State Highway Commission v. McGowen Ex Rel. Hinds County, 23 So. 2d 893

At McGowen, District v. County. ex rel. torney, Hinds (In Suggestion Banc. of Error Overruled Jan. Nov. 1945. 1946.) (2d) No. 35935.] [23 So. 893. Kendall, James T. Rice, Attorney General, by L.

Greek & E. R. Green Green Attorney General, Assistant Loving, Jr., Point, B. H. Holmes, West Jackson, Wright, Meridian, appellant. Russell Avery, Eager all Jackson, Watkins Watkins & & appellee. Attorney Rice, Kendall, Greek L. T. General, James Holmes, Jr., Green & Green E. R. Jackson, Wright, Loving, B. H. Point, West Russell appellant, suggestion Meridian, on of error. Loving, by orally

Argued Jr., Holmes, B. H. E. R. and by appellee. appellant, Watkins, W. H. for for and opinion Sr., J., the of the court. Smith, delivered L. A. attorney, pursuant board an order of the The district county, County, supervisors said for the use of Hinds of of Highway against petition the mandamus State a for filed tried thereof, which was court circuit in the jury, of a judge intervention without county, Judgment far for the was waived. was Highway Commis- appraisement concerned, and was appealed. sion primarily pleading, dealt case but was much There 1930, Section 5004, Code of Section construction with the meaning of “final location” and the 1942, 8036, Code appellee contended The statute. said in through Highway County location Hinds was Highway final in the sense of the and statute, Com- mission insisted final; it was not and the same contentions Highway edge were made as to 80’from the eastern County Clinton to the Warren line. This issne involves question also the of whether demand had made or necessary supervisors to be made the board of on Highway Commission. It also necessitates deter- question upon mination of the whether we are called decide a factual issue or to review the discretion of the prayer petition Commission. The was that mandamus Commission be compelled appraise and reimburse Hinds paving highways. the value of the on said purpose Chapter Act, of the Stansel 47 of the Laws was to create new 1930, Commission for the purpose establishing maintaining complete highway system Mississippi, coordinated in and con- necting help with in other states so as to form highways. National The Commission thus created con- ample powers, of three with members, sisted whereas eight superseded by members, the old Commission only powers 1930, Act of had no and its functions of intermediary an were as value between Federal Gov- supervisors, Bureau of and the ernment Hoads boards of advisory supervisors as to boards of status letting locating roads and contracts for the construction respective arrangement counties. an of roads obviously Such organization, was a cumbersome limited eighty-two different authoritative with bodies in that counties the state. This number of was because Sec- juris- conferred tion Constitution exclusive bridges roads, diction over ferries boards regu- supervisors, be exercised in accordance with such might legislature provide. attempting the lations as In highway system Mississippi, legislature in a unified the Chapter passed Laws of which 173, 1914, was held viola- provision of the Constitution in at- tive that it of 862

tempted ju- provide practically a method which all supervisors risdiction the of boards of roads, over ferries bridges and would be withdrawn from such boards vested in a road commission. v. Collector, Tax Havens, Hawes et 128 91 ah, 650, Miss. So. 397.

By Chapter 143, au- 1924, after an election Laws thorizing such action, the Constitution amended provide power designate that the have the highways high- place certain as state such ways supervision High- under control and way Commission construction and maintenance. legislation authority, Pursuant to thereafter deal- ing subject may Chapter with the in be found 278,Laws by Chapter 1924, as amended 218, Laws of 1926',and sub- sequent finally Chapter merging amendments, into chapter 1930, Laws 5004 was Section part, being same now Section 8036,Code of in which legislation governing designated Code the is Title subject Highways. pertinent and with statute, Number reads as follows, so far same mate- is rial to the of this case: “Whenever in the consideration high- program due course of construction state way any paved be commission time reached when shall highway or heretofore or section thereof built in whole expense part regularly would have local con- part program, structed as a of such connection highway paved and same made with such becomes part paved highway, high- state of a continuous the state 'way appraised pave- commission shall cause to highway, portion portions ment on or the said thereof part final that it to be utilized as location completed the continuous con- so appraisal into nected. Such shall take consideration original pavement depre- of such wear, cost same, ciation and deterioration of the state expense pay local commission to the at whose shall unit proportionate the road was constructed the contrib- represented paid by said local unit then uted or

863 appraised existing payment may value. Such he made may agreed upon govern- under with the such terms he ing body unit, such local in no case shall reimburse- but twenty ment be made in than more less ten nor than equal payments. high- approximately annual In the event way county outstanding, of such district bonds are may pay semi-annually to local unit commission such principal payment and in- sum sufficient meet to outstanding subject due terest the above bonds, on due the total ascertained to be shall limitation, until sum surplus paid. any annual remain, have been payments Should then amounting be made inore in sums to not shall be ascertained than total amount first one-tenth amount, than such due and not less one twentieth of until paid. In- to be have the total found due sum shall portion unpaid be found of the amount on the terest pay- in the annual included due the local unit shall be ’’ ments. say necessary feel it that in our outset, At we Highway adopted judgment Com- resolution instituted, had been after this mission suit some weeks question many years had been in com- after the years majority pleted, oí after a of the board and several Highway supervisors then had called on the appraisal, value has no evidential and asked in session per an exoneration se is ineffectual this case in the be determined that If should Commission. justify the same facts dehors us law and substantially ex- reaching conclusions therein the same joined appellee the find- pressed, issue in denial since by appellant, then ings resolution and law said of fact as in and facts other such law decide on should so we by claim of discretion to the reference "With case. many appellant cites cases Commission, against they authority are believe that do not but we thereto, reference with reached we have conclusions harmony in the case announcement with our which is High- Attorney, v. State District Cowan, ex rel. of State way (2d) et 13 So. al., 657, 614, 195 Miss. quoting from the Madison case of v. Missis sippi Miss. Commission, 198 So. “ ‘If 284, wherein it is said: the statute invoked appellee appellant require the to cause is effectual to appraisement to circuit court vested made, then the power supra, 2348 of with full under section the Code, grant petition by by to relief on state, mandamus the attorney attorney, general, its or a district least to the point appellee compelling to the cause the links highway referred to in the bill of com sections plaint may punish appraised, to also as for con be tempt any obey 2353 refusal to mandate under section its ” 1930.’ the said Code of

In case the made this the Cowan Court statement: wording is will be noted of Section 5004 “It come that, about, when the described conditions ‘the pave- highway appraised shall commission cause be to highway’, pay’ and, ment on said ‘shall therefor. The by crea- word directed as it is shall, highway own creation, commission, ture of its doubtful; is positive and clear; the command is it leaves no discretion the Commission. fairly urged, as an deducible

“It also intendment Legislature from intended statutes, various county bridges paying roads and over without take anything ‘Keim- title to therefor. The Section 5004 already pavement constructed.’ sec- bursement for The prescribes manner and the how detail the limits tion made, reimbursements are and within which the to be including handling outstanding the method bonds The be interest, rate etc. statute would counties, meaning object if the asserted contention without prevail.” should Highway al. v. Trahan Commis

The case of et appellant, cited Miss. 151 So. al., sion et nothing with the in conflict announcement declares judgment. case, in our In the Trahan case, Cowan County many Pike had constructed an old with improperly curves in it and which located, sought undertook relocate, adjacent enjoined by property owners. Pike party question was not and there was no of reimburse- involved, ment and the road had never been connected paved highway, with the or utilized system. part of its The Court therefore held, since the Commis- relocating highways, prop- sion had discretion in and the erty owner had no other interest than such interest persons neighborhood, prop- common to other erty standing object. owner had no in court to In the highways subject case at bar, the concerned are the prayer appraisement and reimbursement for by appellant connected with a state many at both of ends, which had been utilized for years highway system. as a of the state other by appellant authorities cited we think need not be dis- they equally inapplicable cussed as seem to the issue, since we are called on to determine a factual issue and Highway not to review the discretion of the Commission. point County We cannot see merit that Hinds upon Highway made no formal written demand Com- through supervisors. mission its board of The facts with majority reference thereto are that of the board of su- pervisors of in Hinds connection with their at- torney, during time when the board was in session, Highway called at the officeof the Commission at a time appraisement when it in was session, and asked for appear reimbursement. It does not that the record by reply minutes were made either and the board, of the ap- Commission was in effect a denial plication by supervisors the board of since it failed to grant request subsequently when made, and no took steps making appraisement, toward an after then was denying suit filed entered resolution relief sought by county, contesting and is now this lawsuit

866 So far as has been called to our at

seeking same. requiring there in our statute such tention, nothing is supervisors of from the by demand the board that that it should made or Commission, writing, or be of upon be entered of the board it should minutes In support or Commission.- supervisors Secretary cases as Wood, cites such position, appellant 169 Attorney, ex District Gillespie, v. rel. State, State manda 142 is a involving So. 747: which case Miss. attacking the attorney validity district mus filed on the act of a congressional redistricting Congress to the Act of that it did not conform ground dis compelled be Secretary State praying any designations of candi ballots, regard, preparing The de from districts. Congress question dates for Secretary of because the significance mand was not state having duty printing incurred the never State time at the action had not arisen ballots, wide a cause sought. was mandamus Kenna, Mr. the Director testified further was

It on behalf of Commission, executive officer and an by ap be dismissed if should this suit appellant, it appraisement made for would and demand pellee the dominant involved in becomes question refused. before the whether not case, in this issue the relief filed the right mandamus petition become the official had then existed, sought then and reim appraisement make such appellant duty of Robins, v. Anderson had been refused. bursement record 476. It manifest from the So. 604, 137 161 Miss. ap have availed notice would not written formal that .a one to a vain and require do does the law pellee Attorney ex General Davis, rel. formality. State useless parte Ex 291; Ala. 97 So. etc., Judge, Curtis, v. 68; 473, 103 Ala. So. App. Pugsley Shirley, rel. ex 30 A. L. R. 247, 538, Ark. 250 S. W. 158 al., et Sellmeyer, v. v. Board of Exnicios Commissioners rel. ex 1212; State al. 705, 539; Nolan, La. 96 So. et 153 Orleans, New Port 867 v. Boston 236 128 Fund, 420, Firemen’s Relief Mass. Sovereign Camp, N. E. v. 176 715; W., W. O. McClure, Miss. So. and others. 536, 611, 293, 168 170 So. controversy being public

This between bodies, two supervisors State and the board of County, though of Hinds should even be held ordinarily required, formal written is demand is not sub ject duty public to such rule is here because of a affecting large. public nature no at In such a case, necessary lay demand and refusal of the demand are petition by the foundation the relief asked Attorney People, ex v. Busch, mandamus. rel. State’s Judge, et Ill. N. E. the' Green, al., 52, 281 117 764. In supra, v. where Curtis, case of held the Court aggrieved personal person claims the benefit of duty, sought, performance act whose demand and re necessary precedent a fusal are held to be condition sought duty to the relief where the mandamus, but strictly public no a there nature, enforced is necessity being no refusal, for a literal demand and there empowered by perform especially demand one law to itself situation, In such later law stands ance. perform lieu a re demand, the omission duty place quired we Therefore, refusal. do complain appellant think can absence Extraordinary High demand here. on formal written Legal 13. Remedies, Par. De 51 at Tennessee state line in starts ending County, Hernando, the Louisiana north at

Soto Osyka. Highway begins south of 80 at line, Vicksburg joins Mississippi bridge Biver near H. S. ending point on the Alabama state line near No. They are Alabama. Code 1942. Cuba, Section primary involved in lawsuit roads. The years' 1926, and 1928 under were constructed being County, let Hinds thereof funds contracts county equally by said Federal Govern- furnished city north of the limits of Jackson ment. County paved the Madison line was with concrete 1927, . as it was south of from Jackson intersection of South Copiah Highway County and 80-to line. Street Following passage Chapter Chap- of Laws 47, 1930, highway 122, ter Code of Title 1942, Code this through integrated a connected, Hinds into paved highway completed from line and the Tennessee according judgment Louisiana line, appellee, trial court and the contention of the trary but con- appellant, to the contention of the who contends there been no final thereof. part has location It seems to be by appellant Highway admitted that the 80 in- finally except volved here has been located for about seven Highway and which the miles, seven tenths Commission says straighten. it intends to paramount question

The case is a factual one judgment, question in our and not as to the discretion Highway Department. The fact to be determined highways or whether not the involved in the due program Highway course of the construction the State have reached the when has time connection paved highway been made with such and has be- same part highway come a aof continuous part the final the continuous, utilized as a completed, paved location of so connected. The trial court petition held that such time had been reached before Highway mandamus was filed, that appraisement, they was due make such had re- fused and failed do. think the trial was cor- to We court opinion highways are rect. We involved and have come within statute some time. so comparatively segment fact infinitesimal straightened, being 51 here there is or re- paved, moved, to one or the other, side is mere detail Commission has as to which discretion, and of this discretion would not be in the exercise conflict with holdings high- must be here. It remembered our that this completed many years ago, way system was and these planned integrated therein as a roads Mississippi. The claim construction in Department these has considered never they finally had in other time or some located because parts probable to that thereof, relocation of mind a they had been Henna, witness their end, as stated accumulating surveys maps mailing data for during though years, even alter the situation does not “depression,” period part was a involved there global incident to funds and the difficulties insufficient Highways paved 80 51 and remains that war. The fact County would have had to over from Hinds taken they by had not the constructed they by county, already and that been constructed said judgment, final is a location our in what, have become public by system completed highway the utilized in the long period com- continuous, as a a of time a for pleted Nothing defi- case. in each looking period done time has been nite in all of this public general the relocation, and substantial toward using highways, mere formation so that the has possible theory by of an inchoate the Commission progressed and has not still nebulous altered locations certainly cogitation, beyond indefinite nuances of probe a than uncertain status attained more not has long period, contemplation. speculative Yet, for into every by practical, purposes, practical visible all Highways and 80 51 location of test, convenient not mean connection, final does final. In has been ‘ ’ ‘ ’ complete, analogous is more Here it forever. changeless. A Persians, Medes and the laws of the

like capped right-of-way with a mere more than by made so travel, here pavement. a course of also It is intervals, from variations, so that occasional statute, length throughout thereof, extensive time, time to purview finality location would not erase pavement once been so has when statute, of this this case. finally completed, evidence shows as the judgment, This view is in our sustained, the case of Wilkinson v. Commission, (2d) Miss. straightening’ 4 So. 298. Details of alterations, along parallel replacing and of with right-of-way, general the same direction, the same merely operations be, as would and stated, of maintenance improvement completed system, within and not temporariness highway, indications of location only expedient but having a definite rela- variations, designated legisla- tion to the routes as in the act of the specific ture and to the location Com- cancelling finality mission, and not once attained under statute and the here. facts, report In Director of the Commission to prior prepared 1944 session, at the in- Mississippi stitution of this suit, it was said that had over highway sys- one hundred million invested dollar in our high price pay pretty temporary tem, locations for paved highways! be, It must concluded is an that this permanency subject indication to details of mainte- change improvement, nance and for rectification and supra. stated testimony, course

In the of the Commis- give sion, to witnesses, definition, its undertook a from viewpoint, their of final location. Kenna Witness said your say “I way, would this: answer this to statement finally fifty years a that road is ever located hun- one you years, predict going happen, dred cannot is what engineering personnel, but to our a final location me present- a a of road is that now for the immediate road predictable adequate future service for the there is “pre- that for the traffic that utilizes road.” The word cryptic, dictable” there no limit its is rather since suggested. prediction reach the future Had into such nearly years ago, beginning a at the been made score highway period this would ade- that involved, present quately public ful- future, serve far prophecy justified it. And, would have fillment of continuing since same utilization then started is still hy filing appellant, adopted after the resolution, by Mr. situation that if suit, cannot alter the factual proven then, Kenna’s by a final location so definition it was application word events in the his the course practical necessary pur- “predictable,” to all it was petition poses mandamus before the for a final for offered this definition was filed. appellant: Monette Witness say location, final “I would a road is on its study you thorough the condi- of all after have made you rendered, the service had decided that tions, public, it be its location for the would on best that it design, safety incorporated as to features latest Craig appel- sight for width and distances.” Witness way: respect “In road lant defined location this my opinion would location final location public, traveling present would best the needs of the serve any public traveling be reason- that could addition ably it predicted would be where the future. That not much concerned We are so would be constructed.” generic attempts of final loca- definitions with such meaning under the its are with tions we concerned purposes 'statute, of the For statute here involved. finally say seems to us sufficient to adequate are construction its route and located when pos-'- normally expanding present traffic, and that expediency justifying subsequent alterations sible pavement would not affect exact location already finality, Section as intended attained 1942. Code ap- relocation, to which incident

When would the place pellant’s defi- under such take referred, witnesses years nearly inter- a score we have Here, nitions? very heavy vening, and still none traffic, with vague cognitations have implemented seem that It would into action. opportunity given passage have them time would this of defini- practical of their the limits action within to take judgment, tious. In our the came within the appraisement statute, and the time for had been reached Highway long before this -suit before this action was filed. 51, therefore, was had a instituted, become continu- paved highway point ous from the on Tennessee line the point to the the on Louisiana line above with stated, exception of one or two links short in its northern portion finally temporary which, could reasons, not paved. may displace opera- This availed of not be operate, tion of the statute, because, if allowed so to by any Highway statute could be evaded through single, simple leaving uncompleted of device highway. long a ormile two in a it Therefore, to seems us Highway had become at the time and with- stated, purpose completed, statute, “continuous, paved highway.” state Highway

When 51, in the due course the construc- program, County tion reached Hinds on on the north and necessary proceed through the south, it was Hinds paved highway existing and if the had not been there, then Commission would have been necessity, regular part under program, of its construction paved highway

to build such a from north to through county. building south instead But, its highway through paved county, own when it reached the north south thereof, it connected boundaries boundary High- with construction at the lines way by County, 51, as theretofore constructed Hinds thereby part paved highway made of the continuous, from the Tennessee to the Louisiana lines. It is undis- puted that it then and ever has since been known and recognized part only No. by but all authorities hav- ing subject public large. with deal says

But the Commission that the link used aas so length and for all connection, time, is not to be “utilized as a final location the continu completed paved ous, so connected.” Be says, the future is cause, time in it that some High purpose part of the abandon that Commission to way Hinds and relocate 51 as now located in to City congested portion it so to avoid the as although purposes have conceded Jackson, it is that such yet any point not even determination. reached definite upon supra, question, As we have indicated by a this ease statute turn, must is what is in this meant unchange meaning location.” to be taken as Is it “final to able for all seems come, time as Commission If be contend?1 any would mean there never could so, it thing such and statute would location, a final as any purpose dignity be whatever. without the finite long as the Does it mean final location that there is no so says presently as there Commission, constituted, changed may personnel a with none, which Commission a yet year highway repudiate, year later from statutory was as when connection remains it was may affirmatively, as the made? If this be answered again be never there could contends, Commission then any any thing as a final location, such always speak resolve its character could or it out of such. province statute, within consider

It our legislature, being merely an other act of literary composition. contrary, expansive we On the practicable purpose, ascribe to it some real and must judgment, when and as viewed men sound address- ing practicable a themselves situation. When the being completed, continuous state was doing, so made with and south connection was the north highway, County, link links in Hinds was paved with durable the same character of material that generally using was in its permanent work, and a width sufficient to furnish safe passage upon lanes for in each direction. It laid was out straight upon reasonably grades lines, suitable safe dangerous grading, crossings, and free from and was carry people sufficient to of the state with convenience through principal «points to or of business or social practical judgment interests. think We men of sound say would at the time of the link connection that as it existed suitable to in a become link continuous state come. for a considerable time to judgment, It is, in our therefore, loca- final county tion as meant and the statute, was entitled appraisement prayed. to the for which it reasoning The same conclusion, and consideration and judgment, Highway in our must from obtain to 80' as Clinton to the result Warren line the same reached.

We are “final convinced even that the definitions of location” the witnesses for the “ generically harmony are final in with our views as to specifically wording location” here, under dealing statute involved. with Further, in the dominant question assuming controlling, to issue, we are not or in control, the discretion of the saying, locating highways, relocating but we are merely, already passed, that case, under the facts in this a “final as location” was here a fact. shown argued judgment

Several are our other matters but in unnecessary are to we have reached discuss, since judgment conclusion be the trial should court sustained, and there are reversible errors in no judgment record. Therefore, is affirmed. Affirmed.

Concurring Opinion. opinion concurring, Roberds, J., an result. delivered in opinion, I concur in result reached in the main necessary this whether but think it case is not to decide demand, general public proposition as between aas agencies, necessary prerequisite in- is or not require performance stituting one of them an action to says public duty. opinion In “It of a this case written notice from the record that a formal manifest appellee re- availed law does not would have not citing formality,” quire to do a vain and useless one proposition. sufficient to sustain the That is authorities dispose question case, demand-requirement opinion holding does public my opinion, apply dictum and is, not bodies unnecessary. Opinion.

Dissenting dissenting opinion. Sydney Smith, J., 0. delivered paving section of the evidence discloses that the highways connected here involved has been of the two paying assume, and, I will with the other highways, parts but. become continuous have Code under sufficient Section this is not That of mandamus. issuance this writ warrant properly until, when, issue but can writ sections' two decided that these Commission has permanent ultimately be utilized shall highways. hereinabove parts two When the facts the of Highway duty of became the the it set concurred out of whether these two sections to determine Commission n permanent part highways of as a should be utilized the power which highways tó do relocated, be should or the by et al. 1942. Trahan 8023, Code Section is conferred Highway 178. 732, 151 169 Miss. So. al., et v. Comm. State Highway determined to did and Commission the This part Highway of that 51 and section of relocate that judgment Highway or decision With this of 80. section the Highway are without courts the of by right all, if mandamus, writ of interfere to duty courts, power not on the conferred make it is and to Henry, v. ex rel. Commission. on the but 876 S.) (N. Thomas 340; L. R. A. 152, Miss. 40 5 125,

87 So. there and authorities 158 450, 206, v. Miss. So. Price, 171 City 196 Miss. v. 188 So. Harris, of Clarksdale cited; cited. authorities there 647, and additional yet and relocated not Commission has highways, sections the two reconstructed these given by being not has that it it therefor reasons could supplied which it with funds public purpose to the detriment without utilize for that program, and, construction interest II, War the duration World that for addition, compelled practically to it all, known to reasons resume construc- been able cease and had not equivalent to effect, decision, is said tion. This rights appellee are con- insofar as decision, re- shall two sectons of the cerned, these permanent parts which The reasons thereof. main as certainly are influenced the I do doubted, which and if their soundness is frivolous, disregard right this is without not, Court judgment own and substitute its of the Commission Covington, 260; Miss. 12 So. v. therefor. Shotwell “Mandamus,” Sec. 73. 34 Am. Jur. govern which this here

The rule which should Section thus stated in heretofore observed is Court has High’s Extraordinary Legal (3rd Ed.), Remedies: important principle observed in be “But most jurisdiction and one which mandamus, exercise of the system very rules the entire foundation of at the lies extraordinary regulating principles use remedy, between duties distinction which Axes the is that mandatory peremptory nature, those or aof discretionary involving the exer- character, in their are degree judgment the officer on the of some cise sought. against This body whom mandamus key may extended said to be distinction system precedents forming law of man- rules applications extra- for this few of cases damus, ordinary remedy subjected which are occur not to the general principle test this rule. is terms, of Stated compel performance that mandamus will lie purely duties clear nature, ministerial in their so specific and performance, their that no element discretion left in is necessarily to all acts

but duties calling judgment exercise discretion on the body perform- of the officer their whose hands required, application ance lie. is mandamus will not The of the rule is universal and illustrations are multi- extraordinary applications are form as aid this remedy.” See also Section 42. paramount question

“The in this case is factual one” (so controlling opinion), question stated in the and the to be determined whether fact is the conditions have been met, which, under Section Code entitle 1942, appellee payment paving for the two sections question. of these here in circuit court equipped investigation not for the and decision of this disputed question judge either the trial with- fact, jury jury, (the jury), aout or with a ab- agreement contrary, questions sence of an to the of fact be submitted. Section Code It in- must 1942. permit conceivable to me that the complicated question would this fact, the correct decision of which importance public, is of so much to the to withdrawn designated by from the officers it to make the decision and judge be submitted to the circuit court either with jury, rightfully or without cannot be done expressly permitting. the absence of a statute so High- record does Moreover, this disclose that way unduly delayed relocating has these highways, appear sections of for it does not therefrom they parts paved highways. when became of continuous appellee’s All is claimed in the brief relative thereto ' they brought. is that were such when this action was to the section of As '80 Com- only claim is mission’s it intends relocate some- Consequently, unless thing miles thereof. over seven appellee would the reason, for another barred-therefrom directing appraisement the a entitled to writ have been highway, below had the court the remainder description more seven furnished with of this been be to relocated. miles judgment the below be court should reversed petition dismissed. the opinion. dissenting

McGehee-, this J., concurs in Dissenting Opinion. opinion. dissenting

McGehee, J., delivered a dissenting the forth in the addition to views set In opinion judg- I Juanea think that the the Chiee appealed for the from be reversed should ment here extraordinary writ of mandamus further reason that the doing require useless the of a should never be issued to public thing expense. at only judgment requires court

While the of the trial appraise shall value that the the Commission the in Hinds involved links alleged have at constructed herein and which are to expense $451,890.80, was also asked local court petition re- in for the that the writ ap- pay highway, quired the said links at their for filing praised value of the date of the suit, county purpose seeking have obvious in proceed judgment affirmed then to ask court pay highways compel Commission to question. appraisal could useful Otherwise serve no purpose, require and, therefore, an court should not expense appraisal public at to a to be made obedience mandamus. writ of requiring

Moreover, court as a basis the said appraised anticipate to be links of should not legislature might perchance that the some future time necessary ap- make available the funds with which praised paid. value thereof' could be If, on the other already hand, has the funds specially enjoins upon available and the law the Com- duty sought mission the to do that which here to be compelled necessary requisite to the issuance of a —a any prece- writ of mandamus in case—and without being dent action taken hereafter premises, then the trial court should have rendered judgment requiring appraisal both an payment appraised prayed

and the of thereof, value as by county, by for the if the facts were deemed the court to be such as to warrant the issuance of the man- writ of any purpose. for damus appealed judgment from herein not as harmless is a may precedent

as seem. It can be it invoked as to re- quire appraisals the Commission to make having paved highway all other counties links of such expense, upon constructed in whole or in at local and petition City a appraisement filed the of Jackson in that behalf an the of

of value North Street and State together High- South which Street, form link of way presently corporate 51 as located from the northern city underpass the limits of the on 80 in may compelled granting South Jackson, as well as the every municipality of similar relief to state, other in the streets of now form link in a continuous highway, question since the statute in is not only allegedly counties local limited to as the units en- relief. titled to such contemplates appraisal

Since the statute both an of payment pavement, and for such links of for reason appraisal purpose could serve no useful unless impossible payment made, is to be it is to forecast either appraisals throughout the enormous cost of the alone undertaking state and the extent to which the will dis- rupt highway work of construction maintenance payment appraised great

or an of such to how extent proposed values retard road will farm-to-market building program, whether the Commission shall use its personnel engineers employ own official or other persons appraising pay do the whether shall it highway gasoline already links for these funds out designated for intended construction maintenance security payment pledged of outstand- for the the sole ing heretofore construction. bonds issued importance of the case now Therefore, because of legisla- well as from a that the us, before conviction many years particular section ture has treated wholly involved as a obsolete or the Act of 1930 here 'desig- specifically failed dead-letter law in that has funds for use nate provisions,

carrying hand, has, on other out its continually other ear-mark the funds for undertaken to making purposes available when them and different my impelled to set forth I feel reasons Commission, opinion controlling concurring Court in the for not this case. 1930, intention of the It was no doubt Chapter of that session when it enacted Laws (now Code Section 5004, Code Section 1942), con- whenever course that program that a link be reached the time should struction expense highway paved would local at constructed of by regularly Com- constructed have been high- paved such is made with and “connection mission paved part way of a continuous state becomes a same and part highway” the final loca- as a of “utilized and to be highway completed paved state so tion of the continuous ap- cause be should to commission the said connected,” highway pavement praised had been which on such expense, part local at or in in whole constructed part proportionate con- pay the local unit to should according by of same for the it cost tributed taking existing appraised considera- into value,” “then original pavement tion “the wear, cost of snch and the depreciation same,” and deterioration of the but this manifestly upon anticipated intention based is- an highway purpose suance of construction bonds for such contemplated program, as a of construction any thought not with that said could bind the succeeding gasoline state administrations taxes to use day defray- or tax for license either revenues this late yet ing appraisals paying the cost of made or for highway the value of such as time of the links of of the filing by au- of suits the local units behalf—an attempted thorization not to be made in the statute even enacted. directly succeeding legislature has either no Moreover, indirectly any or manifested intention whatever paid appraised such of be or for out links should curjent negatived they of revenues. In have such fact by portion gasoline pledging a col- intention funds by high- payment lected way the state to the of $60,000,000 proceeds which construction bond entire issue, the by long expended, entirely allo- have since gasoline cating remainder of funds such allocated to the counties counties, which so funds being paying issued have been and are used in off bonds constructing units for links local ‘‘ ’ ’ parts of con- with connection was-made highways, purposes. paved for tinuous other any degree with assurance that Nor can said obligated any legislature subsequent carry felt has provisions setting aside of this statute out the any part proceeds road bonds construction purpose. 1936 that funds was not until It Highway were made available to the highways either bonds issues from the construction assuming* the local that reimbursement to otherwise, highways already be deemed built tois units for Chapter meaning 182, Laws “construction” within the high- authorizing $23,000,000 the issuance of 882

way Chapter 1938, of 130, construction Laws bonds, authorizing of $60,000,000' such bonds out the issuance proceeds be taken of the of which first issue to up paid, authorized and which were said bond issues pro- designed to in order “match” federal aid funds to employment construction vide in future work. proceeds of said have been rate, At bond issues gasoline expended to and the revenues be derived from security irrevocably pledged as the sole have been taxes payment as of the bond issue $60,000,000 for the said a three one decision hereinbefore stated. The Court in to Bank Morton v. Bond in the case of Commission constitutionality Chap- (Miss.), upheld the 507, 199 So. authorizing ter funding Laws the issuance re- maturing with to take bonds care payments due said bond $60,000,000' on the semi-annual to, as to enable the issue, and so gasoline construction for future use current taxes although pledged funds and security were maintenance, said held bond holders aforesaid. This was to violation of the State Con- to be Section obligation against impairment of a stitution evidently upon theory that there would contract, gasoline current funds with which remain sufficient installments on care of the future semi-annual take original should due. issue when same become bond necessary it has become that other refund- Nevertheless, pursuant ing bé acts of the issued similar bonds should passed purpose. subsequently It is security inquire pertinent whether this in favor how impaired by original is to further bondholders appraise compelling pay links at local ex- all constructed complete depletion probable pense of such and to necessarily It will follow as an revenues. inci- current appealed judgment affirmance of here to the dent county every municipalities other and the sim- from that ilarly ap- situated would be entitled to demand an such praisal payment. and legislature

It is to be conceded that the has been aware through period many years, of the at all times, fact a Commission has not undertaken appraise pay single paved either a for mile of the highways expense; which were built at local in order carry for Commission to on the work of needed con- legislature and struction guage maintenance the has lan- unequivocal and clear as that contained in the designated required here statute invoked, and all funds which have been made available to the Com- specially designated to be pur- mission used for other poses sought compelled by proceeding. than to be this question clearly prescribed

The statute in the time at which the of 1930'intended that such an appraisal payment proper should be made in case. express language The time therefor fixed of the being Act as when link the time shall be reached that a expense regularly of road built at local would have been part paved highway program constructed as a of the highway and “connection is made” part with such as a of a continuous stated on final location, provided paid also it is therein that the same to according appraised its “then taking value,” into depreciation wear, consideration its If deterioration. such time has been reached at all in instant case, county many years it has, contends was reached my ago, opinion, in and, it was never intended that remedy local mandamus until could wait to avail unit itself of the long proceeds after the of the expended construction bonds have been and until it is practicable proposition fairly too late as administer provisions of this all statute as to the local in- units part proceeds if a volved even of said construction purpose upon bonds had once been available for such theory that reimbursement to the local units was contemplated. construction portion now located 51 as instance, For Magnolia through is built from Summit to Pike pavement which was con- vitrified brick and over a expense Nor is now concealed. structed at local appraise of the con- much all feasible to would it be at County along pavement over Harrison the coast crete in constructed, much road bed has now which a wider many localities other such or those links of legislature doubt- various sections of state. the statute was had in mind when enacted less ap- making fixed time therein presumed praisement, have lawmakers are and the not be 1930 could this Section Act known that fairly appraisals at made were unless the administered links made with such time “connection” was the the highway thereon reconstructed and before the road was many instances. question required the under the Act in that

Nor is it as same road built use the continue to Commission should resurfacing expense but same, and without the at local only paved part of a utilized as the same be state that the Act itself location; nor does on final if it is paved require with “con- shall have been the same that “pavement,” types distinguished from other crete” as by regularly the constructed have been would nor that it or material'— same width being requirement with and that it be connected the lo- on its final the utilized as wholly readily is seen will be Therefore, it cation. appraise pay day for impracticable this late among fair would be manner as in such these originally similarly as situated local units the several by legislature. the intended executing no statute not self the is

Moreover, pur- designated apart for such been set have funds plan up Act or pose. scheme set Nor there declaring making appraisals the effect or of such for the by appraisement be made should thereof. Whether

885 organization through its own by persons personnel disclosed. is not or disinterested appraisal by would itself right the Commission Whether ap- upon binding be peal local unit without ap- provided appear. if the does not Nor is it by praisal, cost, made which would entail considerable persons, Commis- other and disinterested disapprove' right reject sion have the would same. appellant, some- is,

The situation contended analogous to Section Constitution what ‘‘Chick- known as rate of interest fund fixes the on the for educational funds Fund” and other trust asaw School responsible, purposes and which which the state is for long requires provision that as said funds constitutional six shall be the interest thereon are held percent per fiscal from and after the close of the annum year shall of said interest distribution and that the May day semi-annually and No- the first on made year. State held in case of of each Court vember Atty. Miss. Auditor, v. Cole, rel. Dist. Barron, ex provision was self constitutional 32 So. 314, that legislative appropriation required executing but petition mandamus and denied enforcement, require against a war- to issue him Auditor though pay itself even the Constitution interest, ran to paid. required be that it urged com heretofore this Court has

But is that it county right least of a to at in favor of the mitted itself high appraisal value of the links made an have by way question, cases of Madison in what is said in Highway County Mississippi 191 Commission, v. State Dist. Cowan, ex rel. 284, 198 So. State 192, Miss. Highway Atty. 657, 195 Miss. al., et v. response (2d) it should In this contention to 13 614. So. supra county [191 case, that in the Madison be observed assuming for that£< was stated 286], 198 it So. 192, Miss. purpose alone, purpose and for that decision, of this 886 enacting Code,

that the section 5004 of supra (a Chapter 1930), section of Laws of intended liability to create a and cause of action favor of a local expense paved highway unit a at whose link or section of had been theretofore constructed so to enable such compel making appraisement, local unit to an of such appropri- is it then clear that the writ of mandamus is ately designed necessary remedy for that to afford the purpose.” opinion The that in by case further stated that appellant “if the statute invoked effectual to is require appraisement appellee to to cause power full made, then the circuit court vested with grant by . . . to relief mandamus . . ”; . ‘‘ plain, adequate, complete remedy that a therefore, right has mandamus law is afforded if a of action granted compel been such on behalf of the local unit to ’’ appraisal. remedy sought to there be invoked mandatory injunction, that of a and it will be seen say the court hold, did not but was careful cause of action had in fact created on behalf of local unit. supra 13 [195 in the Cowan Miss.

However, case, 2d the Court held that what was said in the 619], So. County quoted Madison case therein had the effect appraisal requiring “at an least the Commission,” holding but limited the prescribed by case where the conditions statute shall “have come about.” But now before which was heard in the trial us, case pleadings proof, affirmatively ap- court on and full pears conflict in the evidence that without substantial entirety 7.7 miles County, through which were constructed at Hinds local expense, are not be utilized as the “final lo- completed paved highway of the continuous so cation ” precedent required as a condition to the connected, appraisal payment therefor. might opinion though the be of the Even Court 80’from Clinton the Hinds-Warren

887 Connty Highway the line and 51 from the Madison Copiah County where future line should remain they be so should now and the same located, are that Highway a final to be on the considered com- has the that the location, fact remains Highway courts, and to the Commission, mitted to the not province determining said links the the of whether not of are on a location. such Highway determine'in

It for the Commission to judgment whether and discretion exercise of sound rapidly through traveling public needs capital require growing may city the relocation soon point Highway County line to 51 Madison from Terry town of some south toward the distance Jackson (via eight and its into a four or lane conversion through Municipal Airport so as and Jackson west other traffic at Fondren and to avoid the “bottleneck” Highway difficulties); whether or the 7.7 miles of also through and on final location. 80 Bolton Edwards County Sup’rs v. of Smith the case of Board

In (2d) 685, when the 684, 192 Miss. 5 Hawkins, 330, So. county possessed jurisdiction supervisors over boards bridges now such exercised roads and designated high- Highway over certain Commision upon ways, said “the law confers the Court high- power supervision county supervisors and over the bridges. supervisors ways are much better comparative position to know the needs than the courts bridges they best serve the when of the roads ’’ according public. shown, In case bar it is maps, testimony officials regard already surveys plans under consideration in referred 51 and 80 the 7.7 miles being Coun- and the Hinds-Warren between Clinton ty are not on final location. line, the same of Wilkinson v. State

Also, in case (2d) 299, Miss. 4 So. Commission, the Court Highway Com- et al. v. case Trahan cited mission et 169 al., Miss. So. to the 732, 151 effect that highway fully empowered “the was and is commission highway points to relocate line of a the state between the designated by legislature, thereby the to abandon original the line.” Then further the Court upon stated “we will not further elaborate was there ex what said cept by we that now add com that relocations the eliminating mission in shortening curves and distances- finding and in otherwise a better new line location, the may depart eight from the as much old to twelve miles, long as was done in the now case before us. So as done any good through for reason in the interest of the traffic, authority respect wholly in that at the discretion of ’’ Highway the State Commission. County supra, Highway

In the Wilkinson case, the writing, county Commission demanded, in that re- the graveled highway expense a lease constructed at local from Woodville north to the Adams line, a dis- eighteen tance of miles, use Commission as part county acquiesced of State The 61. in this supervision demand. The link of road was under the part highway the Commission as a of the state for sev- years, enteen when it abandoned eleven It miles thereof. right was held that Commission had the to abandon the same. And the fact that the road there involved was graveled inapplicable one does not render in case at principle quoted. bar the law hereinbefore The de- necessarily cision would have been the same if old paved highway from Jackson to Clinton had there having years involved after been used for thirteen part Highway and after the Commission had con- bridge structed the overhead thereon the end of West Capitol many Street. The fact it had been used for that years as a aof was immaterial, unless and until the Commission should it determine on a to be final location. acquiescence of the in the non-action regard appraising in Commission may explained upon theory question be through years has known expending more all of its own funds in Hinds large counties where links of were built

other expense any at local than in counties other money building said links state; and since expense would at local event be refunded taxpayers, gasoline it would be better that current expended by be under funds expert engineers advice of than authorities. local By opinion prolonging further could other reasons given my opinion, would lead which, to a reversal judgment and there deci- herein, are other court proposition writ sions which would sustain the that the of mandamus not be issued in this case. The case should my judgment, in sides, but, has been well briefed on both reply on behalf brief of the Commission fully appellee, and the answers the contentions logical to is so be unanswerable. But for same as judgment I hereinbefore stated think that reasons appealed proceed- and the from herein should be reversed ing dismissed. dissenting opinion.

Sydney Smith, J.,C. concurs op Suggestion Error. On sug- opinion J., Griffith, delivered the court on gestion of error. argument renews Commission

The judgment court is an intrusion trial the affirmed upon vested in the Commission. What the discretion urging, the dis- however, to be is that seems to exercise shall be allowed now desires cretion which it so as to undo some- discretion, retroactive become pursuance already thing and done discre- done final location, concerns a within far as So tion.

meaning the roads consideration, under statute already

have years, been located, and have been so for being upon ground result as final fact one to be every day. seen a thousand witnesses hour dealing something already with court while done, something continues talk of wished proposed or done.

What was done this case is summarized in our former facts, opinion regards controlling the facts and the meaning which constitute a final location within the the statute under consideration, and we quote here it point up emphasize only, what, and what have we decided in so far this case as its central issue con- [23 cerned 2d 893, 899] So. : “When the continuous being completed, doing, and in so connec- tion was made with the north and south links in Hinds County, paved highway, paved that link awas with the same character of durable material generally using permanent Commission was in its work, passage aof width sufficient to furnish safe lanes for upon reasonably in each direction. straight It was laid out upon grading, grades lines, suitable and safe dangerous crossings, and free from and was sufficient to people carry of the state with convenience to or through principal points of business social interests. practical judgment, say We think men of sound would that at the time of the connection that the link isted was suitable to be and become a link in a’continu- ex- ous for a considerable time to come.” This a far different factual is situation from that dealt County with in Wilkinson v. State Commis- (2d) 750, 191 Miss. 4 So. sion, 298, the Commission argument. again urges now in In that case there had neither a final nor been location facts which would a final as have location, at all befit such we above out- lined. as that think,

It we be, must Commission in its' proceeding in case is attitude this under the insistent holding apprehension that of the trial court and our precluded mak from affirmance, the Commission will he any ing has there other or new when once location, been a final as here under location meant under the statute in of elaboration consideration. went the trouble We nothing original opinion that our in case to indicate this import of purpose intended. have had no such the latter We may now, not as that to intimate the Commission lay' upon it, conferred the exercise of -the discretion supplemental as Com out new or is said the routes, it con-, contemplates under the situation here mission now we call attention to in which connection sideration, yet be seems to held, fact we have never as further that as location, a final that when there assumed, hás if and when case, been in this has thereupon may supplemental location makes new upon county, present as final location back cast (Trahan v. Com the Trahan State was held in 178) 169Miss. So. and Wilkinson mission, 732, 151 previous all. final locations at involve which did cases, not paragraph questions put are be not now two in this we make us, have heretofore been before us, fore suggestion response matter of error that the may be so understood. money argues again it has no that

The Commission appraisement, pay is because this but for the on hand to undisputed shown own facts its from the so far afield finally argument record, audits in this gasoline only are from the taxes available funds only proved by expended 10048, Secton these can be appraisements are not within and that 1942, Code provide language The section does section. of that High- passed portion to the credit of fund of that may expended way construction v. ex rel. Cowan and we held State maintenance, 657, 682, Miss. 13 So. Commission, 195 (2d) under include reimbursement 614, that these terms appraisement es- is an Code Section appraisement in- reimbursement, incident to sential mandamus issue because have eluded. We allowed ap- money for hand the on the, Commission has pur- praisement command that and which at its appraised pose; payment of the does not include order does not the Commission the reason that amount for legislative prospect without aid within have on hand or pay along appraisement with sim- needed to sums money is due other counties. ilar demands of finally as located, which have been counties roads question, act in but whether term is meant appraisement by the will be ascertained debt which will lie at are other one debts, honored only legislature, we are concerned door the courts. shall be at that of Suggestion of error overruled. Smith, J., adhere to ex-

McGeh.ee,J., G. the views opinions pressed rendered them hereinbefore suggestion of error should be sus- and think tained.

Metzger v. Sessions. 12, 1945.)

(In Nov. Banc. (2d) 35937.] 746. No. So. [23

Case Details

Case Name: State Highway Commission v. McGowen Ex Rel. Hinds County

Court Name: Mississippi Supreme Court

Date Published: Nov 26, 1945

Citations: 23 So. 2d 893; 198 Miss. 853; 1945 Miss. LEXIS 261; No. 35935.

Docket Number: No. 35935.

Court Abbreviation: Miss.