State v. Raborn

• Decision Date: 01 April 1901
• Citation: 38 S.E. 260,60 S.C. 78
• Parties: STATE ex rel. FRANKLIN v. RABORN et al., County Commissioners.
• Court: South Carolina Supreme Court

38 S.E. 260

60 S.C. 78

STATE ex rel. FRANKLIN v. RABORN et al., County Commissioners.

Supreme Court of South Carolina

April 1, 1901

Appeal from common pleas circuit court of Aiken county; James Aldrich, Judge.

Application by the state, on the relation of W. H. Franklin, for writ of prohibition to prevent T. P. Raborn and others, county commissioners, from proceeding to change a highway. From a decree dismissing the application, said Franklin appeals. Affirmed.

The following is the decree of the court below:

"On June 9, 1900, upon the verified petition of W. H Franklin, Jr., a freeholder and taxpayer of the county of Aiken, and the relator herein, and certain affidavits, I made an order requiring the county commissioners of Aiken county and Richard McNamee & Co., the respondents, as stated in the caption herein, to show cause before me at my chambers, at Aiken, S. C., on June 16, 1900 why a writ of prohibition should not issue to restrain the said board of county commissioners and the said Richard McNamee & Co., their agents, servants, and employés, from changing and altering the long-established route of the public highway in said county known as the 'Pine Log Road,' at or near Kaolin, in said county; from discontinuing the use of said public highway at the point above mentioned as proposed from mining the said highway at said point for Kaolin, or from suffering or permitting the same to be done; from digging up, obstructing, abandoning, and destroying the said public highway at said point; and from doing any act or thing whereby the free and unobstructed use and travel of the public over and along said public highway as it now stands at said point may be hindered, interrupted, or prevented; and why the relator should not have such other and further relief as to the court may seem just. The order contained a provision that the respondents, until the further order of the court, be enjoined and restrained from permitting or committing any of the acts above stated, and that the relator should execute the usual injunction bond. On June 16, 1900 the respondents made their return to the rule herein. The relator desired to submit affidavits in reply to said return which was allowed, and respondents also asked for further time in which to submit additional affidavits. As I was then on the eve of holding the courts of the Seventh circuit, I signed an order, agreed to by counsel, which, inter alia, directed that 'the questions herein be continued to be heard before me at my chambers in Spartanburg, S. C., on the 12th July, 1900, at 8 o'clock p. m., or as soon thereafter as counsel can be heard.' On July 12, 1900, at Spartanburg, S. C., all of the papers were read and submitted, and the issues ably and elaborately argued. Owing to the press of business, having to hold court daily, I have not heretofore had the time to consider the issues herein with that care and consideration I desired to give to them. The pleadings herein are quite long, and a great number of affidavits have been submitted. I shall set out so much of the pleadings, exhibits, etc., as I deem necessary, and refer to others.

This proceeding may be divided into two parts, viz. matters of record, and matters not of record. The record beings with the following petition, the caption omitted: 'To the Honorable Board of County Commissioners in and for the County Aforesaid: The humble petition of Richard McNamee and James Graham Gardner, co-partners as R. McNamee & Co., respectfully shows to your honorable board: That they are the owners in fee simple and in possession of a large body of land in the county aforesaid, on both sides of the Pine Log road, one of the highways of the county, which said road runs through their land at and near Kaolin, in said county, and that as the owners of the land on both sides of said road they own all of the land over which the public travel just at the place occupied by their manager, Mr. F. E. Henderson, and for a good many hundred yards in both directions, east and west, from said place (except at the church), and that they are desirous of using the land over which the said Pine Log road runs at said place, and wish to obtain the permission of your honorable board to deviate the public road along the line and in the way as indicated by the plat of John N. Hankinson, Esq., C. E. & S., which said plat is made a part and parcel of this petition. And your petitioners are willing, and do hereby offer to your honorable board, at said deviation of said public road to make as good a roadbed, and place it in as good condition, as the original road now is, so that the public can use it without let or hindrance or inconvenience; all at the expense of petitioners, without costing the county a cent. Wherefore your petitioners pray your honorable body to take the matter into consideration, and to grant them such relief as in the premises is in accordance with justice and the law in such cases made and provided.' This petition was presented to the said board of county commissioners at their regular monthly meeting on April 2, 1900. The following is taken from the minutes of said board at said meeting in reference to said petition: 'On motion, the rules were suspended to hear a petition of R. McNamee & Co. to change the location of the Pine Log road at or near their kaolin mines. After hearing the petition read, and the statement of parties interested, it was agreed that before final action in the matter the board of county commissioners do meet all parties concerned in said change on Thursday, April 6th, at the place where said change is desired.' The record of the next meeting is as follows: 'Aiken, South Carolina, April 13, 1900. The board met in extra meeting at eleven o'clock a. m. Present: T. P. Raborn, Chairman, and Commissioner J. C. Courtney. The chairman stated that the meeting was for the purpose of final action on the petition of R. McNamee & Co. to change the location of the Pine Log road at or near his kaolin mines. The board of commissioners, after visiting the place where the said change is desired, as set forth in the resolution at the last meeting of this board, granted the following order: "The State of South Carolina, County of Aiken, Ex parte Richard McNamee and James Graham Gardner, Co-partners as R. McNamee & Co. Order. After due consideration of the petition of petitioners herein, and the plat of J. N. Hankinson, Esq., it is ordered that the prayer of said petitioners be granted, and in accordance therewith the petitioners be permitted to change the Pine Log road in the manner indicated upon said plat; and that when the change is completed by the petitioners, and accepted by the county commissioners, then the original road deviated from be abandoned, and the new road be accepted as a part of the Pine Log road, one of the highways of this county. All expenses of said change to be borne by the petitioners, without cost to the county. It is further ordered that the petition and the plat accompanying the same and this order be spread upon the minutes of the board of county commissioners, the recording to be paid by petitioners, as a part of the expense. It is further ordered that after such change has been made said McNamee & Co. shall, at their cost, keep in repair said changed road to the extent of the deviation for the period of five years. The changed road shall be thirty feet wide, and have such fills and grades as will make the roadway of easy grade as required by law; and that the county shall be saved from all expense of making such change and the maintenance for the period above named. It is further ordered that the said McNamee & Co., before making the change in said road, do enter into a bond to the county of Aiken in the sum of one thousand dollars, binding them to perform the terms and comply in all respects with the conditions upon which said change is granted. These resolutions were passed after the county commissioners had visited the present roadbed, and they became convinced that the old road is already dangerous, and is gradually becoming more so; and in their judgment a change in the said road as above indicated will be safer, and, if made with proper grades, will best serve the interests of the public, and also save the expense of maintaining the same for the period aforesaid; and this is another reason which induced the action of their board in the premises. The changed road, when finished, shall be acceptable to the county commissioners. It is further understood that in laying out and locating said change the county commissioners reserve the right to make such devisions in its location as they may think best, from the plat which accompanies the petition, to be changed or altered so as to conform to the direction of the commissioners. T. P. Raborn, County Supervisor. Attest: J. C. Courtney, A. W. Sanders, Clerk of County Commissioners."' The bond required in the foregoing resolution was duly executed and delivered. It is not necessary to set that out. The relator submitted that the meeting of the board of county commissioners held on April 13, 1900, at which the resolution last cited was passed, was an extra meeting, that such meeting was without authority of law, and therefore the action of the board was illegal.

By an act of the general assembly approved March 23, 1896, entitled 'An act to amend an act entitled "An act to provide a system of county government for the several counties of this state, so far as it relates to the working and maintaining of the roads and highways in this state,"' (22 St. at Large, p. 227), it is provided, inter alia, in section 1: 'The township board of commissioners and the county board of commissioners, as hereafter set forth in this chapter, shall have full power and

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