State Highway Commission v. McGowen ex rel. Hinds County

• Decision Date: 26 November 1945
• Docket Number: 35935.
• Citation: 198 Miss. 853,23 So.2d 893
• Court: Mississippi Supreme Court
• Parties: STATE HIGHWAY COMMISSION v. McGOWEN, District Attorney, ex rel. HINDS COUNTY.

23 So.2d 893

198 Miss. 853

STATE HIGHWAY COMMISSION v. McGOWEN, District Attorney, ex rel. HINDS COUNTY.

No. 35935.

Supreme Court of Mississippi

November 26, 1945

Suggestion of Error Overruled Jan. 14, 1946.

See 24 So.2d 330.

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

Watkins & Eager and Watkins & Avery, all of Jackson, for appellee.

L. A SMITH, Sr., Justice.

The District Attorney, pursuant to an order of the Board of Supervisors of Hinds County, for the use of said county filed a petition for mandamus against the State Highway Commission in the circuit court thereof, which was tried by the judge without the intervention of a jury, which was waived. Judgment was for the county, as far as the appraisement was concerned, and the Highway Commission appealed.

There was much pleading, but the case primarily dealt with the construction of Section 5004, Code 1930, Section 8036, Code 1942, and the meaning of 'final location' of a highway in said statute. The appellee contended that the location of Highway 51 through Hinds County was final in the sense of the statute, and the Highway Commission insisted it was not final; and the same contentions were made as to Highway 80 from the eastern edge of Clinton to the Warren County line. This issue involves also the question of whether demand had been made or was necessary to be made by the board of supervisors on the Highway Commission. It also necessitates the determination of the question whether we are called upon to decide a factual issue or to review the discretion of the State Highway Commission. The prayer of the petition for mandamus was that the Highway Commission be compelled to appraise and reimburse Hinds County for the value of the paving on said highways.

The purpose of the Stansel Act, Chapter 47 of the Laws of 1930, was to create a new Highway Commission for the purpose of establishing and maintaining a complete and coordinated highway system in Mississippi, and connecting with highways in other states so as to help form National highways. The Commission thus created consisted of three members, with ample powers, whereas the old Commission of eight members, superseded by the Act of 1930, had no powers and its only functions of value were as an intermediary between the Federal Government Bureau of Roads and the boards of supervisors, and advisory status as to the boards of supervisors in locating roads and letting contracts for the construction of roads in the respective counties. Such an arrangement obviously was a cumbersome and limited organization, with eighty-two different authoritative bodies in that number of counties in the State. This was because Section 170, Constitution of 1890, conferred exclusive jurisdiction over roads, ferries and bridges in the boards of supervisors, to be exercised in accordance with such regulations as the Legislature might provide. In attempting a unified highway system in Mississippi, the Legislature passed Chapter 173, Laws of 1914, which was held violative of this provision of the Constitution in that it attempted to provide a method by which practically all jurisdiction of the boards of supervisors over roads, ferries and bridges would be withdrawn from such boards and vested in a road commission. Havens, Tax Collector v. Hewes, et al., 128 Miss. 650, 91 So. 397.

By Chapter 143, Laws of 1924, after an election authorizing such action, the Constitution was amended to provide that the Legislature have the power to designate certain highways as state highways and place such highways under the control and supervision of the State Highway Commission for construction and maintenance. Pursuant to that authority, the legislation thereafter dealing with the subject may be found in Chapter 278, Laws of 1924, as amended by Chapter 218, Laws of 1926, and subsequent amendments, finally merging into Chapter 47 of the Laws of 1930, in which chapter Section 5004 was a part, same being now Section 8036, Code of 1942, in which Code the legislation governing is designated Title 30 and with the subject Highways. The pertinent statute. Number 8036, reads as follows, so far as the same is material to the consideration of this case: 'Whenever in the due course of the construction program of the state highway commission the time shall be reached when any paved highway or section thereof heretofore built in whole or in part at local expense would have been regularly constructed as a part of such program, and connection is made with such paved highway and same becomes a part of a continuous paved state highway, the state highway commission shall cause to be appraised the pavement on said highway, or the portion or portions thereof that it is to be utilized as a part of the final location of the continuous completed paved state highway so connected. Such appraisal shall take into consideration the original cost of such pavement and the wear, depreciation and deterioration of same, and the state highway commission shall pay to the local unit at whose expense the road was constructed the proportionate part contributed or paid by said local unit represented in the then existing appraised value. Such payment may be made under such terms as may be agreed upon with the governing body of such local unit, but in no case shall reimbursement be made in less than ten nor more than twenty approximately equal annual payments. In the event highway bonds of such county or district are outstanding, the commission may pay to such local unit semi-annually a sum sufficient to meet the payment of principal and interest due on the outstanding bonds, subject to the above limitation, until the total sum ascertained to be due shall have been paid. Should any surplus then remain, annual payments shall be made in sums amounting to not more than one-tenth of the total amount first ascertained to be due and not less than one-twentieth of such amount, until the total sum found to be due shall have been paid. Interest on the unpaid portion of the amount found to be due the local unit shall be included in the annual payments.'

At the outset, we feel it necessary to say that in our judgment the resolution adopted by the Highway Commission some weeks after this suit had been instituted, many years after the highways in question had been completed, and several years after a majority of the board of supervisors had called on the Highway Commission then in session and asked appraisal, has no evidential value in this case and is ineffectual as an exoneration per se of the Highway Commission. If it should be determined that the law and the facts dehors the same justify us in reaching substantially the same conclusions therein expressed, since appellee joined issue in denial of the findings of facts and law in said resolution by appellant, then we should so decide on such law and facts as in any other case. With reference to the claim of discretion by the Highway Commission, the appellant cites many cases but we do not believe that they are authority against the conclusions we have reached with reference thereto, which is in harmony with our announcement in the case of State, ex rel. Cowan, District Attorney v. State Highway Commission, et al., 195 Miss. 657, 13 So.2d 614, 619, quoting from the case of Madison County v. Mississippi State Highway Commission, 191 Miss. 192, 198 So. 284, wherein it is said: "If the statute invoked by the appellant is effectual to require the appellee to cause the appraisement to be made, then the circuit court is vested with full power under section 2348 of the Code, supra, to grant relief by mandamus on petition of the state, by its attorney general, or a district attorney, at least to the point of compelling the appellee to cause the links or sections of the highway referred to in the bill of complaint to be appraised, and may also punish as for contempt any refusal to obey its mandate under section 2353 of the said Code of 1930."

In the Cowan case the Court made this statement:

'It will be noted that the wording of Section 5004 is that, when the described conditions come about, 'the state highway commission shall cause to be appraised the pavement on said highway', and, 'shall pay' therefor. The word shall, directed as it is by the legislature to the creature of its own creation, the highway commission, is not doubtful; the command is positive and clear; it leaves no discretion in the Commission.

'It is also urged, as an intendment fairly deducible from the various statutes, that the Legislature intended to take over the county roads and bridges without paying anything therefor. The title to Section 5004 is 'Reimbursement for pavement already constructed.' The section prescribes in detail the manner and the limits how and within which the reimbursements are to be made, including the method of handling outstanding bonds of the counties, rate of interest, etc. The statute would be without object and meaning if the asserted contention should prevail.'

The case of Trahan et al. v. State Highway Commission et al., 169 Miss. 732, 151 So. 178, cited by appellant, declares nothing in conflict with the announcement in the Cowan case, in our judgment. In the Trahan case, Pike County had constructed an old highway with many curves in it and improperly located, which the Highway Commission undertook to relocate, which was sought to be enjoined by adjacent property owners. Pike County was not a party and there was no question of reimbursement involved, and the road had never been connected with the paved highway, or utilized by the Highway Commission as part of its system.

The Court therefore held, since the Highway Commission had discretion in...