Gaston v. State Highway Dept. of South Carolina

• Decision Date: 14 April 1926
• Docket Number: 11957.
• Parties: GASTON et al. v. STATE HIGHWAY DEPARTMENT OF SOUTH CAROLINA.
• Court: South Carolina Supreme Court

132 S.E. 680

134 S.C. 402

GASTON et al. v. STATE HIGHWAY DEPARTMENT OF SOUTH CAROLINA.

No. 11957.

Supreme Court of South Carolina

April 14, 1926

Original action by J. W. Gaston and others, suing on behalf of themselves and other citizens, property owners, and taxpayers, against the State Highway Department of South Carolina. Petition dismissed.

Cothran J., dissenting.

Bomar Osborne & Brown, of Spartanburg, for petitioners.

Jno. M Daniel, Atty. Gen., and Nicholls, Wyche & Byrnes, of Spartanburg, for defendant.

STABLER J.

This is an action brought in the original jurisdiction of this court by the petitioners, suing on behalf of themselves and other citizens and taxpayers in like situation along the National Highway, on route 8, in Spartanburg county, against the state highway department of South Carolina, asking that the state highway department be enjoined from constructing and hard-surfacing a certain proposed road connecting the town of Duncan with the city of Spartanburg, which the petitioners allege the defendant is attempting to do in violation of law, and praying for an order to compel the state highway department to hard-surface a certain road known as route 8, or the "lower route," connecting the town of Duncan with the city of Spartanburg, and to keep and maintain it as a part of the highway system of the state, alleging that the law designates said route 8 as the route or way along which such highway should go.

The petition, in substance, alleges: That the state highway department of South Carolina is a body corporate, created and constituted under that name by the acts of the General Assembly and charged with the power and duty of taking over, constructing, hard-surfacing, and maintaining a certain system of public highways throughout South Carolina, subject to the provisions and limitations provided by statute; that on March 21, 1924, the General Assembly passed an act for the purpose of incorporating into a connected system certain described and specified highways in the various counties of the state, and providing for the taking over and maintenance of the said system of roads by the state highway department, and that the act describes and specifies the routes to be so taken over and maintained; that as to Spartanburg county the act specifies and describes the particular roads to be so taken over, constructed, hard-surfaced, maintained, etc., as a part of the said highway system, and among other roads so specified and described is the following named road, in the following language:

"Hard-Surface or Other Dependable Types. *** National Highway from Greenville county line near Greer northeasterly on route No. 8 by way of Duncan, Tucapau, Spartanburg, Dayton, Converse and Cowpens to the Cherokee county line."

That at the time of and before the approval of the act, there existed, and still exists, in Spartanburg county a much-traveled road, in excellent repair, leading from the town of Duncan to the city of Spartanburg, designated as route 8, National Highway, accepted as such by the state highway department, and that this road is the one specified and described in the quoted language and intended by the Legislature to be taken over and maintained by the state highway department as part of the said connected system of highways; that in violation of the act the state highway department proposes to abandon said route 8 as a part of the state highway system and to substitute therefor a new road for travel between the said points, and to designate the substituted road as route 8; that the proposed road would involve the original excavation of a new construction of several miles of entirely new road through rough territory, requiring the erection of culverts and bridges, and involving the expenditure of $200,000 or more to even grade the proposed road, which would be a useless, reckless, and an extravagant expenditure of the public funds without adequate recompense to the taxpayers and the traveling public; that the existing route 8 passes through fertile and well-settled communities, and that the petitioners and many others in like situation, being landowners and taxpayers along or near said route, or in the large territory served thereby, are vitally interested in its continued recognition and maintenance as a part of the permanent system of connected highways as contemplated by the act and in its being hard-surfaced as required therein, and are vitally interested in the matter of finances that would be involved in the substitution therefor, between Duncan and Spartanburg, of another and entirely new and different road proposed to be constructed by the state highway department at enormous additional expense to the taxpayers; and that the petitioners and such others in like situation have no adequate remedy at law against the wrongs complained against and will suffer irreparable loss unless this court intervenes through its equitable powers on their behalf.

Upon this verified petition Mr. Justice COTHRAN issued an order, directing the state highway department of South Carolina to appear before the Supreme Court, on the 1st day of February, 1926, to show cause why the prayer of the petition should not be granted and why the defendant should not be permanently enjoined from doing the things complained of.

The defendant appeared and demurred to the petition on two grounds: (1) That the complaint or petition does not state facts sufficient to constitute a cause of action; and (2) that the petitioners have no legal capacity to sue. The defendant also submitted, by way of return and answer, that the highway which the defendant proposes to build and hard-surface between Greer and Spartanburg-which does not follow between Duncan and Spartanburg the road contended for by the petitioners-is the highway described and defined in the statute and is in accord with the intent of the Legislature that the highway desired by the petitioners is not the highway described in the statute, in that it does not follow the control points named, the prescribed direction, or the National Highway; that the defendant is required by the statute to secure federal aid in the construction and hard-surfacing of the road from Greer to Spartanburg, and that the proposed route of the State Highway Department has been approved by the federal authorities as a project to receive federal aid, while the road contended for by the petitioners has been disapproved as such project, and without such aid the defendant cannot secure sufficient funds to construct and hard-surface any road between Greer and Spartanburg; that the failure of the defendant to hard-surface the road contended for by the petitioners does...