CLARKSON, J., concurring; STACY, C.J., and ADAMS, J., dissenting.
This was an action for an injunction to restrain the defendant from the alleged termination of route No. 70 at Pates.
Affidavits were filed by all parties. J. L. Prevatt and some one hundred and fifty others were permitted, without objection, to intervene in the cause. The interveners filed a brief, but they asked the same relief as the plaintiff.
The trial judge found the facts, and, upon such findings, entered judgment in favor of the plaintiffs. The judgment and findings of fact are lengthy, but by reason of public importance of the case, they are set out in full as follows:
This cause coming on to be heard before his Honor, G. E. Midyette, judge presiding, at chambers at Lumberton, N.C. on 7 September, 1926, it being the return day of the temporary restraining order heretofore issued herein, and upon motion to continue said restraining order to the final hearing, and all parties being before the court and represented by counsel, and the court having considered the pleadings, affidavits and exhibits and having by consent made a personal inspection and view of the several highways involved in this controversy.
The court now from the pleadings, affidavits, exhibits and admissions of the parties finds the following facts:
1. The court allows an amendment to the complaint so as to allege that the individual plaintiffs are taxpayers of the county of Robeson and State of North Carolina as well as citizens of said county and State. Most of said individuals live along the route now designated by defendant as highway No. 70, being the route marked in red upon the map which is hereto attached, marked Exhibit "A" and made a part hereof. Some of said individuals live in Lumberton but own property near and affected by said highway.
2. Certain other citizens and taxpayers of Robeson County were allowed by the court to intervene and become parties to this action. These individuals live several miles north of present highway No. 70 and near or along the road which is contended by them to be the true
[EDITORS' NOTE: THE MAP IS ELECTRONICALLY NON-TRANSFERRABLE.], SEE 193 N.C. 38.]
location of the road as fixed by the legislative map, this being the road marked upon the map, Exhibit "A," as the route contended for by the interveners.
3. There are three several routes involved in this controversy, all of which are shown upon the map, Exhibit "A" hereto, to wit, the route marked in yellow which is contended for by the defendant; the route marked in red which is contended for by the plaintiffs, and the route contended for by the interveners which is marked as such.
4. Chapter 2, Public Laws of 1921, and the map thereto attached, provides for a State highway connecting the town of Raeford, county seat of Hoke County, with Lumberton, county seat of Robeson County, and this highway is indicated as running through the town of Red Springs, in the county of Robeson. The defendant has heretofore constructed a State highway along a part of said route, to wit, that part between Raeford and Red Springs, and is now proposing to construct the balance between Red Springs and Lumberton, and the construction of this part of said highway has produced the present controversy.
5. Upon the organization of the defendant and ever since then, it has construed the route marked in red upon the map, Exhibit "A," hereto as the route laid down upon the legislative map of 1921, and ever since that time the defendant has kept up and maintained said highway along the red line, same being an integral part of State highway No. 70, and has always been marked and designated as such upon all maps issued by the defendant.
6. That prior to the institution of this action, the defendant proposed to abandon several miles of the route shown in red, being a part of the present State highway No. 70, and in lieu thereof to construct a highway from Philadelphus Church to a point near Pembroke, where it will connect the present hard surface highway No. 20, being the yellow route upon the map hereto attached, and were arranging to let the contract for the construction thereof, and would have let said contract had they not been stopped by the injunction issued herein.
7. That prior to the institution of this action, a contract was entered into between the board of commissioners of Robeson County and the defendant, State Highway Commission, a copy whereof is hereto attached, marked Exhibit "B," and made a part hereof.
8. Under this contract a hard surface road has already been built and completed from the South Carolina State line by way of Rowland to Lumberton, which highway intersects with highway No. 20, about three miles west of Lumberton; and the contract has been let for grading and surfacing a highway from Fairmont to Lumberton and work is now being done thereon and it is the purpose of the defendant to hard-surface said road in due course.
9. Acting under said contract, defendant proposes to abandon several miles of present State highway No. 70 (the red route) and to construct a highway from Philadelphus in a southerly direction to a point near the Indian school at Pembroke, this being the route shown in yellow upon the map hereto attached. At Pembroke said yellow route would connect with State highway No. 20, and persons coming to Lumberton would follow route No. 20 from Pembroke on into Lumberton, a distance of thirteen miles.
10. If the proposed road is constructed from Philadelphus to Pembroke along the yellow line as proposed by the defendant, it will lengthen the distance between Red Springs and Philadelphus and Lumberton by approximately three miles, but on account of the fact that highway No. 20 is already paved, the yellow route would be cheaper to construct than the red route, the difference in cost of construction being approximately $225,000.00.
11. If the proposed highway was constructed along the red route, the present line of route 70, it will intersect with highway No. 20 at a point about three miles west of Lumberton, and from that point into Lumberton routes 70 and 20 are identical, this part of the route being a natural stem from the location of the ground and the fact that the road for this distance runs near Lumber River and the swamp thereof, and for a distance of three miles of Lumberton present route No. 20 also serves route No. 70, and for that distance the two highways are the same; but when a point is reached about three miles west of Lumberton, the direct route to Red Springs and Raeford lies in one direction, whereas route No. 20 lies in a different direction, as is indicated upon the map hereto attached.
12. If the proposed highway is constructed along the yellow route as proposed by the defendant, State highway No. 70, instead of intersecting with highway No. 20 at a point three miles west of Lumberton and coming thence into Lumberton by a natural stem, will intersect State highway No. 20 at a point near Pembroke, which is thirteen miles from Lumberton, and all persons traveling between Lumberton and Raeford, Lumberton and Red Springs, or Lumberton and Philadelphus will have to travel via Pembroke and thus lengthen the distance to be traveled by approximately three miles.
13. According to the legislative intent, as contained in chapter 2, Public Laws of 1921, present route No. 70, the red route was intended to unite the town of Raeford, county seat of Hoke County, with Lumberton, county seat of Robeson County, and as shown by the map attached to said act, said road was to be constructed via the town of Red Springs. Defendant has already constructed a highway along that part of said route between Raeford and Red Springs, and is now preparing
to construct the balance of the highway from Red Springs to Lumberton, but now proposes to abandon several miles of said highway, present route No. 70, between Red Springs and Lumberton, and to construct a new highway along the yellow route shown upon said map.
14. If said highway is constructed along the yellow route as proposed by the defendant it will disconnect the towns of Raeford and Lumberton by thirteen miles, in that, instead of following the direct route as indicated on the legislative map of 1921, the proposed yellow route deflects sharply to the south from Philadelphus Church to Pembroke and there connects with highway No. 20, at a point thirteen miles from Lumberton.
15. That to allow the highway between Red Springs and Lumberton to be constructed along the yellow route would be to deprive the town of Lumberton of the service of a highway connecting it with Raeford as indicated upon the legislative map attached to chapter 2, Public Laws of 1921.
16. That to allow several miles of present route No. 70 to be abandoned and the highway to be deflected and diverted to a point several miles distant, as proposed by the yellow route, would deprive the citizens living along present route No. 70 or having property thereon of the rights and benefits conferred upon them under chapter 2, Public Laws of 1921.
17. That to allow the abandonment of several miles of the present route 70, the red route, and the construction of the yellow route, would be to deprive the town of Lumberton of the service of said highway, and would cause certain travel from Red Springs and Philadelphus and that section to be diverted from Lumberton to Pembroke, Maxton, Laurinburg and other points along highway No. 20.
Upon consideration of the foregoing facts the court is of opinion that the defendant is without power under chapter 2, Public Laws of 1921, and amendments thereto, to disconnect the county seats of Hoke and Robeson counties, as would be done by the construction of the route shown in yellow on the map from Philadelphus to Pembroke, and by abandoning several miles of the present highway No. 70, the red route, and the defendant is also without power to reduce the number of highways leading into the town of Lumberton from county seats of adjoining counties, and while the court does not undertake to control the location of State highways between county seats, principal towns and other termini named in the act of 1921, the court does have the power to prevent a disconnection of county seats and any abandonment of any such part of the route when such abandonment would work a disconnection of county seats.
It is, therefore, on motion of attorneys for plaintiffs, considered and adjudged that the defendant be, and it is hereby restrained and enjoined from letting a contract for the construction of the proposed highway along the yellow line, or from taking steps toward the construction thereof between Philadelphus and Lumberton via Pembroke, or from Philadelphus along the yellow line to a point in the vicinity of Pembroke, and this order shall apply to all persons acting under, by or for the said defendant, to wit, its agents, servants, employees and attorneys until the final hearing of this cause. And this cause is retained for further orders.
Referring to the fifth finding of fact, it was admitted by the defendant that, some time during the year 1921, it posted a map at the courthouse door in Robeson County, showing the routes the State Highway Commission proposed to take over, and that the route marked in red upon the map, Exhibit "A," was the route by which a connection was established between Lumberton and Red Springs, and that, thereafter, the defendant marked this route as a portion of Highway No. 70, and has since that time maintained it, and these facts constitute the basis for his Honor's finding.
The defendant admits that the location from Philadelphus Church to Pembroke contemplated by it is not in accordance with the legislative map. This Philadelphus-Pembroke location is evidenced by the yellow line on Exhibit "A."
That the words "natural stem," referred to in paragraphs eleven and twelve, do not indicate any route laid out by nature itself, but only refers to a flow of traffic over the route referred to as "a stem," and this flow of traffic uses this route because there is no other way yet constructed for it to use, and so far as the contour of the vicinity of Lumberton is involved it is approachable from any angle or direction with a highway.
The Road Act, for the purposes therein specified, provided for a State system of highways:
(a) "Running to all county seats and principal towns." (Sec. 2.)
(b) "Connecting the various county seats, principal towns and cities." (Sec. 3.)
(c) "Forbidding any change, alteration or discontinuance of any road so as to disconnect county seats, principal towns, etc." (Proviso, sec. 7.)
So that the law requires that all roads in the system, designated by the act, shall run to and connect the county seats. And in order that the county-seat-to-county-seat nature of the system shall be preserved, safeguarded and guaranteed, it was further provided that county seats should not be disconnected.
The record in this case presents two aspects of the same question, to wit:
Does a highway "run to" a county seat when it terminates at a point thirteen miles from its corporate limits? Does a highway "connect" a county seat when it lacks thirteen miles of touching it at all?
To ask these questions, nothing else appearing, is to answer them in the negative.
Therefore, the inevitable conclusion is, that if the road, as proposed by the defendant, does not "run to" and "connect" the county seats involved in the controversy, there has been no compliance with the express terms of the law. And, if the road, as proposed by the defendant, disconnects a county seat, then, this also, would violate the express terms of the statute.
Now the county seats involved are Raeford, in Hoke County, and Lumberton, in Robeson County. Between these two county seats is Red Springs, which is admittedly a principal town, or, at least, there is no controversy about that. The Road Act required that these two county seats and this principal town should be connected by a highway. In obedience to the command of the law, the defendant undertook to establish a connection between these two county seats by way of Red Springs, the principal town. There was a road already in existence and in use prior to the ratification of the Road Act and prior to the creation of the Highway Commission. This road ran to Lumberton from Raeford and Red Springs. The defendant, in compliance with section 7 of the Road Act, in the exercise of its discretion, proposed five roads to constitute "the roads in such county in the State system." In the exercise of its discretion, it went further. It designated or made these roads certain by making a map thereof and posting it at the courthouse door in Robeson County. The roads so mapped and designated by the defendant were as follows:
(a) From Elizabethtown, the county seat of Bladen, to Lumberton, entering Lumberton from the east.
(b) From Columbus County, entering Lumberton from the southeast.
(c) From Fayetteville, the county seat of Cumberland, to Lumberton, entering Lumberton from the north.
(d) From Laurinburg, the county seat of Scotland County, entering Lumberton from the west.
(e) From Raeford, in Hoke County, to Lumberton, entering Lumberton from the northwest.
Each of said roads was designated and mapped as a separate, distinct and independent road. No objection was made by the road-governing body "of either Hoke or Robeson County," or by the "street-governing body" of either Raeford, Red Springs or Lumberton. The law says: "In that case the said roads or streets, to which no objections are made, shall be and constitutelinks or parts of the State Highway System." If objection had been made by the designated parties, the defendant, after giving notice, would have heard the whole matter. In such event, the law says: "And the decision of the State Highway Commission shall be final." But the matter did not stop here. The defendant, in the exercise of its discretion, not only proposed and mapped this road as a part of the State Highway System, but it accepted it, as it existed, by taking it over and assuming control of it, and by maintaining it for more than five years. It gave it a name and called it Route No. 70. Under these circumstances, Route No. 70 was established by the defendant as a separate, distinct and independent road, constituting the sole and only connection between the county seats of Raeford and Lumberton. By identically the same process No. 20 was established as a separate, distinct and independent road, constituting the sole and only connection between the county seats of Laurinburg and Lumberton. No. 20 has been paved without material "change, alteration or discontinuance" so far as this record discloses.
Hence, the trial judge finds, as follows: "Referring to the fifth finding of fact, it was admitted by the defendant that some time during the year 1921 it posted a map at the courthouse door in Robeson County, showing the routes the State Highway Commission proposed to take over, and that the route marked in red, upon the map Exhibit `A,' was the route by which a connection was established between Lumberton and Red Springs, and that, thereafter the defendant marked this route as a portion of highway No. 70, and has since that time maintained it, and these facts constitute the basis for his Honor's findings. It (the defendant) has construed the route marked red upon the map Exhibit `A' (hereto attached) as the route laid down upon the legislative map of 1921."
This finding by the trial judge settles four propositions:
(1) That route, marked in red Exhibit "A," contended for by the plaintiff, was a road actually in existence and use, and not a random line upon a map dipping in swamps or scaling mountains.
(2) The defendant, in the exercise of its sound discretion, proposed this road as a part or link of the State System.
(3) The defendant, in the further exercise of its sound discretion, mapped this road and posted the map at the courthouse door in Robeson County, thus giving notice to the world "of the roads that are to be selected and made a part of the State System of Highways."
(4) The defendant, in the exercise of its sound discretion, selected this road as the identical road, shown on the legislative map attached to and being a part of the Act of 1921.
Therefore, this road was proposed, designated, mapped, selected and established, by the defendant, in the exercise of its sound discretion, as the connecting link of the State Highway System between Raeford, Red Springs and Lumberton.
But, at this point the ways part asunder.
The defendant says in its answer "that subject to the limitations above referred to, the duty, obligation and authority is imposed upon the said defendant to change or relocate any existing roads to the end that the "most practicable routes will be finally established and constructed."
This proposition means that the essential requirement of the law is that the highway shall be built by the "most practicable routes." Who is to determine these practicable routes, the Legislature or the defendant? The defendant says it has the sole power to decide this question. Suppose the defendant should determine that none of the existing roads, designated in accordance with the formalities required by the statute, were "practicable routes," then, by such reasoning, it could construct and establish an entirely and totally new system of highways for the State. Therefore, it would inevitably follow that with the right to construe the law and thereupon create a new system of roads in accordance with such construction, the legislative and judicial functions of the State, with respect to roads, would disappear.
The Road Act of 1921 was an amendment to chapter 189 of the Public Laws of 1919. The Act of 1919 provided, "for the construction and maintenance of a system of State highways which shall be constructed so as to form a system of modern highways . . . connecting by the `most practicable routes,' the various county seats and other principal towns of every county in the State." Thus, it will appear that in the Act of 1919, the words: "most practicable routes" referred directly to county seats and principal towns. But the Act of 1921 used the words "most practicable routes" in a totally different connection, as will appear by reference to section 2 of the act. There, the words "most practicable routes" occur in a clause as follows: "And linking up with State highways of adjoining states and with national highways
into national forest reserves by the most practicable routes." It is true the caption of the act uses the words "practicable routes" in connection with county seats and principal towns, but the caption of an act "cannot be used to extend or to restrain any positive provisions in the body of the act." S. v. Patterson, 134 N.C. 612; Hadden v. Collector, 72 U.S. 107. But, however, this may be, the Legislature declared that this road was a "practicable route" when it placed it on a map which was incorporated as a part of the statute. The defendant declared that it was a "practicable route" when it mapped this identical road and posted it at the courthouse door in Robeson County and notified the governing authorities of the county and of the town that this route was "to be selected and made a part of the State System of Highways." It is not to be assumed that the able and expert engineers of the defendant would have deliberately mapped and posted an existing road, and selected and accepted it, which they knew or had reason to believe was an "impracticable route." Upon the other hand, it is to be assumed that the defendant designated, mapped, selected, and assumed control and maintenance of it in good faith, and in the exercise of its sound judgment and discretion, as a "practicable route" between Raeford and Lumberton. It cannot be contended that the law required the defendant to assume control of this road within sixty days. Section 8 of the statute provides that the State Highway Commission within sixty days from the ratification of the act "shall commence to assume control of the various links of road constituting the State Highway System and shall complete the assumption of control . . . as rapidly as practicable." Hence the statute, very wisely, set no time limit as to the assumption of control, leaving this matter to the sound judgment and discretion of the Commission, in order that it might have full opportunity to investigate, among other questions, whether the route was "practicable" or not, or whether, if selected, the cost of paving would be reasonable, or whether the engineering features were favorable.
There is another phase of the statute which is the subject of conflicting contentions. It is contended that the words of the statute "shall be and constitute links or parts of the State Highway System," and the words "the decision of the State Highway Commission shall be final" should not be construed according to their strict and mandatory import, because road building is a technical problem and in the natural course of events, a trained body of experts and expert engineers would find many changes and alterations desirable and which would promote the efficiency of the system. The legal effect of this contention is that the word "tentative" should be read into the law. Thus, the legislative map should be deemed in all respects "tentative." The county map made and posted by the defendant should be construed in all respects "tentative." The
words "shall be and constitute links or parts of the State Highway System" should be read: "shall be and constitute tentative links or parts of the State Highway System." Also, that the words: "decision of the State Highway Commission shall be final" should be read: "decision of the State Highway Commission shall be tentative." Whether or not the word "tentative" should be read into the statute is a question open to debate. But as to whether the courts or the Legislature should put the word there is not open to debate. The function of the court is to construe laws and not to make them. If the courts attempt to read into the law words of their own or read out of the law other words contrary to their conception of what the law ought to be, then this would amount to erecting a legislative despotism of five men, which would perhaps be more pernicious and subversive of the State's peace than the judicial despotism mentioned by Chief Justice Pearson inBrodnax v. Groom, 64 N.C. 244.
In School Comrs. v. Alderman, 158 N.C. 191, Justice Hoke declares the following rule for construing statutes: "In other words, the statute must be interpreted literally. Even though the Court should be convinced that some other meaning was intended by the law-making power, and even though the literal interpretation should defeat the very purposes of the enactment, still the explicit declaration of the Legislature is the law, and the courts must not depart from it."
So, in our case, there are explicit declarations by the Legislature, and under the rule announced by Justice Hoke these explicit declarations are the law, irrespective of what the Court thinks as to their wisdom or unwisdom.
Of course changes, alterations and discontinuances of proposed roads shown on the legislative map were authorized under certain limitations, but when that map was actually fitted to the ground by the defendant through the map made by it and posted at the courthouse door, and by the exercise of its discretion in accepting, selecting and incorporating such road into the State system the explicit legislative declaration was "and the decision of the State Highway Commission shall be final."
Justice Ruffin, in Pugh v. Grant, 86 N.C. 47, in discussing the interpretation of statutes, says: "The true rule for construing a statute, and we may say the only honest rule, for a court really seeking to observe the will of the Legislature, is to consider and give effect to the natural import of the words used. If they be explicit, and express a clear, definite meaning, then that meaning is the one which should be adopted, and no effort should be made by going outside of the words used, to limit or enlarge its operation. Above all, it is not to be presumed that the Legislature intended any part of a statute to be inoperative and mere surplusage."
Did the Legislature intend that the map attached to the statute and incorporated as a part thereof should be "inoperative and mere surplusage"?
Did it intend that the words "shall be and constitute links or parts of the State Highway System" should "be inoperative and mere surplusage."
Did it intend that the "designation of all roads comprising the State Highway System as proposed by the State Highway Commission shall be mapped" was to "be inoperative and mere surplusage"?
The word "designation," according to its "natural import," has an established meaning. The definition given in Webster's International Dictionary is: "A pointing out or showing; indication. Selection or appointment for a purpose. That which designates; a distinguishing mark or name." This definition has been adopted and applied in Kimball v.Salisbury, 56 Pac., p. 975, and in S. v. City of Red Lodge, 83 P. 643.
Thus, the "designation of all roads," etc., and the subsequent acceptance and selection thereof was the method by which the statute required the defendant in the exercise of its discretion to point out, make known, designate and mark out the roads in each county which were to be "selected and made a part of the State System of Highways."
Now, if the word "tentative" can be read into the various clauses of the act, and the words "most practicable routes" can be construed to mean such routes as the defendant may from time to time determine, then the statute can be reduced to a simple minimum, to wit, that the State issued $50,000,000 in bonds and in due course turned over said funds to the defendant to establish and construct such a system of highways for the county seats and principal towns and by such connections as the Highway Commission may, in its discretion, deem wise and proper. The Court has nothing to do with the question as to whether the delegation of such discretion would be wise or unwise. With us, the only question is, did the Legislature, by the language employed, actually delegate such discretion? We think not.
We are, therefore, of the opinion that the statute means that when an existing highway has been designated, mapped, selected, established and accepted by the State Highway Commission as the sole and independent connection between two county seats in compliance with the formalities prescribed by the statute that this is a location of the road as a permanent link of the State System of Highways.
Now Raeford, Red Springs and Lumberton, having been "connected," both by the formalities prescribed by law and by the exercise of the discretion of the defendant in accepting and adopting this highway marked in red upon Exhibit "A," as the sole, separate and independent
link between the two county seats, we are of the opinion that any radical or substantial departure therefrom would constitute a disconnection.
Thus, in Newton v. Highway Commission, 192 N.C. p. 54, the Court held: "We conclude that the Road Act itself connected the county seats according to the best judgment of the Legislature. A substantial departure from such connection so made by the sovereign power of the State must, of necessity, constitute a disconnection."
The defendant, however, earnestly insists that the law ought not to be so declared for three reasons:
(1) That the road proposed by it "runs to" and "connects" Lumberton because it enters No. 20 at Pates, near Pembroke, and while this point is thirteen miles from Lumberton, still No. 20 runs from Laurinburg to Lumberton and is now a paved highway, and the public could travel from Raeford to Red Springs and from Red Springs to No. 20 at Pates, and thence enter Lumberton from the same direction and at the same point. We assume that there can be no serious contention but that No. 70, the route in controversy, by virtue of the proposed change, would terminate at Pates in No. 20. Now, if No. 70 can be terminated in No. 20, thirteen miles from the county seat, and yet "run to" and "connect" it, why could not the same result be achieved by terminating No. 70 fifteen miles distant, and, if fifteen miles, why not forty? A traveler from Raeford would still enter Lumberton from the same direction and at the same point. In the exercise of the same discretion, why could not the road be built from Red Springs or Raeford to enter No. 20 at Laurinburg and "run to" and "connect" Lumberton through Laurinburg. Even in this event, a traveler from Raeford or Red Springs would still enter Lumberton from the same direction and at the same point, and thus under the guise of changes, alterations and discontinuances, the entire system of highways could be consolidated into a few great thoroughfares. Evidently, the Legislature contemplated that Lumberton was entitled to these roads as independent entities. If the proposed termination of No. 70 at Pates should be allowed, this would reduce the number of roads designated by the statute, and also by the defendant. There would be a conflict between the judgment of the Legislature and the judgment of the defendant. We are of the opinion that the judgment of the Legislature should abide.
Obviously, a road can only connect points between its origin and its terminus. So far as this controversy is concerned the origin of the road is Raeford and the terminus, under the proposed change, would be Pates, near Pembroke, thirteen miles from the objective. Hence, Lumberton would not be on the route of the road at all. The law required that the highways in the State system should "run to" and "connect" the county seats at all events, and irrespective of any maps, proviso or discretion.
(2) The second reason urged in behalf of the defendant is that this Court has heretofore established the law to the contrary. This proposition requires an examination of the cases relating to the subject. There are three decisions bearing upon the construction of the Road Act, but only one of these decisions, to wit, the Newton case, undertook to deal with the question of connecting county seats, and the question involved in this appeal is the question of connecting county seats.
The first case decided by the Court was Road Commission v. HighwayCommission, 185 N.C. p. 56. In that case the Highway Commission, on 2 May, 1921, mapped a road as required by the statute running from Tarboro to Halifax, two county seats, by way of Speed and Hobgood. The county authorities within sixty days signified their approval. Thereupon, on 1 September, 1921, a short time after the sixty days had expired, "the Highway Commission, having had a hearing to determine whether finally to approve the route between Scotland Neck and Tarboro, passing through Hobgood and Speed, abandoned the location of that part of the route between Moore's Crossing and Scotland Neck, substituting a shorter, and, as it adjudged, a better route." The Court held: "It was evidently the intent of the statute that the posting at the courthouse door was to give the State Highway Commission an opportunity to pass upon objections which might be raised against the proposed location by the local authorities and the restriction of 60 days in which such objection could be made was a restriction upon the local authorities only. It was not intended to take from the State Highway Commission the general discretionary authority conferred in section 7 to `change, alter, add to, or discontinue' the roads shown on the map posted by the Highway Commission.
The action of the Highway Commission complained of consisted merely in shortening the road between Moore's Crossing and Scotland Neck (2 points on the road between Halifax and Tarboro). It does not appear that this was an abuse of the authority vested in the Highway Commission, and the court below properly refused to grant a mandamus to compel the Highway Commission to adhere to the first or tentative location of the road. Neither by length of time nor long use, nor by the allegation of any other fact does it appear that the Highway Commission exercised their discretionary power arbitrarily or abusively."
An analysis of this opinion discloses, therefore:
(a) That the action complained of was the mere shortening of a road between two county seats involving neither a connection nor a disconnection of either principal towns or county seats.
(b) That the Highway Commission did not accept the road as mapped or incorporate it into the State System of Highways, but expressly
declined to do so promptly, and after a public hearing in Raleigh on 1 September, 1921. The statute provided that it could hear objections and render a decision, and provided further: "And the decision of the State Highway Commission shall be final."
In the case now before us the action complained of is not the mere shortening of a road between two objectives, fixed by law, but it is the termination of it and the destruction of its identity thirteen miles before it reaches its objective; and, further, in our case, the Highway Commission accepted the road in controversy, incorporated it into the State system, and has maintained it as such for more than five years.
Hence, the case of Road Commission v. Highway Commission, supra, is not decisive of the principle of law involved in the present appeal.
The next case, involving a construction of the Road Act, was Cameron v.Highway Commission, 188 N.C. p. 84. This case and the Newton case are the "apples of discord" in the road law. They both present an honest but fundamental divergence of opinion. The decision in the Cameron case was rendered by four Justices, the Chief Justice having been called to his reward before the case was decided. Three of the four Justices wrote opinions. The divergence of opinion and of interpretation of the statute are fully reflected in the decision. For instance, the main opinion says: "We do not controvert the proposition that the defendants are clothed with certain discretionary powers; but, as we interpret the act, these powers do not include changing, altering, or discontinuing all roads in the exercise of a discretion which can be reviewed only in case of oppression or bad faith." The concurring opinion says: "In my opinion, it must be determined by the State Highway Commission in the exercise of a sound discretion, subject to judicial review only in case of abuse of discretion or when the authority reposed in the Commission has been exercised in an arbitrary and unreasonable manner." Another concurring opinion says: "that the Legislature was not only not willing to confer such extended powers on the Commission, but they did not — they limited them in going from county-seat-to-county-seat, to go by principal towns."
These declarations of law, with respect to the discretion delegated by the statute to the defendant, are as far apart as the zenith and the nadir.
Again, the main opinion says: "To hold with the defendants that the right to determine what are principal towns is to be referred to the commission itself, and that their action is final, except in case of manifest abuse, would be the proper interpretation of the act if there had been no proviso."
A concurring opinion, discussing the identical proposition, says: "To my mind, principal towns, mentioned in the statute, and which may not
be disconnected from the State's System of Highways, are to be determined by the State Highway Commission in the exercise of a sound, but not arbitrary judgment."
Another concurring opinion says: "The towns on the map were the principal towns in the mind of the Legislature when the act was passed."
These declarations of law as to how a principal town could be identified and determined are also as far apart as the zenith and the nadir, and yet they are the utterances of three Justices out of four who participated in the Cameron decision. The Cameron case went off upon the point that Stem was not a principal town, and, therefore, it was not necessary to connect it by the highway running from Oxford to Durham. The record in the Cameroncase discloses that it was alleged in that case and stressed at great length in the briefs that the road from Oxford to Durham had been mapped, and the map posted at the courthouse door; that no objection had been made by the governing authorities, and that the Highway Commission had thereupon taken the road over and maintained it for about three years. But the effect of posting the map at the courthouse door is not referred to in the opinion of the Court. The effect of the acceptance of the road and of the incorporation of it into the State System of Highways was not discussed or mentioned in the opinion. The effect of explicit legislative declarations "shall be and constitute links or parts of the State Highway System" and the "decision of the State Highway Commission shall be final," are not mentioned or discussed. It would appear that this is sufficient evidence of the fact that the Court left these matters open for future determination, for the reason that it was not necessary to pass upon them if Stem was not a principal town, because, in such event, there was no requirement that Stem should be connected at all with either the highway system or with Oxford and Durham, and if there was no requirement that Stem should be connected at all, there was certainly nothing in the statute to prohibit or prevent a disconnection. An interesting sidelight disclosed by the Cameroncase is the statement of engineers of defendant, as follows: "It is, therefore, my opinion that the engineering factors favor the Stem route. The margin is not great, and other factors, such as local service, opening up a new section, and land values, which favor the Creedmoor route, should be balanced against the engineering features and the advisability of changing the State Highway from its present location on the Stem route." It was further stated in briefs of plaintiff that an error of approximately $20,000.00 had been made in the calculation of the estimated cost of the two routes with the result that the Creedmoor route, chosen by the defendant, was the more expensive construction. In other words, in theCameron case, the defendant undertook to abandon the road even
though its engineering features were more favorable and the cost of construction less. At all events, however, the road was built to Durham and to Oxford, the county seats. There was no effort made to consolidate the road with some other highway or to terminate it thirteen miles from Durham.
As the writer interprets the Cameron case, there were three points upon which a majority of the Court agreed, to wit:
1. Stem was not a principal town in contemplation of the law.
2. The language of the proviso of section 7 was mandatory and not discretionary.
3. That the map attached to the legislative act could not "reasonably be accepted as a legislative fiat to construct a system of highways in strict conformity with the roads proposed."
These propositions are not decisive of the present case now under consideration. As to whether or not Stem was a principal town is immaterial to this appeal. It is agreed on all sides and in all the cases that the language of the proviso is mandatory, and it is not intended in thisCarlyle case that the highway should be paved in "strict conformity" with the proposal shown on the legislative map but rather that when that map was fitted to the ground by the defendant with all the formalities prescribed by the statute, and thereupon an existing highway is selected, accepted and actually incorporated into the State system, that the period of "proposing" ended and the period of permanent links or parts of the State Highway System began.
The third case dealing with the construction of the statute was Newtonv. Highway Commission, 192 N.C. p. 54. This case involved the nature of the connection of the highway system with the town of Newton. The connection through the town of Newton had been proposed, mapped, established, taken over, selected and designated as a part of route No. 10 in accordance with the formalities of the statute, and the Court held that the defendant was without power to make radical changes and departures from the connection so established.
(3) The last contention made in behalf of the defendant in objection to construing the statute as indicated herein, is that the statute delegates to the defendant certain discretion in the location of a road which is not reviewable by the Courts. The general rule is stated thus in Newton v.School Committee, 158 N.C. 187: "In numerous and repeated decisions the principle has been announced and sustained that courts may not interfere with the discretionary powers conferred on these local administrative boards for the public welfare unless their action is so clearly unreasonable as to amount to an oppression and manifest abuse of discretion." The Newton case grew out of the selection of a school site for a graded school in Charlotte. The case
of Newton v. School Committee was a companion case to School Comrs. v.Aldermen, 158 N.C. 191. The aldermen of Charlotte contended that they had the right to approve the selection of school sites rather than the board of education. The Court held that the power to purchase sites and "do everything that is necessary and proper to open and conduct" the schools was broad enough and ample enough to clothe the school committee with sole and exclusive authority to select sites, and that for that very reason the "board of aldermen of Charlotte are without discretion in the matter." There were no formalities prescribed by the statute as to proposed sites or other formalities prescribing how the proposed sites should become final.
The other case most frequently cited in support of the discretion rule is Brodnax v. Groom, 64 N.C. 244. That case involved the question as to what are the necessary expenses of a county. An act of the Legislature had been passed authorizing the commissioners of Rockingham County to levy and collect a special tax "for the purpose of building and repairing bridges in said county." The statute did not undertake to limit the discretion of the commissioners at all or to prescribe any formalities to be observed in the location of bridges, but left the whole proposition wide open. The Road Act of 1921 did not leave the whole proposition wide open, but prescribed the formalities by which the location of the road in controversy was to be determined by the defendant, and expressly declared that when those formalities were complied with in the selection and establishment of an existing highway as a connection between two county seats or principal towns that such selections should be and constitute "links or parts of the State System."
In the case now before us, no engineering difficulties or obstructions are alleged, and no reason given for abandoning the road, except that the defendant, in its discretion, desires to do so, because Robeson County loaned the defendant $1,000,000.00 under an agreement that route No. 22, from Lumberton to Rowland, should be built and a portion of route No. 70, from Lumberton to Fairmont, and that this sum is not sufficient to construct these roads, and also the road in controversy, according to the original plan, and, therefore, in order to come within the amount of the fund provided by Robeson County the defendant proposes to lop off a substantial portion of the road and consolidate it with No. 20. This Court has recently held in the case of Johnson v. Highway Commission,192 N.C. p. 561, commonly known as the Varina case, that neither the defendant nor the County Commissioners of Robeson County had the legal right to enter into a contract as to the location of the road. The Varina case contains a full discussion of the principle and the propositions of law therein contained, and will not be commented on here.
We, therefore, hold, upon the facts as disclosed by this record:
1. That the defendant is without power to divert No. 70 and terminate it at Pates, thirteen miles from Lumberton, because it has been mapped, established, accepted and incorporated as it exists as a permanent link or part of the State Highway System.
2. That the road, as proposed, does not run to and connect Lumberton as contemplated by the statute, and this requirement was mandatory, and therefore excluded any exercise of discretion in that particular.
3. The Legislature has determined that the five independent roads referred to constitute the contemplated service to the county seats. The defendant, in compliance with the formalities prescribed by law, has accepted and incorporated these roads into the State System, and it has no power to diminish or reduce the service by destroying and consolidating a separate and independent link or connection by which that service is to be delivered to the county seat.
4. We hold further that the termination of the road at Pates, thirteen miles from Lumberton, would constitute a disconnection forbidden by the law.
Therefore, we conclude that the judgment should be
Affirmed.