Spraggins v. State

• Decision Date: 30 June 1913
• Citation: 183 Ala. 663,63 So. 83
• Court: Alabama Supreme Court
• Parties: SPRAGGINS et al. v. STATE ex rel. JEFFERSON COUNTY.

63 So. 83

183 Ala. 663

SPRAGGINS et al. v. STATE ex rel. JEFFERSON COUNTY.

Supreme Court of Alabama

June 30, 1913

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Mandamus by the State, on the relation of Jefferson County, against R.E. Spraggins and others, to compel respondents, as members of the State Highway Commission, to secure payment to the relator of the sums appropriated to its use out of the State Highway Improvement fund in the years 1911 and 1912. From a judgment for the relator, the respondents appeal. Reversed and remanded.

R.C Brickell, Atty. Gen., for appellants.

W.K Terry, of Birmingham, for appellee.

DE GRAFFENRIED, J.

In the latter part of the year 1912 the board of revenue of Jefferson county entered into a contract with Wallace Bros. &amp Young, whereby said Wallace Bros. & Young obligated themselves to construct a public road in accordance with certain plans and specifications, and which is known as the "Stouts Mountain Road." The road was to be three miles in length, and its total cost was to be $6,711.92. Wallace Bros. & Young were required to make, as a part of their contract, a bond in the sum of $10,000 "for the faithful performance of their contract."

By an act approved April 5, 1911, the "state highway commission" was created, and its powers defined. Of course, the act is to receive that construction at the hands of the courts which will carry into effect the legislative purpose which called it into existence. The true purpose of the act is expressed in that part of its title which says that it was enacted "to give state aid and state supervision over all public roads, culverts and bridges of the state for construction of a permanent nature and the maintenance thereof wherein any portion of the" funds of the state is "used for such purpose." It is manifest that the Legislature intended, when it passed the act, to foster and encourage road building in Alabama, to provide a method whereby public roads shall be skillfully and intelligently constructed and maintained, and to protect the counties and people of the state from losses necessarily entailed in building roads unskillfully and in ignorance of scientific methods. For this reason, section 7 of the act (see Pamph.Gen.Acts 1911, p. 223) provides: "That as soon as practicable the highway commission shall prepare and adopt such rules and regulations for the construction improvement and maintenance of public roads, culverts and bridges as they shall deem most suitable for the requirements of and bring the most practical results to the several counties of the state. Such rules and regulations shall be printed and several copies shall be forwarded to the probate judge and county commissioners or boards of revenue in the state for general distribution. Such rules and regulations may be amended from time to time, but such amendments must be printed and distributed not later than March 1st of each year."

1. It is, however, the evident purpose of the Legislature that no county shall receive, as aid to it in the construction of any public road, from the state money in excess of one-half of the cost of such road. This is rendered certain by section 6 of the act, which provides as follows: "No money shall be drawn from the state road fund by any county until the said county shall have appropriated and rendered available a sum of money equal in amount to the sum to be drawn from the state road fund."

2. It is also clear that the state intends--in order that a stimulus may be applied to counties in the matter of road building under the act--that no county shall receive any part of the fund which is appropriated to its use for one year, unless that fund is used by the county by the end of the next succeeding year. This is evident from the language of section 10 of the act, which provides as follows: "That on or before the first day of February of each year every county treasurer or other proper authority shall certify to the state highway commission the amount of money expended for all purposes in road construction and maintenance and for bridges in his county during the preceding year. On or before the first of February of each year, the highway commission shall notify the probate judge of each county of the amount of money available that may be expended on public roads in said county during such year. Should any portion of the money be appropriated for the benefit of any county not be used by said county during the current year for which the same was appropriated, such sum of money shall remain in the state treasury for the future use and benefit of said county, provided that all sums of money so appropriated and not used by any such county for a period of two years, shall revert to and become a part of the general fund for the improvement of the state highways of Alabama, and shall be in addition to the annual appropriation made therefor."

The language of the above-quoted section 10 must be read in connection with the language of that part of section 9 of the act which is as follows: "Where any work is done by contract the state highway commission shall require a bond of the contractor for the faithful performance of the work, the amount of the bond to be double the contract price and to be approved by the members of the commission. The highway engineer may authorize partial payments to any contractor performing any highway or bridge improvement, under the provisions of this act as the same progresses. The progress estimates shall be based upon materials in place and labor expended thereon, but not more than eighty-five per cent. of the contract price of the work as it is completed shall be paid in advance of the full completion and acceptance of such improvement. At least fifteen per cent. of the full contract price of any such work or improvement shall be withheld until the work is satisfactorily completed and accepted by the state highway engineer. Provided, however, that in cases of emergency where it is necessary for the court of county commissioners or boards of revenue or other proper authorities in the county to make repair on bridges or highways before they can confer with the state highway commission they shall be authorized to do said work without waiting to consult with the state highway commission."

When so read, we think that, unless there is "a bond of the contractor" which is "approved by the members of the commission," no money can be held to have been used by a county in any one year which is not represented by material actually supplied or work actually done on the state aid road during that year. Of course, if a mile of the road has in fact been built during a particular year, then the money for building the road has actually been used by the county, within the meaning of the act, during that year although no money has actually been paid out by the county for the mile of road so built. The work is there in the road to show for the money, and it does not matter to the state whether the debt thereby created has been paid or not. When, however, the building of a state aid road is actually begun in a given year, under a contract taken and approved by the state highway commission, then it was the manifest purpose of the Legislature to declare that the contract shall determine what amount, in each year, the county is to be held to have used. In the instant case the contract is...