Opinion
No. 27089.
April 16, 1928.
1. HIGHWAYS. Road protection commission and board of supervisors may, from funds voted, construct protection wall with protecting apron back thereof, which may be used as highway; board of supervisors, constructing road along beach or shore, need not adhere to old road's right of way; statute relating to road construction held not to violate constitutional provision giving boards of supervisors jurisdiction over roads ( Laws 1924, chapter 319; Constitution 1890, section 170).
Under chapter 319, Laws of 1924, providing that, when any public road shall extend along the beach or shore of any body of tidewater, and such road shall be exposed to damage by water driven against the shore by storms, and is not protected by, etc., the boards of supervisors shall have power to erect and maintain all necessary devices to protect such road, etc. The road protection commission and the board of supervisors may, out of the funds voted for such purpose, construct a protection wall, with an apron extending back of the wall a sufficient distance to protect the wall from being undermined by such water, and such apron may be used as a highway; and it is not necessary for the board to adhere to the right of way of the old road, as under the said chapter the board of supervisors must initiate the proceedings, and must approve all of the acts and plans devised under the said chapter. Chapter 319, Laws of 1924, does not violate section 170 of the Constitution, giving the boards of supervisors jurisdiction over public roads.
2. EMINENT DOMAIN. Highways. Statute held to empower board of supervisors to construct roads and to exercise power of eminent domain to procure right of way for road and protection wall ( Laws 1924, chapter 319).
Under the provisions of said chapter the board of supervisors are not limited to the expenditure of the funds for the road protection wall, but the act confers power to construct roads, and to exercise the power of eminent domain in order to procure right of way for the wall and the road.
APPEAL from chancery court of Hancock county; HON. V.A. GRIFFITH, Chancellor.
Gardner, Brown Morse, for appellant.
The legislature of the state of Mississippi cannot take away from the board of supervisors the power and authority to construct public highways, and delegate such authority to any road protection commission organized under chapter 319 of the Laws of 1924. Section 1 of said chapter specifically provides that the board of supervisors shall have power to erect sea walls, breakwaters, bulkheads or other necessary device to protect and preserve roads, streets and highways for which purpose bonds of the county may be issued, and it also provides in a general or vague way, that such bonds may be issued for constructing or improving highways. The title to the bill, and the general text thereof show the purposes of this law are to preserve and protect roads, streets and highways and not to construct roads and highways. Section 4 of the chapter prescribes how a road protection commission can be organized in any county where the public highway extends along any body of tidewater. If there exist any authority in the road protection commission to construct public highways it was granted under sections 1, 5, 7 and 8, of chapter 319, and no public highway can be constructed under said chapter unless it be through the agency of the road protection commission. If that be true, then this chapter attempts to take away from the board of supervisors the authority and power to construct public highways and delegates that authority to the road protection commission, which the legislature is without power to do.
Under the law fifty per cent of the motor vehicle and gasoline tax collected in each county belongs to the county and the other portion to the state. Section 8 of chapter 319, provides that fifty per cent of the state's portion of such tax arising from such sources in Hancock county shall be paid into the county treasury to aid in the construction of the road protection or sea wall. It is not denied by the defendants, but on the contrary it is admitted, that this road protection pavement is to be used as a public highway, it being a concrete pavement forty-two feet in width according to the testimony of the engineer for the commission. If the construction of this concrete road protection pavement or apron is in fact the construction of a public highway, and if the power to build public highways cannot be taken away from the board of supervisors, then the county can be deprived, if the state so elects, of one-half of the motor vehicle and gasoline tax arising in that county, which would, were it not for said chapter 319, be paid into the state treasury to the credit of the state highway commission. It is too elemental to need citation of authority that the legislature cannot take away from the board of supervisors the power and privilege to construct highways and delegate that power to the road protection commission. It is of prime importance to the taxpayers of Hancock county that they receive the benefits conferred upon them by section 8 of chapter 319, which benefit is the right to receive one-half of the state's portion of the motor vehicle and gasoline tax collected from such sources in that country. It necessarily follows that if the road protection commission has no authority to build public roads and highways under the pretense or guise of building road protection to public highways, then the state can at any time decline to permit any portion of its one-half of the revenue arising in said county from the sale of gasoline and motor vehicle license being diverted to an unauthorized or unlawful purpose; namely the construction of public highways by the road protection commission of that county.
We respectfully submit that the true intent and purpose of chapter 319 is to authorize the construction of road protection to public highways, and that chapter will not bear the interpretation of granting to the road protection commission of Hancock county the power to construct public highways. That under our laws the authority to construct public highways as an original proposition is vested exclusively in the board of supervisors or in the state highway commission. That the attempt of said chapter to be broad enough to confer upon the road protection commission the power to construct public highways is without effect and is a nullity. If our reasoning is correct, the lower court should have granted a perpetual injunction, restraining the road protection commission and the board of supervisors from constructing a public highway, although it is referred to in the specifications as a road protection pavement and the defendants should have been enjoined from expending road protection funds whether derived from the sale of bonds or from gasoline or motor vehicle tax. The judgment of the lower court should be reversed and a decree rendered in this court granting the perpetual injunction as prayed for in the bill.
R.L. Genin, E.J. Gex and Gex Russell, for appellee.
Counsels analysis of the act involved falls short of showing any purpose on the part of the legislature to invest the road protection commission with power and authority to construct a public highway. It clearly appears from an examination of chapter 319 by its sections that the legislature carefully guarded the act against the constitutional objection suggested in the brief of counsel for appellant.
Section 1 clothes the board of supervisors with the authority, and makes it their duty, "to erect and maintain all necessary sea walls, breakwaters, bulkheads, sloping beach, or other necessary device to protect and preserve such roads, streets and highways," as are included within the provisions of the act; no mention of a road protection commission being made in said section.
Section 2 enlarges the scope of authority of boards of supervisors in that it authorized them to build such roads as are therein provided for at such reasonable width as they may deem necessary, though such width may exceed that theretofore fixed by law.
Section 3 clothes the board of supervisors with the power and authority, and makes it their duty, to exercise the right of eminent domain in order to procure the necessary right of way for such projects as the board may undertake under the provisions of the act.
The road protection commission does not come into the picture, so to speak, until we reach section 4 of the act, and there we meet the board of supervisors at the threshold. It is made a duty of the board in cases where it is necessary to protect any highway coming under the provisions of the act, to so declare by an order spread on their minutes and certified to the governor, who thereupon appoints five freeholders to constitute the road protection commission, "and who shall decide and recommend the kind and character of protection necessary, to be approved by the board of supervisors." The section then proceeds to define the duties and powers of said commission, which are: First, to select a suitable engineer, to be approved by the board of supervisors, to make a survey, plans, specifications and estimates of costs of construction under the direction of the said road protection commission, to be approved by the board of supervisors; second, to advertise for bids and let a contract or contracts for the road protection construction adopted by the board of supervisors; it being provided by repeated expression that all of the acts and proceeding of said commission shall be subject to the approval of the board of supervisors.
Section 5 merely provides the course of procedure to be pursued in adjudicating claims for damages in favor of owners of land taken for the purposes contemplated by the act. The only authority given the road protection commission by this section is the publication of notice to the landowners, "setting forth the commencement and termination with a general outline of the nature and extent" of the improvement or road protection work to be constructed. Adjudication of the claims of owners of land taken for such purpose remains vested in the board of supervisors.
Section 6 provides for appeals from the orders of the board of supervisors adjudicating damages under the provisions of section 5.
Section 7 confers upon boards of supervisors a power and authority to provide and maintain the necessary equipment for the prosecution of the road protection work provided for by the act.
Section 8 provides the method of financing the road protection scheme outlined by the act, devoting one-half of the state's portion of taxes derived from the sale of licenses and fuel for motor vehicles, etc., which would otherwise be paid into the state highway fund to the payment of bonds issued by the boards of supervisors for such road protection construction. The act does not authorize the road protection commission to construct any roads; second, the commission has not undertaken the construction of any road, nor the expenditure of any road funds.
In Thomas v. Board of Supervisors of Lee County, 98 Miss. 232, 53 So. 585, an attack similar to the one made by appellant was made on the constitutionality of a strikingly similar act. But the court, holding to the contrary, said: "There is a twofold answer to this contention. In the first place, while section 170 confers full jurisdiction, etc., it further provides that this jurisdiction shall be exercised `in accordance with such regulations as the legislature may prescribe.' This feature of the act is a regulation prescribed by the legislature and well within the power conferred on the legislature. In the second place, by the terms of the act, full jurisdiction is still retained in the board, since the commissioner's acts and powers are subject to their approval in all respects." The legislature protected chapter 319 of Laws 1924, against the constitutional objection pointed out by our opponents as carefully as chapter 149 of Laws 1910, was safe-guarded against constitutional infirmities. The testimony all agrees that the only action taken by the road protection commission was the co-operation given by it to the board of supervisors in the road protection project inaugurated by the board of supervisors under the provisions of the said act. The particular piece of work sought to be enjoined is an integral and very essential part of the original road protection plan adopted by the board of supervisors. It was explained by the engineers who made the survey, plans and specifications. That the concrete pavement or apron adjoining the low type of sea wall contracted to be constructed is a necessary part of the road protection construction and that without such concrete pavement or apron extension of said type of sea wall it would be unsafe and almost useless to construct the sea wall. Upon the undisputed facts in evidence the court found that the construction of the concrete pavement extension was contemplated by and included in the original plan adopted by the board of supervisors, and approved by the electorate on the submission of the bond issue; that the construction of the proposed extension for the protection and preservation of the type of sea wall, or road protection, adopted is necessary; that it is immaterial that the road protection construction as planned and provided for, and as represented by the plans and specifications in evidence has not been let in one contract. The decree of the lower court is correct and should be sustained.
The appellant was complainant in the court below, and filed her bill, as a citizen and taxpayer of the county, the owner of real estate in the said county, and on behalf of herself and other taxpayers, against the road protection commission and the board of supervisors of said county, alleging that, under chapter 319, Laws of 1924, the board of supervisors passed an order, spread upon its minutes, that it was necessary that a system of road protection be constructed in said county to protect certain of its highways, and that a copy of said order was duly certified to the Governor of the state, who thereupon appointed certain named persons as road protection commissioners under the said act; that the said persons so appointed qualified as such, and that the road protection commission was duly organized; that after the organization of the said road protection commission they employed a civil engineer to make a survey, plans, specifications, and estimate of the costs of said road protection work, which the commission found and determined was necessary, and that the employment of the said engineer was approved by the board of supervisors; that thereafter the said engineer did, in due course, make a survey of the road protection work found to be necessary, and made plans and specifications and estimate of the costs of the construction thereof, which report, or estimate, was duly approved by the road protection commission; that thereafter the same was submitted to the board of supervisors, with the said plans, specifications, and estimate, and was by the board of supervisors duly approved; that after the same had been adopted by the two official bodies, and the estimate of the costs of construction of road protection to certain named public highways approved by them, the question of issuing bonds for the work specified was submitted to a vote of the qualified electors of the county, and carried; that the board of supervisors issued and sold bonds for the purpose of providing funds with which to construct the road protection to the said public highways in the county, as originally planned and contemplated by the road protection commission; that thereafter, after due advertisement for bids, contract was awarded in accordance with the specifications filed, on the 14th day of June, 1927; that the contractor executed bond for the faithful performance of, and began the execution of, his contract; that thereafter the road protection commission and board of supervisors decided to build and construct, and pay for out of the funds provided by the sale of the bonds hereinabove referred to, a concrete highway, or pavement, adjacent to or adjoining the sea wall, or road protection; that the specifications therefor were filed with the road protection commission, and on the 14th day of July, 1927, the road protection commission passed a resolution approving the plans and specifications for the concrete road authorized; that the said order also directed that an advertisement be inserted, asking for bids to be received and contract let by the said commission and the board of supervisors on November 8, 1927.
It is alleged that the action of said commission in approving the specifications for the construction of the concrete road, and the action of the commission directing that bids be received and contract let for such construction, had been approved by the board of supervisors of the county, and that it was the intention of the board of supervisors to enter into a contract for the said concrete road, or pavement, to the lowest bidder, on November 8, 1927. It is alleged that payment for the construction of the public highway, or road paving, out of the road protection funds of said county, as planned by the commission and board of supervisors, is not authorized by said chapter 319, Laws of 1924, or by any other law of the state of Mississippi; that said act only authorizes the use of the said road protection fund for the purpose of protecting any public road, street, or highway along the beach or shore of any body of tidewater, where such road, street, or highway may be exposed to, subject to, or in danger of damage by water driven against the shore by storms and that said act does not authorize the said commission to construct highways made of concrete or other material, but limits and restricts the commission and the board of supervisors, in the construction of protection by sea wall or other means, to designated class of existing public roads; that the act of the legislature did not contemplate that the road protection commission or the board of supervisors of any of the tidewater counties should have authority to issue bonds of the respective counties for the purpose of building and constructing highways, but that bonds should be issued for the purpose of constructing the necessary protection, by sea wall or otherwise, to the public roads of the several counties located along the tidewater.
It is further alleged that, while the construction of a concrete road or highway adjacent to the sea wall or road protection now under construction may, to some extent, strengthen or make more secure the said sea wall or road protection, nevertheless no authority exists in the said chapter 319 of the Laws of Mississippi to construct roadways, or to construct roads or paved highways, but that the authority and power of the road protection commission is restricted and limited to the construction of road protection; that the electors of the county voted to issue bonds, not to build highways, but to provide funds to protect highways constructed along the seashore, or sufficiently near to be subjected to damage by tidal waves or storms. It is further alleged that, unless injunction issue, the road protection commission and board of supervisors will wrongfully and unlawfully appropriate said road protection funds of said county in constructing concrete roads or highways adjacent to or adjoining the sea wall or road protection now being constructed by the county; that the complainant cannot prevent the said wrongful diversion of the road protection fund, as planned and contemplated by said county, by any action of law, such as complainant or any other taxpayer may institute, and that the only remedy to prevent the said plans from being carried out is by injunction; that, if the said defendants are not restrained and enjoined from carrying out their wrongful and unlawful plans and purposes, irreparable injury will be sustained by him and by other taxpayers of the said county. And the bill prays for such an injunction to issue, to prevent the construction of a concrete apron or road or public highway adjacent to the sea wall or road protection now being constructed in said county, and to enjoin and restrain the said boards from entering into such contract to pay therefor out of the road protection funds of said county.
The answer of the defendants admitted their purpose of constructing the apron, and the use of the apron as a roadway in connection with the road protection wall, but denied that they were not authorized so to do, and averred that the same was necessary for the protection of the road and of the wall erected; that they were constructing the same as an apron, and as a part of the road protection wall, because it was the best means of preventing the washing away of the road and wall, and the most effective method of constructing a road protection. They admitted their intention to use the same as a road or highway, and that it was to be constructed for a width of forty feet from the wall and from five to six inches in thickness. They denied that they were not authorized by Laws of 1924 to construct same — contended that they had authority under the said act to construct a highway, if necessary, for that purpose.
The engineer, Billingsley, advised the road protection commission of Hancock county that such an apron was a feasible and necessary protection to the concrete wall; that it was, in fact, as much a part of such sea wall as the piles that protected it. He submitted photographs of sea walls of similar nature, taken at Pensacola, Fla., showing the wrecking of same by means of washing the earth which supported the wall, by water cutting the support away from it, and urged the plan of protecting the wall by means of the apron. The engineer also testified that the system advised was the best and most effective method of road protection; that he had had experience in such matters, and from his study and investigation considered it the safest and most economical and safe protection to roads against such waters; that he had observed, in all parts of this country and in South America, the action of storms upon beach coast lines; that he had observed practically all forms of wall protection designed to arrest the action of waves and check the rush to the coast line under storm conditions; that such storm conditions occur in the most devastating form when at high tide; that high tide generally develop high winds, and the winds blow the water from the land side; that the effect of the waves is to arrest the onrush of the water, to prevent erosion of the beach line; that under storm conditions it is impossible to arrest the onrush of the water; that a great deal of water is thrown into the air under high wind velocity, and that this water is thrown on the area immediately back of the wall, and, if this area is not protected with what is termed a roof, it will be dugout, scoured out, leaving an excavated area back of the wall, and that this, in turn, will endanger the stability of the wall itself; that it was with the knowledge of these facts that he designed a construction which, instead of creating a large area of fill, would reduce the area, so that there would be a small amount of roof to build on the fill.
The chancellor upheld the action of the road commission and the board of supervisors in directing the construction of said apron or roadway, and dismissed the bill, from which decree this appeal is directed.
In section 1 of chapter 319, Laws of 1924, it is provided that:
"Whenever any public road, street or highway shall extend along the beach or shore of any body of tidewater, and such road, street or highway, or any part thereof, shall be exposed to, subject to, or in danger of, damage by water driven against the shore by storms, and is not protected in any sea wall district, the boards of supervisors shall have the power, and it is hereby made their duty, to erect and maintain all necessary sea walls, breakwaters, bulkheads, sloping beach, or other necessary device to protect and preserve such roads, streets, and highways, and for that purpose, and for the purpose of construction or improving such highway, may issue the bonds of the county therefor."
In section 2 of the act it is provided that:
"The several boards of supervisors are hereby clothed with full power to construct or improve, or to aid in the construction or improvement in case of national or state highways, all such roads and streets, and in such cases the law now in force governing the width of roads shall not apply, but such roads may be built to such reasonable width as the boards of supervisors and other proper authorities may determine."
In section 3 of the act it is provided that:
"For the purpose of this act, the several boards of supervisors are hereby clothed with the power and authority, and it is made their duty, to exercise the right of eminent domain in order to procure the right of way for such roads, streets, highways, sea walls, breakwaters, bulkheads, sloping beach and such other devices as may be adopted for the protection of such highways, and shall have the power to pass all necessary ordinances for the preservation and protection of any such road, sea wall, sloping beach or other device constructed under this act, and the violation of such ordinances shall constitute, and be punished as, a misdemeanor."
In section 5 of the act it is provided that:
"Whenever it shall become necessary to construct, widen or protect any highway under the provisions of this act, the road protection commission shall make publication for thirty days in some newspaper published in the county wherein such improvements are made, setting forth the commencement and termination, with a general outline of the nature and extent thereof. When any owner of land or other person shall claim compensation for land taken for such purpose, or for damage sustained by the construction, widening, improvement or protection of such road or highway, he shall petition the board of supervisors in writing within thirty days after the expiration of the time provided for such publication, setting forth the nature and character of the damages claimed, whereupon the board shall on five days' notice to petitioner, go on the premises and assess the damages sustained by him. The finding of the board shall be in writing, signed by the members agreeing to it, and must be entered on the minutes at the next meeting, but if the damages sustained and claimed to be less than the cost of assessing, the board may allow the same without inquiry."
Appeal proceedings are provided in section 6. Sections 8, 9, and 10 provide for funds to be used in such work.
It will be seen, from a careful reading of the statute, that the boards of supervisors were given power both to construct roads and road protection from such funds. It is quite clear, from a consideration of the statute in connection with what was done, as shown by the record, that the board of supervisors and the road protection commission had authority to do what was done. The Constitution (section 170), conferring full jurisdiction of roads, ferries and bridges upon the boards of supervisors, is not violated by the statute, because the board must consent to the improvement and to the plans and specifications therefor, and must, in fact, initiate the proceedings before the governor appoints a road protection commission.
The scheme provided, as shown by the testimony of the engineer, is one of the most effective to accomplish the legislative purpose. The apron proposed is to strengthen the road protection wall, and to prevent it from being undermined by the washing away of its rear support during storms; and the fact that it may also be used as a roadway does not militate against the power of the road commission and board of supervisors to construct it as a reasonable necessity for protecting the road protection wall proper.
Under the plans devised, the protection wall is not to be built so high as would be necessary, were not the apron attachment given to protect it. The board and road protection commission are expressly authorized to use the revenue provided for the purposes here involved. It is not necessary for the board of supervisors and the road protection commission to follow literally the roadbed as originally laid out. The statute clearly provides and intends that the proper exercise of discretion may be used, when it is necessary to construct a new roadbed, rather than follow the tortuous meanderings of an existing road.
The plan seems to be perfectly consistent with the statute, and the chancellor's finding, sustaining the action of the board of supervisors and road protection commission, will be upheld. We do not think the criticism made by appellant is well founded. The pleadings do not challenge the right of complainant to bring suit as a taxpayer, and the conclusion reached makes it unnecessary for us to determine the right of a mere taxpayer, in the absence of the proper showing of applying to the proper authorities representing the public, to bring the suit as affecting the public interest. We say this, so that entertaining this suit, and deciding the questions, will not be held to be a precedent authorizing a mere taxpayer to challenge the expenditure of funds already collected by the public authorities.
Affirmed.