Trahan v. State Highway Commission

• Decision Date: 27 November 1933
• Docket Number: 30719
• Court: Mississippi Supreme Court
• Parties: TRAHAN et al. v. STATE HIGHWAY COMMISSION et al

151 So. 178

169 Miss. 732

TRAHAN et al. v. STATE HIGHWAY COMMISSION et al

No. 30719

Supreme Court of Mississippi

November 27, 1933

Division B

1 HIGHWAYS.

Statutes respecting highway system do not require that state highway No. 51 follow existing roads between points mentioned in statute (Laws 1924, chapter 278, as amended by Laws 1926 chapter 218; Laws 1928 [Ex. Sess.], chapter 45; Code 1930, section 4997).

2 HIGHWAYS.

Highway commission could change location and fix length of state highway in conjunction with federal-aid authorities, to shorten its mileage and eliminate two grade crossings (Code 1930, sections 4998, 5006).

3 HIGHWAYS.

Court cannot give language of statutes respecting highway commission's powers restricted or over-technical interpretation (Code 1930, sections 4998, 5006).

4. STATUTES.

Statute giving highway commission power to construct links of unimproved road not over ten miles long, being susceptible of several different meanings, must be given interpretation adopted by departments acting under it to effect that statute refers to connecting gap, not to straightening of highway already connected (Code 1930, section 4995).

5. CONSTITUTIONAL LAW.

In construing constitutional provision, effect must be given to every word in it.

6. CONSTITUTIONAL LAW.

In construing constitutional provision, court will look to circumstances under which provision was ordained, objects, evils to be avoided or cured, and thereby arrive at reasonable meaning, keeping in mind that provision is intended to stand for long time.

7. HIGHWAYS. Constitutional provision respecting state highways allows Legislature to straighten main state highways so far as practicable between principal points in highway and to law out better locations (Constitution, section 170, as amended in 1924). Constitution, section 170, as originally ordained, conferred full jurisdiction over roads and bridges upon the boards of supervisors, and as amended in 1924 (Laws 1924, chapter 143), it provides that Legislature may have power to designate certain highways as state highways and place such highways under control and supervision of state highway commission for "construction" and maintenance. The word "construction" in its ordinary sense means to build or erect something which theretofore did not exist.

8. HIGHWAYS.

Designation of state highway in statute by giving principal points from Tennessee to Louisiana lines through which or near which road should run held sufficient under Constitution (Laws 1924, chapter 278, as amended by Laws 1926, chapter 218; Laws 1928 [Ex. Seas.], chapter 45; Constitution, section 170, as amended in 1924).

9. HIGHWAYS.

Under statute designating state highway, highway commission could follow old line of road wherever practicable and depart from old line to straighten road and find better locations (Laws 1924, chapter 278, as amended by Laws 1926, chapter 218; Laws 1928 [Ex. Sess.], chapter 45; Constitution, section 170, as amended in 1924).

10. HIGHWAYS.

In suit by taxpayers to enjoin change of location of highway by highway commission, court must determine whether complainants were being injured by unauthorized act of commission, since court must restrain unauthorized acts of officers on application of party suffering special injury.

11. HIGHWAYS.

Abutting property owners seeking injunction held to have sustained no legal injury, where highway commission abandoned part of state highway for shorter and safer route, since commission acted within limits of rightful authority (Laws 1924, chapter 278, as amended by Laws 1926, chapter 218; Laws 1928 [Ex. Sess.], chapter 45; Code 1930, sections 4998, 5006).

12. HIGHWAYS.

Taxpayers showing no special legal injury to themselves by highway commission's changing location of highway could not restrain expenditure of public funds before applying to all officers having duty to interfere.

13. HIGHWAYS.

In taxpayer's injunction suit against highway commission, general demurrer raised question of sufficiency of taxpayer's interest in matter to maintain suit.

14. PLEADING.

General demurrer challenges sufficiency of stated facts to make out sustainable case and also raises question whether complainants have sufficient interest in such facts to support decree in their favor.

15. HIGHWAYS.

In taxpayers' injunction suit, court would not determine question whether there was valid appropriation of funds for highway construction, where such taxpayers had no right to relief in respect to such questions.

16. COURTS.

Decision of question in case where there is no party having right to relief in respect thereto is of no force and would not be precedent.

17. HIGHWAYS.

If highway commissioners are not de jure officers because not elected at time required by Constitution, they are nevertheless de facto officers whose acts are valid so long as not challenged in legal manner (Code 1930, sections 2899, 4989; Constitution 1890, sections 102, 140, 143, 252).

18. STATUTES.

Statutory provision as to election of highway commissioners, if invalid, is inseparable from other provisions (Code 1930, sections 10, 4989).

19. HIGHWAYS.

Taxpayers owning property abutting on state highway to be abandoned for shorter route could not challenge validity of highway statute, since there was no legal damage to them by removal of state highway so long as there remained public highway, maintained as such, in substantially same location (Code 1930, sections 4998, 5006).

20. EVIDENCE.

Supreme Court must assume that board of supervisors in county would do their duty with respect to continuing, as public road, highway abandoned as state highway.

21. HIGHWAYS.

There is no law preventing board of supervisors from retaking public road abandoned as state highway (Code 1930, sections 4998, 5006).

Suggestion Of Error Overruled January 8, 1934.

APPEAL from chancery court of Pike county HON. R. W. CUTRER, Chancellor.

Suit by R. G. Trahan and others against the State Highway Commission and others. From a decree dismissing their bill, complainants appeal. Affirmed.

Affirmed.

L. T. Kennedy, of Natchez, and E. G. Williams, of McComb, for appellants.

No power is given by the Constitution to the highway commission to establish, designate or create a state highway. The highway commission can only construct and maintain such highways as the Legislature may designate from existing certain highways already established in a lawful manner.

Section 170, Constitution of 1890.

It is contended by appellee that the Legislature by chapter 129 of the Laws of 1930 delegated to the highway commission the power to locate, relocate, alter and change public roads. The Legislature had no such power to exercise, either by direct legislation or by delegation.

Heyman Case, 78 S.W. 349.

We contend that the acts here complained of amount to and are the establishment of a new road and not the location, relocation or alteration of Federal Aid Highway No. 51 as it existed in 1930.

29 C. J. 516 and 517; 189 Mass. 308, 122 Mass. 273; 205 N.W. 456; 167 Ga. 792, 167 Ga. 859.

We contend that the highway commission had no authority, delegated or otherwise, to lay out the road in question, either as a new road or as an alteration, location or relocation of the old road.

No appropriation was made by the Legislature to the highway commission of the gas fund, hence the use thereof or any portion of the same by the highway commission on this new road was unlawful.

Sections 64, 68, 69 and 70 of the Constitution.

The subject or title of chapter 93 of the Laws of 1932 is regulation of busses and trucks and the raising of revenue by the imposition of a gas and kerosene tax. The subject of this act is revenue, not appropriations.

The very terms of the Constitution negative the idea that revenue and appropriations are one and the same subject or that they may be included in the same bill.

Colbert v. State, 86 Miss. 769; Smith v. Chase, 109 So. 97; Lionel Cigar Store v. McFarland, 111 So. 341; Opinion of Justices, 14 Fla. 285.

Chapter 93 of the Laws of 1932, therefore, cannot be construed as an appropriation bill, because it is a revenue bill embracing another subject.

Sections 63, 73 and 113 of the Constitution; "Borden v. Louisiana State Board of Education, 123 So. 655; State v. Colbert, 81 Miss. 174; McAdoo Petroleum Corp. v. Commissioners, 294 P. 322; Kessler v. Mann, 264 S.W. 280.

Appellee says that, while the Constitution provides that all state officers shall be elected at the same time and in the manner that the governor is elected, that the highway commissioners are not state officers, but on the contrary are district officers. It is elementary that, if the duties of the office pertain to the entire state, it is a state office.

Chapter 122, Code of 1930.

Appellee says that "large discretionary powers" in the Legislature and the highway commission were authorized by the amendment to section 170 of the Constitution. The only and sole power given to the Legislature was the power "to designate certain highways as state highways" and place the same under the highway commission for construction and maintenance. The only discretion given to the Legislature was that of designation. The only authority authorized to be given to the highway commission was "construction and maintenance." Under this amendment to the Constitution, could the Legislature give the highway commission jurisdiction over county roads? Certainly not, because it would be violative of section 170 as to the jurisdiction of boards of supervisors.

State v. Bolivar County, 111 Miss. 867.

The Legislature having power under section 170 of the Constitution to designate certain highways as state...