
In tbe early part of tbe last century tbe National Government entered upon a policy of internal improvements, included in which was a national road extending from a point upon tbe Potomac river, near the town of Cumberland, Maryland, to a point west of tbe Ohio river, in the then territory of Indiana. This road was partially constructed and main-
It will be observed from the history of this highway, as above stated, that it is on a very different basis from the ordinary county road. It was constructed by the National .Government at a considerable expense, its promotors expecting that it would form a great highway or link connecting the peoples in what was then considered the far west, the Territory of Indiana and the State of Ohio, with those living in the more enlightened eastern states. After its construction settlements were established and grew into considerable towns along almost its entire length, and the subsequent prosperity enjoyed by these thriving commercial cities testifies to the wisdom of the promotors of the project. When the .■National Government, however, abandoned the policy of in'ternal improvements the state of Virginia, so far as the road •lay therein, took upon itself the burden of maintaining it, .with the right to the National Government to use the same ..free of any tolls for such use, and this obligation upon the .formation of the state of West Virginia devolved upon and iwas assumed by that state, until the board of county commissioners of Ohio county, in the year 1891, took upon itself the 'burden of performing this obligation. There can be no doubt ■ that this was within the power of said board. This board :by- thi's1 act received a valuable piece of highway over which .it .had theretofore no jurisdiction. The assumption of the ,'Obligation to maintain the'road, in consideration of this transfer to’-it, "was a'perfectly legitimate' governmental function, and one which it cannot now avoid. The fact that' the part .of this roád which it is complained is out of repair lies with
The one remaining question is the propriety of the remedy
It follows from what we have said that the demurrer to the alternative writ of mandamus was properly overruled, and we answer the question certified accordingly.
Affirmed.