Bouchelle v. State Highway Commission

• Decision Date: 19 June 1924
• Docket Number: 3 Div. 674.
• Citation: 211 Ala. 474,100 So. 884
• Parties: BOUCHELLE ET AL. v. STATE HIGHWAY COMMISSION ET AL.
• Court: Alabama Supreme Court

100 So. 884

211 Ala. 474

BOUCHELLE ET AL. v. STATE HIGHWAY COMMISSION ET AL.

3 Div. 674.

Supreme Court of Alabama

June 19, 1924

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Bill in equity by Henry T. Bouchelle and others against the State Highway Commission and the members thereof, to enjoin the construction of a public highway. From a decree dissolving temporary injunction, complainants appeal. Affirmed.

Horace C. Wilkinson, and W. B. Harrison, both of Birmingham, for appellants.

Harwell G. Davis, Atty. Gen., James J. Mayfield, of Montgomery, R. B Evins, of Birmingham, Hugh Mallory, of Selma, and J. F Aldridge and Emmett F. Hildreth, both of Eutaw, for appellees.

SAYRE J.

Appellants citizens, and taxpayers of Greene and Sumter counties, seek by their bill in this cause to enjoin the state highway commission and the members thereof from constructing or entering into any contract for the construction of a highway known as the Greene county project No. S-4, and referred to in the bill as the Gainesville detour. The proposed highway will pass through Greene county from Gainesville on the eastern margin of Sumter via Mt. Hebron and Clinton to Eutaw in Greene. Appellants disclaim any purpose to have the court prescribe the route of the proposed highway, but the commission, in locating and providing for the construction of the Greene county project, is acting under the obligation and authority of the statute (Acts 1923, p. 370 et seq., § 21), which requires that "the state highway commission or highway department shall locate, construct and maintain highways and state trunk roads so as to connect each county seat with the county seat of the adjoining county by the most direct and most feasible route by a permanent road, having due regard to the public welfare and to connect the county seats of the several border counties at or near the state line with a public road in the border states," is proceeding to construct a highway, or part of a highway, which will connect Livingston in Sumter with Eutaw in Greene, and appellants, by way off showing that the route proposed is not such as the commission is required to locate, allege that a highway from Livingston to Eutaw via Epes and Boligee would so obviously better meet the requirements of the statute that its location as proposed by the commission must be adjudged a gross abuse of the discretion lodged in the commission by law, and moreover they allege that one member of the commission is interested in the proposed location by reason of the fact that he owns a large body of land in Sumter county near the proposed route, the value of which will be greatly increased by such location, that another member owns much land in Perry county the value of which will be increased by a similar indefensible detour, and that the action of the commission in each case has been determined by an agreement between them, constituting a majority of the commission, that each, in consideration of the vote of the other, would support the two alleged detours, thus, in effect, charging that the so-called detour under consideration was located as the result of a fraud upon the law, though the pleader refrains from drawing the appropriate conclusion-leaves that for the court. This, we believe, is a fair statement of the bill in outline.

But, before coming to the facts affecting the location of the proposed Greene county project, it will be proper to consider appellants' contention that the commission as now constituted and as constituted at the time of the location of the highway in question had no authority of law for the location or construction of any highway whatever. This contention is based upon the following constitutional and legislative history: The Legislature, by its act approved September 30, 1919 (Acts 1919, p. 890 et seq.), created a state highway department to consist of a state highway commission and a state highway engineer, the state highway commission to consist of the senior professor of civil engineering in the Alabama Polytechnic Institute, the state geologist, and ten other members to be appointed by the Governor. In general terms it may be stated that the state highway commission thus constituted was required to locate, construct, and maintain the highways or state trunk road "so as to connect each county seat with the county seat of the adjoining county by the most direct or most feasible route by a permanent road, having due regard to the public welfare." By the act of October 29, 1921 (Acts Sp. Sess. p. 35), the Legislature submitted to the people of the state an amendment to the Constitution authorizing the state to locate, construct, improve, repair, and maintain public roads, highways, and bridges, and to that end the issue and sale of negotiable interest-bearing bonds. The amendment so proposed-and adopted-contained, inter alia, this provision:

"The state highway commission or highway department shall locate, construct, and maintain highways and state trunk roads so as to connect each county seat with the county seat of the adjoining county by the most direct or most feasible route by a permanent road, having due regard to the public welfare."

And this:

"It shall be the duty of said highway commission or highway department to equitably apportion among the several counties the expenditure of both money and labor and the time or times of making such investments," etc.

On October 31, 1921 (Acts Sp. Sess. p. 54) the Legislature passed an act creating a state highway department for the state of Alabama to be constituted as was the highway department created by the act of September 30, 1919, the state highway commission having the power, in broad terms, to "consider and determine all questions relating to the general policy of the state highway department and the conduct of its work and in the performance of its duties" (section 2), and this act was in full force and effect when the constitutional amendment was adopted.

The contention in the brief for appellants is that the adoption of the constitutional amendment had effect to make the state highway commission or highway department as then constituted a constitutional body wholly beyond the reach or power of the Legislature and, hence, that the act of September 24, 1923 (Acts, p. 370), entitled, "An act to amend an act approved October 31, 1921, entitled an act to provide further for the construction, repair, and maintenance of the public roads, bridges and highways in this state," is unconstitutional and void, since it undertakes to replace the commission consisting of the senior professor of civil engineering in the Alabama Polytechnic institute, the state geologist, and ten other members, by a state highway department consisting of a state highway commission of three members.

We cannot assent to the proposition that by the adoption of this amendment the state highway commission as then constituted became a constitutional body, above and beyond the power of the Legislature to change. The amendment very clearly contemplates that the expenditure of the $25,000,000, authorized thereby, shall, when and to the extent authorized by the Legislature, be made under direction of a state highway commission, and refers to the highway commission then in existence; but we are far from believing that every detail of the act creating the commission thereby became in every detail crystallized and embedded in the Constitution. It is, of course, true that every part, even every word, of the Constitution must be given effect where possible, and it is equally true that the Constitution-

"must be read and interpreted, in the light of the laws and systems existing at its formation, which are not destroyed, but preserved, so far as not repugnant to or inconsistent with its provisions." Winter v. Sayre, 118 Ala. 1, 24 So. 89.

But narrow or literal constructions are not indulged except in favor of elemental rights or settled principles of republican government. Here no such rights or principles are involved. The Legislature has simply decreed that a commission of three members can better execute the purposes of the amendment than a commission of twelve. It is not for the court to question the wisdom of that decree or to undertake a limitation upon the legislative power, which, according to an unbroken line of decisions, is supreme, in the absence of express inhibition. Ex parte Lambert, 52 Ala. 79. The whole argument for appellants' contention on this point rests upon the fact that the amendment uses the definite article when referring to "the commission," meaning thereby, as the argument runs, the commission in every, the smallest particular, as organized at the time of the adoption of the amendment. We might concede that the duty rests upon the Legislature to maintain a competent commission as long, at least, as any part of the $25,000,000 fund shall remain to be expended by legislative authority, but the argument for anything more rests upon too narrow a basis. Our judgment is that the number of highway commissioners is not expressly-nor by necessary inference, if that may sometimes be the equivalent of express provision-regulated by the amendment and remains, therefore, within the discretion of the Legislature. Ex parte Lambert, supra. The reference to "the commission" no more makes the then existing number of commissioners a matter of constitutional determination than it confers constitutional perpetuity upon the office of state geologist, the senior professorship of civil engineering at the Polytechnic Institute, or the several county officers mentioned in the article on impeachments, for whom no constitutional tenure has ever been suggested. The emphasis placed upon the definite article is meticulous-carries no...