State ex rel. County Court of Wood County v. State Road Commission

• Decision Date: 05 March 1963
• Docket Number: No. 12202,12202
• Citation: 147 W.Va. 623,129 S.E.2d 726
• Court: West Virginia Supreme Court
• Parties: . Louden, et al., etc. v. The STATE ROAD COMMISSION of West Virginia, a Corp. and Burl A. Sawyers, State Road Commissioner, etc. Supreme Court of Appeals of West Virginia

Page 726

129 S.E.2d 726

147 W.Va. 623

STATE ex rel. the COUNTY COURT OF WOOD COUNTY, a Corporation, Malcolm B. Louden, et al., etc. v. The STATE ROAD COMMISSION of West Virginia, a Corp. and Burl A. Sawyers, State Road Commissioner, etc.

No. 12202.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 29, 1963.

Decided March 5, 1963.

Syllabus by the Court

1. Bridges which are not wholly within the corporate limits of a municipality come under the provisions of Chapter 40, Article IV, Section 2, Acts of the Legislature, First Extraordinary Session, 1933, (Code, 17-4-2, as amended), and the State Road Commissioner is charged with the maintenance, control and supervision of such bridges.

2. Where the term 'within' is used in a statute, any unit, or, as in the case at bar, a bridge, must be wholly within the boundary prescribed in the statute before it complies with the meaning of such statute.

3. 'Under the provisions of Section 4, Article 4, Chapter 40, Acts of the Legislature, First Extraordinary Session 1933, the State Road Commissioner has power 'upon petition and hearing, or after due investigation, upon his own initiative, (to) discontinue any road no longer necessary' and such power is not subject to the control of the courts, except where its exercise is capricious, arbitrary or fraudulent.' Pt. 1, syllabus, Heavner et al. v. State Road Commission et al., 118 W.Va. 630 .

4. Mandamus will lie to compel the State Road Commissioner to comply with the mandatory provisions of the statute requiring him to assume control over certain roads and bridges, but the awarding of such writ will not in any way interfere with the proper use of his discretion in connection with the repairing, maintenance, supervision or discontinuance of such roads and bridges, as provided by the statute.

William R. Pfalzgraf, Pros. Atty., Richard M. Richmond, Asst. Pros. Atty., Parkersburg, for relators.

Benjamin A. Ritchie, Charleston, for respondents.

BERRY, President.

This is a proceeding in mandamus instituted under the original jurisdiction of this Court, wherein the petitioners, The County Court of Wood County, a Corporation, Malcolm B. Louden, J. Lloyd Amos and Frank J. Harrison, Commissioners thereof, pray for a writ of mandamus to compel the respondents, The State Road Commission of West Virginia, a Corporation, and Burl A. Sawyers, State Road Commissioner of West Virginia, to assume authority and control over the Juliana Street Bridge which crosses the Little Kanawha River in Wood County, West Virginia, part of which is located within the City of Parkersburg and part without the city limits of Parkersburg. This Court awarded a rule returnable January 9, 1963, that the respondents show cause why the writ should not be granted and on the return day of the rule the proceeding was continued, upon joint motion of the parties, until January 29, 1963. The respondents filed a demurrer to the petition and the case was submitted for decision upon briefs and oral argument.

The petition alleges that in 1889 the County Court of Wood County built the bridge in question across the Little Kanawha River in Wood County, and that it is still standing; that the north approach to said bridge connects with Juliana Street in the City of Parkersburg, and its south approach connects with the intersection of two roads outside the corporate limits of Parkersburg, said roads now being designated as State Secondary Route No. 9, which is part of the state road system supervised and under the control of the respondents; that the bridge is 868 feet in length, 175 feet of which is outside the corporate limits of the City of Parkersburg, and that the City of Parkersburg has never maintained nor controlled said bridge; that from the completion of the construction of the bridge the County Court maintained said bridge as a part of the county-district road system; that said bridge remained a part of the county-district road system of Wood County during this entire period of time until 1933; that the West Virginia Legislature, at its First Extraordinary Session, 1933, enacted a law wherein the authority and control over county-district roads and bridges was vested in the State Road Commissioner, with the exception of bridges and approaches to bridges situated within municipalities, which remained under the control and jurisdiction of the county courts; that the bridge in question, being a part of the county-district road system in Wood County not being within the municipality of Parkersburg, under the provisions of said Statute, became a part of the state road system under the authority and control of the respondents on July 1, 1933; that the petitioners have repeatedly requested and demanded that the respondents assume authority and control over the bridge in question, but that the present State Road Commissioner and his predecessors in office have continuously refused to exercise any control or authority over the bridge.

The respondents' demurrer admits all facts well pleaded, and if the Act of the Legislature in question transferred authority and control over the county-district road system, and if this bridge was a part thereof, as alleged in the petition, no answer having been filed by the respondents, the writ prayed for should be granted.

It is the contention of the respondents, however, that the petition does not allege that the bridge in question forms a connecting link between two counties, or two state routes, as required by Code, 17-4-26, as amended; that the allegation in the petition shows that part of the bridge was within the corporate limits of the City of Parkersburg, therefore, the entire bridge could not have been a part of the county-district road system on July 1, 1933; that the petition did not allege that a proper order was ever entered by the State Road Commissioner of West Virginia, designating said bridge as a connecting link, or as a part of the state road system, and that before it can become a part of the state road system it must be designated as a part of said system by the State Road Commissioner; that such designation is a matter within the discretion of the State Road Commissioner and that the allegation of the petition establishes the fact that the bridge in question is situated within the corporate limits of the City of Parkersburg and remains under the supervision and administration of the petitioners.

This entire proceeding is controlled by the provisions of Chapter 40, Article IV, Section 2, Acts of the Legislature, First Extraordinary Session, 1933 (Code, 17-4-2, as amended), which reads as follows:

'The commissioner shall take over the county-district roads on the first day of July, one thousand nine hundred thirty-three, and shall assume charge of their further construction, reconstruction and maintenance as a part of the state road system.'

The only exception to the above mandatory provision is contained in the same Act, Chapter 40, Article X, Section 1, Acts of the Legislature, First Extraordinary Session, 1933 (Code, 17-10-1, as amended), in the following language:

'The county court shall have the superintendence and administration of the construction, reconstruction, repair and maintenance of bridges and approaches to bridges situated within municipalities and at the time of the adoption...