State Highway Commission v. McGowen ex rel. Hinds County

• Decision Date: 14 January 1946
• Docket Number: 35935.
• Citation: 198 Miss. 853,24 So.2d 330
• Court: Mississippi Supreme Court
• Parties: STATE HIGHWAY COMMISSION v. McGOWEN, Dist. Atty., ex rel. HINDS COUNTY, et al.

24 So.2d 330

198 Miss. 853

STATE HIGHWAY COMMISSION v. McGOWEN, Dist. Atty., ex rel. HINDS COUNTY, et al.

No. 35935.

Supreme Court of Mississippi

January 14, 1946

Jas. T. Kendall, E. R. Holmes, Jr., and Green & Green, all of Jackson, B. H. Loving, of West Point, and Russell Wright, of Meridian, for appellant.

Watkins & Eager and H. V. Watkins & Ralph B. Avery, all of Jackson, for appellees.

GRIFFITH, Justice.

The Highway Commission renews its argument that the affirmed judgment of the trial court is an intrusion upon the discretion vested in the Commission. What the Commission seems to be urging, however, is that the discretion which it now desires to exercise shall be allowed to become a retroactive discretion, so as to undo something already done and done in pursuance of the discretion. So far as concerns a final location, within the meaning of the statute under consideration, the roads have already been located, and have been so for years, the result as a final fact being one upon the ground to be seen by a thousand witnesses every hour of the day. The court is dealing with something already done, while the Commission continues to talk of something wished or proposed to be done.

What was done in this case is summarized in our former opinion as regards the facts and the controlling facts which constitute a final location within the meaning of the statute under consideration, and we quote it here to point up and emphasize what, and what only, we have decided in this case so far as its central issue is concerned : 'When the continuous state highway was being completed, and in so doing, connection was made with the north and south links in Hinds County, that link was a paved highway, paved with the same character of durable material that the Highway Commission was generally using in its permanent work, and of a width sufficient to furnish safe lanes for passage in each direction. It was laid out upon reasonably straight lines upon suitable and safe grades and grading, and free from dangerous crossings, and was sufficient to carry the people of the state with convenience to or through principal points of business or social interests. We think practical men of sound judgment would say that at the time of the connection that the link as it existed was suitable to be and become a link in a continuous state highway for a considerable time to come.' This is a far different factual situation from that dealt with in Wilkinson County v. State Highway Commission, 191 Miss. 750, 4 So.2d 298, which the Commission now again urges in the argument. In that case there had been neither a final location nor facts which would at all befit a final location, such as we have above outlined.

It must be, as we think, that the Commission in its insistent attitude in this case is proceeding under the apprehension that by the holding of the trial court and our affirmance, the Commission will be precluded from making any other...