Board of Supervisors v. Callender

1. Highways. Legislature may not tinder guise of regulations, divest board of supervisors of its jurisdiction and substitute other agencies for the board. Under section 170 of the Constitution of 1890, the board of supervisors is vested with full jurisdiction over roads, ferries, and bridges, to be exercised in accordance with such regulations as the legislature may prescribe, and under this constitutional provision the legislature cannot, under the guise of regulations, divest the board of supervisors of its jurisdiction and substitute other agencies as the controlling factor in the exercise of this jurisdiction. 3. Highways. Under statute providing for separate districts, commissioners therein have supervision over construction, and board of supervisors cannot change their orders. Under chapter 176, Laws of 1914, as amended by chapter 377, Laws of 1930, providing for the organization of separate road districts, and the appointment of commissioners to have supervision over the construction of roads in such district, and prescribing the duties of such commissioners, although these commissioners recommend the the construction of a certain road, the board of supervisors may order a different road, and their discretion in the matter cannot be controlled by the will or judgment of the highway commission.

Appeal from chancery court of Claiborne county. Hon. B. W. Cutrer, Chancellor. Bill by W. S. Callender and others against the Board of Supervisors of Claiborne county, in which a preliminary injunction was issued, and on final hearing and motion to dissolve the injunction was overruled, and defendants appeal. There are two questions involved in this case, and if either be answered adversely to appellees, the case must be reversed, if the view taken by appellant is not mistaken: 1st. Although the Road or Highway Commission recommends the building of a certain road (where proceedings are within the provisions of chapter 176, Laws 1914, and chapter 277, Laws of 1920), cannot the board of supervisors order the construction of a different road with the bond money, even though their order is not in accord with the judgment of the Highway Commission? Second: Will the courts interfere, by injunction, with the exercise of discretion lodged with the board of supervisors, in the absence of fraud or plain abuse of such discretion? We will discuss these questions in the order named. The plan or scheme selected by Claiborne county for improving its public roads is that defined in chapter 176, Laws of 1914, and chapter 277, Laws of 1920. These acts were brought down from chapter 149, Laws of 1810. The keynote of this entire act is the authority of the board of supervisors over the construction of the public road. This was specially conferred by section 170 of the state constitution, which invests the board of supervisors with full jurisdiction over roads, ferries and bridges. At the 1916 session of the legislature, chapter 169 was passed, which attempted to bestow on the Highway Commission this full jurisdiction (section 4, chapter 169, Laws 1916), over roads, ferries and bridges, the idea being to divest the supervisors of some of their powers. This act was promptly held in valid and unconstitutional by this court. State ex rel. Salter v. Board of Supervisors of Bolivar Co., 72 So. 700. In passing on chapter 169 of the Laws of 1916, the court said that the act was unconstitutional on account of its attempt to divest the board of supervisors of its jurisdiction over roads, ferries and bridges. The effect of this deci.sion was to leave chapter 176, Laws of 1914, which were sought to be amended by chapter 169, Laws of 1916 unimpaired and still in force. It will be noted by reference to page 39 of the record that the bonds were issued after the passage of chapter 277, Laws of 1920, which is but a rescript of chapter 176, Laws 1914, except for the addition of section 28 of the Act of 1920, which section is in these words: “That the provisions of this chapter shall not apply to any road or roads except those selected by the commissioners — unless otherwise ordered by the board of supervisors.” Now, what was the reason for inserting this section unless it was to cure any possible omission or defect in the chapter (176), Laws 1914, Avhich might be unconstitutional also if interpreted to mean that the road commissioners alone could dictate what roads were to be worked with the bond moneys, and, furthermore, even if it was the purpose of chapter 176, Laws 1914, to leave entirely and solely to the discretion of the highway commission the naming of such roads as it deemed proper to be worked with the bond money, and even if it was perfectly legal to do this, the quoted section (23) of the Act of 1920, confers a like authority on the board of supervisors; therefore, we contend that the board of supervisors of this county, in the instant case, had the right to declare that they would work the road between Port G-ibson and Rodney by deviating from the old route. So, the first branch of this discussion must be resolved in favor of appellants. Second: As to the propriety of the remedy by injunction against public officers acting in discretionary matters. The courts are practically unanimous in holding that they will not interfere by injunction in cases like this, unless there is fraud or a plain abuse of discretion, which amounts practically to fraud. In the first place, no fraud is charged in the bill, and therefore that feature must be eliminated. None was proved, of course, as the proof could not rise higher than the allegations of the bill. The scheme adopted by the legislature as set out in chapters 176 and 277, is simply a regulation of the manner in which the board shall exercise the power vested in it by the constitution. The regulations are simple, easily understood and should be strictly followed, especially as the interest of the tax-payers are thereby fully conserved. The moment a separate road district is established, in conformity with such acts, and bonds are ordered issued, three qualified electors and real estate oAvners in such road district are to be appointed, Avith the powers prescribed in the section five of said chapters above quoted. . These in due time select and fix the road or roads which are to be constructed, and maintained, etc. They make report of such action to the board, which must order the report filed, and spread on its minutes, Avhether it rejects- or confirms same. Besides the commissioners have the right, if necessary, to employ counsel; they must select an engineer, who is charged Avith duty of laying off the road making estimates of cost per mile, etc. In turn, this report to the commissioners by their engineer goes to the board, Avho must order it filed as a record of the clerk’s office, and have it spread on its minutes, either confirming or rejecting it. Finally, after these legal requirements have been performed, and the commissioners reports have been adopted, the commissioners let out contract for the work, in accordance Avith the requirements of law, for letting out public contracts. All subject to the final ratification and approval of the board. Thus, the power of the board under section 170, of the Constitution, has not been infringed; on the contrary a most reasonable and excellent regulation is made by the legislature, in strict conformity with said section 170. Other sections of the two above-named chapters, contained in Acts of 1914 and 1920, are not quoted, as the main scheme, regulating exercise of the constitutional power is above set out. The scheme is not only directory, but it regulates the conduct of the boards, as to application of the voted funds, and secures estimates of an engineer, along with a designation by the commissioners of the high-ivay or highways, for the convenience of the travelling public which are to be dealt with, in using the public funds, all however, subject to the ratification and confirmation of the board. Besides, the contract or contracts for the work to be done'after due and legal publication, etc., must be made by the commissioners, subject to confirma-' tion, etc., of the board. Wholly disregarding the provisions of chapter above quoted from the Acts óf 1914 and 1920, the board of supervisors ordered and directed that a road beginning at what is known as the Poor House Fork, and running from thence to what is known as the Greenwood Plantation, and from the Greenwood Plantation, to the Maddox Ford, be laid off and constructed by the expenditure of the above-named eight thousand dollars. In doing so, they had neither had before them a petition of persons using such roads, praying that the same be laid off into a public road under the general law.with proceedings such as the general law requires, nor did they have a report from the road commissioners along with a survey made by an engineer as to cost of same recommending that such road be constructed as a public highway nor did they leave to the road commissioners the right to deal with such highway in accordance with the powers conferred on them. Thus the board of supervisors acting without authority so to do directed the diversion of the eight thousand dollars, to a so-called new road, without authority of law. Answer argument made by appellant. Appellant states two propositions, as conclusive of its contention, set out on pages 2 and 3 of its brief. The first, that notwithstanding the provisions of chapters 176 and 277, the board may and can legally ignore the action of the commissioners; second, that by writ of injunction the court interferes with the discretionary powers of the board. In discussing the first proposition appellant contends that the language of section 170, of the Constitution confers unlimited jurisdiction on the board over roads, ferries and bridges. In doing so, it leaves out of consideration, the qualifying words, contained in said section reading: “To be exercised in accordance with such regulations as the legislature may prescribe.” It is urged by appellees that these words put limitations on the authority given; and that ivhen the legislature prescribes “regulations,” these must be followed, unless such take the power entirely away and try to put it in other agencies as a controlling-factor. The chapters under consideration with unusual clearness refers all acts done by the Commissioners and the engineer and the letting of contracts to the board of supervisors for its approval. If it may not be improper to use a plan prescribed by the legislature for the creation of commissioners to aid the supreme court in getting rid of a congested docket, it was permitted even in the teeth of a clear and unlimited provision of the state Constitution, to permit such commissioners to perpare opinions for adoption by supreme court; in doing so, no power of the supreme court was interfered with, but it was greatly aided in its work. The court simply adopted what the commissioner did. However, the qualifying words contained in section 170 are not found anywhere in any section conferring poAver on the supreme court. Going now to the case of Salter v. Board of Supervisors of Bolivar County, 72 So. 700, the point passed on by the court in holding chapter 169, of the Acts of 1915, unconstitutional was that it took directly aAvay from the board of supervisors the powers conferred on it by section 170 and vested the same un-qualifiedly in an officer created by that act giving Mm unrestrained jurisdiction over the matters named in section 1T0. It did not touch chapter 176, and chapter 277 is a simple copy of chapter 176, incorporating a few verbal changes not affecting, in any way, the provision of chapter 176, which it was intended to amend. Going now to the second proposition. It will be noted from the facts hereinbefore recited, which facts control this case that there is not discretionary power of the board in the least interfered with. If the board is constitutionally vested Avith power that it is hound to exercise in accordance Avith regulations prescribed by the legislature and it Avilfully and Avantonly ignores such regulations, can it be claimed for a moment that a discretionary power is being interfered Avith Avhen a court of chancery by writ of injunction brings it back to a proper regard of legal regulations? Going noAv to section 20 of chapters 176 and 277, Avhere-in appellant calls attention of the court to these Avords: “The cost of building all bridges shall come out of the general county fund . . . not out of the bonds fund at all.” This means evidently as the district is a separate road district controlled by chapters 176 and 277, that should the commissioners and their engineer recommend a bridge, and should it be constructed, that the contract price must be paid out of the general fund. However, the bridge is not the matter involved in this cause, it is the road that the board Avas seeking- to arbitrarily construct independent of the tAvo chapters. It might well be thought by way of discussion, the commissioners Avould find a bridge necessary and Avould report that such was necessary. In this case they did and the board Avas trying to use or about to use the bond fund to get a road through from the Poor House Pork, by Avay of the GreenAvood Plantation to the Maddox Pork. Again appellant quotes from section 28 of the Act of 1920, as folloAvs, that the provision of this chapter shall not apply to any road or roads except those selected by the commissioners — unless otherwise ordered by the board of supervisors. The vice in appellant’s contention is that no other kind of roads had been even mentioned by the commissioners, other than those shown in the report of Cage, Humphries and Allen above quoted. But, even if the board of supervisors had the power under a general law for the working of public roads by contract or by county prisoners or both, such law could only be put in operation by a vote of the board of supervisors in those counties where it may be desirable. See section 85, Constitution. It is needless, however, to discuss this phase because it is in no way involved in this cause. The various authorities cited by counsel for appellant on pages 5 and 6 of its brief for the reason that the questions covered in the cases cited it is respectfully urged do not in any way arise in the determination of the matters involved growing out of the usurpation of the board of supervisors. Certainly the power resides in a court of equity to prevent an unauthorized use or abuse of authority, especially when that authority is being exercised in the very face of legal regulations.