Murph v. Macon County
| Decision Date | 18 February 1929 |
| Docket Number | 6493. |
| Citation | 146 S.E. 845,167 Ga. 859 |
| Parties | MURPH et al. v. MACON COUNTY et al. |
| Court | Georgia Supreme Court |
Syllabus by Editorial Staff.
Under Laws 1921, p. 200, § 1, authorizing state highway department in taking over state-aid roads, to relocate roadbed department was authorized to relocate road, which was officially designated and maintained as state-aid road on September 23, 1921, providing there was no material change in general direction and location of designated road, other than such as was dictated by public interest, in establishing route for use as state highway system, taking into consideration all circumstances affecting construction maintenance of road, and securing thereby of main trunk line route through state.
Court of equity will not interfere with discretionary action of state highway department in designating and locating state-aid road, within sphere of their legally delegated powers, unless such action is arbitrary and amounts to abuse of discretion.
Relocation by state highway department of four miles of state-aid road extending for 30 miles in county in which change was located, and for considerably larger distance in other counties, held not material change as matter of law, under Laws 1921, p. 200, § 1, where shortening of distance of more than mile was effected, with saving of $25,000 to $30,000, and relocation removed three rectangular turns of approximately 90 degrees, preventing probable recurrence of serious injury, and proposed relocation crossed portion of right of way of former highway, and there was no intention to abandon portion of highway omitted from relocated route, but such road would be maintained as portion of county system of roads.
Where advertisement for sale of bonds stated proceeds were to be used to pave particular public road of county, but did not specify paving of highway as existing at time of election, and state highway department had right to relocate highway where necessary to construction of state-aid route under Laws 1921, p. 200, § 1, funds derived from sale of bonds could be used for paving portion of route legally relocated, as though route had remained unchanged, since voters are presumed to have knowledge of law conferring on state highway department right to relocate route.
Error from Superior Court, Macon County; Z. A. Littlejohn, Judge.
Petition for injunction by I. F. Murph and others against Macon County and others. Judgment for defendants, and plaintiffs bring error. Affirmed.
Relocation of four miles of state-aid road, saving mile, eliminating rectangular turns, and not involving abandonment of omitted portion, held not material change as matter of law. Laws 1921, p. 200, § 1.
I. F. Murph, T. S. Taylor, J. C. Taylor, and J. C. Walker, citizens and taxpayers of Macon county, filed a petition against Macon county and its commissioners of roads and revenues, and the state highway board, in which they sought an injunction restraining Macon county and its commissioners from applying any of the proceeds of a certain bond issue to the development or hard-surfacing of any changes, relocations, or resurveys in the road known as the Dixie Highway through Macon county as it existed on November 19, 1925. The case made by the petitioners was substantially as follows:
The Dixie Highway, state-aid route No. 49, connects the county seat of Peach county with the county seat of Macon county, and thence the county seat of Sumter county. It runs through the town of Marshallville, and the acts complained of in the petition refer to that part of the Dixie Highway, route No. 49, between Marshallville and Oglethorpe, the county seat of Macon county. The state highway department, pursuant to the legislative act approved August 18, 1919 (Ga. L. 1919, p. 249, art. 5, § 2, par. 4), did officially designate said Dixie Highway, Route No. 49, between Marshallville and Oglethorpe, as an official state-aid highway, on September 23, 1921. Since that date the highway department has continuously maintained said route as a state-aid route, and has improved it with state funds. In October, 1925, the board of commissioners of Macon county adopted a resolution preparatory to calling a bond election to issue paving bonds in the sum of $100,000, specifying that the purpose for said bond issue would be the paving of the Dixie Highway from the Peach county line to the Sumter county line. Dixie Highway is state-aid route No. 49. Pursuant to that resolution, the board of commissioners advertised in the Macon County Citizen newspaper, according to law, that an election would be held on November 19, 1925, to determine whether bonds in the sum of $100,000 would be issued "for the purpose of raising funds to be applied alone to the work of paving the public road of said county leading from the line of Peach county, through said county of Macon, to the line of Sumter county, known as the Dixie Highway."
On November 19, 1925, the voters of Macon county authorized the issuance of paving bonds in said amount, for the sole purpose of paving the Dixie Highway from the Peach county line to the Sumter county line; the published notice having specifically stated that this was the purpose of the bond election. The entire issue of bonds in the sum of $100,000 was soon thereafter validated, and was sold on or about January 1, 1926, and the funds derived therefrom deposited in banks to the order of the board of commissioners. On September 6, 1927, the commissioners of Macon county passed a resolution purporting to change said state-aid route between Marshallville and Oglethorpe for a distance of 4 miles or more in one instance alone, and condemned a new right of way, over the protests of plaintiffs, for the purpose of relocating 4 miles or more of the Dixie Highway, state-aid route No. 49, for a distance of four miles or more, for the purpose of applying said paving bond money on said new location in lieu of placing a pavement therewith on state-aid route No. 49, for which route said money was specifically voted. Thereafter, on October 20, 1927, the state highway board passed a resolution purporting to approve what is known as the compromise route (being the same route that the board of commissioners purported to adopt by its resolution on September 6, 1927), and in said resolution designated four miles or more of the Dixie Highway, state-aid route No. 49, as the official detour until such time as the new route is completed. The state highway board therefore attempted to abandon four miles or more of Dixie Highway, state-aid route No. 49, and will abandon said highway unless prevented by the court. The board of county commissioners is also attempting to apply said bond money to the new road, which was not in existence until two years after the paving bonds were voted, and thereby to divert said bond money from the specific purpose for which it was voted (to pave the Dixie Highway, state-aid route No. 49, as it existed on November 19, 1925), and will divert said bond money to an entirely new road, unless prevented by the court.
In their answer the...
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