Ladner v. Road Protection Commission

Decision Date16 April 1928
Docket Number27089
Citation116 So. 602,150 Miss. 416
CourtMississippi Supreme Court
PartiesLADNER v. ROAD PROTECTION COMMISSION et al. [*]

Division B

APPEAL from chancery court of Hancock county, HON. V. A. GRIFFITH Chancellor.

Suit by Mrs. Nina Ladner, as a citizen and taxpayer, on behalf of herself and other taxpayers, against the Road Protection Commission and the board of supervisors of Hancock county for an injunction. From a decree of dismissal, the complainant appeals. Affirmed.

Affirmed.

Gardner, Brown & Morse, for appellant.

The legislature of the state of Mississippi cannot take away from the board of supervisors the power and authority to construct public highways, and delegate such authority to any road protection commission organized under chapter 319 of the Laws of 1924. Section 1 of said chapter specifically provides that the board of supervisors shall have power to erect sea walls breakwaters, bulkheads or other necessary device to protect and preserve roads, streets and highways for which purpose bonds of the county may be issued, and it also provides in a general or vague way, that such bonds may be issued for constructing or improving highways. The title to the bill and the general text thereof show the purposes of this law are to preserve and protect roads, streets and highways and not to construct roads and highways. Section 4 of the chapter prescribes how a road protection commission can be organized in any county where the public highway extends along any body of tidewater. If there exist any authority in the road protection commission to construct public highways it was granted under sections 1, 5, 7 and 8, of chapter 319, and no public highway can be constructed under said chapter unless it be through the agency of the road protection commission. If that be true, then this chapter attempts to take away from the board of supervisors the authority and power to construct public highways and delegates that authority to the road protection commission, which the legislature is without power to do.

Under the law fifty per cent of the motor vehicle and gasoline tax collected in each county belongs to the county and the other portion to the state. Section 8 of chapter 319, provides that fifty per cent of the state's portion of such tax arising from such sources in Hancock county shall be paid into the county treasury to aid in the construction of the road protection or sea wall. It is not denied by the defendants, but on the contrary it is admitted, that this road protection pavement is to be used as a public highway, it being a concrete pavement forty-two feet in width according to the testimony of the engineer for the commission. If the construction of this concrete road protection pavement or apron is in fact the construction of a public highway, and if the power to build public highways cannot be taken away from the board of supervisors, then the county can be deprived, if the state so elects, of one-half of the motor vehicle and gasoline tax arising in that county, which would, were it not for said chapter 319, be paid into the state treasury to the credit of the state highway commission. It is too elemental to need citation of authority that the legislature cannot take away from the board of supervisors the power and privilege to construct highways and delegate that power to the road protection commission. It is of prime importance to the taxpayers of Hancock county that they receive the benefits conferred upon them by section 8 of chapter 319, which benefit is the right to receive one-half of the state's portion of the motor vehicle and gasoline tax collected from such sources in that country. It necessarily follows that if the road protection commission has no authority to build public roads and highways under the pretense or guise of building road protection to public highways, then the state can at any time decline to permit any portion of its one-half of the revenue arising in said county from the sale of gasoline and motor vehicle license being diverted to an unauthorized or unlawful purpose; namely the construction of public highways by the road protection commission of that county.

We respectfully submit that the true intent and purpose of chapter 319 is to authorize the construction of road protection to public highways, and that chapter will not bear the interpretation of granting to the road protection commission of Hancock county the power to construct public highways. That under our laws the authority to construct public highways as an original proposition is vested exclusively in the board of supervisors or in the state highway commission. That the attempt of said chapter to be broad enough to confer upon the road protection commission the power to construct public highways is without effect and is a nullity. If our reasoning is correct, the lower court should have granted a perpetual injunction, restraining the road protection commission and the board of supervisors from constructing a public highway, although it is referred to in the specifications as a road protection pavement and the defendants should have been enjoined from expending road protection funds whether derived from the sale of bonds or from gasoline or motor vehicle tax. The judgment of the lower court should be reversed and a decree rendered in this court granting the perpetual injunction as prayed for in the bill.

R. L. Genin, E. J. Gex and Gex & Russell, for appellee.

Counsels analysis of the act involved falls short of showing any purpose on the part of the legislature to invest the road protection commission power and authority to construct a public highway. It clearly appears from an examination of chapter 319 by its sections that the legislature carefully guarded the act against the constitutional objection suggested in the brief of counsel for appellant.

Section 1 clothes the board of supervisors with the authority, and makes it their duty, "to erect and maintain all necessary sea walls, breakwaters, bulkheads, sloping beach, or other necessary device to protect and preserve such roads, streets and highways," as are included within the provisions of the act; no mention of a road protection commission being made in said section.

Section 2 enlarges the scope of authority of boards of supervisors in that it authorized them to build such roads as are therein provided for at such reasonable width as they may deem necessary, though such width may exceed that theretofore fixed by law.

Section 3 clothes the board of supervisors with the power and authority, and makes it their duty, to exercise the right of eminent domain in order to procure the necessary right of way for such projects as the board may undertake under the provisions of the act.

The road protection commission does not come into the picture, so to speak, until we reach section 4 of the act, and there we meet the board of supervisors at the threshold. It is made a duty of the board in cases where it is necessary to protect any highway coming under the provisions of the act, to so declare by an order spread on their minutes and certified to the governor, who thereupon appoints five freeholders to constitute the road protection commission, "and who shall decide and recommend the kind and character of protection necessary, to be approved by the board of supervisors." The section then proceeds to define the duties and powers of said commission, which are: First, to select a suitable engineer, to be approved by the board of supervisors, to make a survey, plans, specifications and estimates of costs of construction under the direction of the said road protection commission, to be approved by the board of supervisors; second, to advertise for bids and let a contract or contracts for the road protection construction adopted by the board of supervisors; it being provided by repeated expression that all of the acts and proceeding of said commission shall be subject to the approval of the board of supervisors.

Section 5 merely provides the course of procedure to be pursued in adjudicating claims for damages in favor of owners of land taken for the purposes contemplated by the act. The only authority given the road protection commission by this section is the publication of notice to the landowners, "setting forth the commencement and termination with a general outline of the nature and extent" of the improvement or road protection work to be constructed. Adjudication of the claims of owners of land taken for such purpose remains vested in the board of supervisors.

Section 6 provides for appeals from the orders of the board of supervisors adjudicating damages under the provisions of section 5.

Section 7 confers upon boards of supervisors a power and authority to provide and maintain the necessary equipment for the prosecution of the road protection work provided for by the act.

Section 8 provides the method of financing the road protection scheme outlined by the act, devoting one-half of the state's portion of taxes derived from the sale of licenses and fuel for motor vehicles, etc., which would otherwise be paid into the state highway fund to the payment of bonds issued by the boards of supervisors for such road protection construction. The act does not authorize the road protection commission to construct any roads; second, the commission has not undertaken the construction of any road, nor the expenditure of any road funds.

In Thomas v. Board of Supervisors of Lee County, 98 Miss 232, 53 So. 585, an attack similar to the one made by appellant was made on the constitutionality of a strikingly similar act. But the court, holding to the contrary, said: "There is a twofold answer to this contention. In the first place, while section 170 confers...

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3 cases
  • United States Fidelity & Guaranty Co. v. Citizens' State Bank of Moorhead
    • United States
    • Mississippi Supreme Court
    • April 16, 1928
  • Henritzy v. Harrison County
    • United States
    • Mississippi Supreme Court
    • January 24, 1938
    ... ... providing that, "the Road Protection Commission shall ... make publication for thirty days in some ... 680] ... Brown ... v. Beatty, 34 Miss. 227; Ladner v. Road Protection Com., ... Hancock Co., 150 Miss. 416, 116 So. 602 ... ...
  • The Carl Ronnie Daricek Living Trust v. Hancock County, 2009-IA-01513-SCT
    • United States
    • Mississippi Supreme Court
    • May 13, 2010
    ...the constitutionality of the Seawall Act. See Henritzy v. Harrison County, 180 Miss. 675, 178 So. 322 (1938); Ladner v. Road Prot. Comm'n, 150 Miss. 416, 116 So. 602 (1928). In Ladner, the Court dealt with a different Ladner, 116 So. at 602. Ladner filed a taxpayer suit claiming that the gr......

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