Up to the time of the advent of the automobile as a practical means of conveyance all the roads in the state, outside of municipal streets, were of a primitive type, none of them being paved, except for some few yards here and there in swampy places where planked corduroys had been laid or sometimes but in rare instances a few yards of concrete were used. Along the coast there was a considerable mileage of shell roads but these were soon found to be wholly inadequate as against automobile travel.
The automobile had come into large use in the state by 1910, and there arose a demand in many parts of the state that more adequate roads be constructed or reconstructed. In that year Chapter 149, Laws 1910, was enacted authorizing the creation of road districts under the supervision of district commissioners after surveys by competent road engineers employed for that purpose, all to
be subject to the approval or disapproval of the board of supervisors of the respective counties.
Under this Act many road districts were created and the preliminary work was done by them which later led to the broader field of state highways. The Act of 1910 was soon followed by other district enactments some of which undertook to place jurisdiction over the roads and the construction thereof entirely in the hands of the district road commissioners, but these acts were declared unconstitutional in State ex. rel. v. Board of Supervisors, 111 Miss. 867, 72 So. 700, and Havens v. Hewes,128 Miss. 650, 91 So. 397, on the ground that under Section 170, Constitution 1890, full jurisdiction over roads in the several countries was vested in the board of supervisors.
In 1916, fettered as it was by Section 170 of the Constitution, the legislature created by Chapter 168, Laws 1916, a state highway commission, which with the state highway engineer, to be appointed by the commission was to constitute the state highway department, the duties of which were "to consider and adopt plans for laying out opening, altering and working roads and building highways," the chief purpose being to act as an intermediary as regards federal road funds. In 1920, by Chapter 203, Laws 1920, a state highway department was created with broader duties and powers among which was "to cooperate with the boards of supervisors and district road commissioners, of the respective counties in the surveying, laying out and adoption of a state highway system." It was further provided that the powers of the state highway commission are advisory to the board of supervisors whom the commission may assist with its engineering force "in establishing, locating, surveying and building roads, culverts, and bridges, in the system of state highways and inter-state roads . . . and it may pay part of the construction costs of such highways from its current funds and may assist in the building of said roads, culverts and bridges from any of its funds, either those derived from the state or national government."
In this Act, chapter 203, Laws 1920, there was the beginning in point of actuality of the state highway system. At the same session a constitutional amendment was proposed to amend Section 170 of the Constitution so as to remove the jurisdiction of the boards of supervisors. This proposed amendment was too broad, and another was proposed at the session of 1922 which was adopted by the people and was inserted in the Constitution by Chapter 143, Laws 1924, whereupon Chapter 278, Laws 1924, was enacted, designating certain highways as state highways and placing them under the jurisdiction of the state highway department. All the highways concerned in the case now before us are within the designation mentioned.
There was no provision in the Act of 1924 for the construction or reconstruction of any of the highways by the state. It provided for maintenance only so far as the state was concerned. From 1924 to 1930 no important state highway statutes were enacted. What happened was that although there was general agreement that the state should pay the entire cost of the construction or reconstruction of the designated state highways, the type of pavement to be used became the subject of partisan political controversy so that it was not until 1930 that a comprehensive and adequate statute for the conversion of the state highway system into one of modern paved highways was enacted.
In that year by Chapter 47, Laws 1930, a comprehensive statute to the ends aforesaid, under the leadership of Horace Stansel, a member of the lower house who was a competent road engineer, was passed, now known as the Stansel Act. After designating the highways that were to be considered primary state highways, the Act, as a dominant expression of its purpose, declared that such primary highways "are hereby placed under the supervision and control of the State Highway Commission for construction, reconstruction and maintenance at the cost and expense of the state." As already stated,
there had never been any difference of opinion that the cost of the construction and reconstruction incident to the conversion of the old highways into modern paved highways should be at the cost and expense of the state, so far as the primary highway system was concerned.
But none of the previous enactments had placed any sufficient funds in the hands of the state highway department by which it could construct or reconstruct any of the roads in the state highway system. All that the department had was a portion of the gasoline taxes and of the road privilege taxes, sufficient for little more than the cost of maintenance. Nor did the Stansel Act provide any additional funds, the fact being that when the Stansel Act was passed in 1930 the profound depression that was soon to prostrate the finances of the state and entire country was plainly to be foreseen. It was not until 1936 that state funds for construction and reconstruction were provided.
It was foreseen or anticipated when the Stansel Act was passed that certain counties might be in a financial position, and would desire, to convert certain of its old roads in the primary system into modern paved highways before the time when the state could or would furnish the money so to do. Accordingly there was inserted in the Stansel the following section, now Section 5003, Code 1930, Section 8035, Code of 1942:
"Should any county desire to complete all or any part of the primary system of highways, as set out in this act, which lies in its borders at an earlier date than traffic demands and the regular order established hereunder would construct same, and if the revenues of such county from unpledged gasoline and motor vehicle privilege taxes are of such amount that half of such revenue will pay the interest and sinking fund of serial bonds needed for such construction, such bonds may be issued, as is now provided by law, for counties having 50,000 population, as general obligations of the county, and such gasoline or privilege taxes may be used to pay the interest and sinking
fund of same, or if the county shall desire to issue general obligations of such county to be retired by ad valorem levy according to general law, then the county may issue highway bonds for such purposes in the manner and method provided by law. The proceeds from such bonds shall be placed in a special fund for the purpose of paying the cost of construction of such portions of the primary system in such county, and such county may proceed to construct such highways in the manner prescribed by law. Such work shall be done, however, only with the permission and approval and under the supervision of the director, subject to the approval of the state highway commission, who shall decide the location, width of right-of-way and shoulders, type of paving, width and thickness of same, and the location, size, and construction of drainage openings.
"Whenever in the due course of the construction program of the state highway commission the time shall be reached when any paved highway or section thereof constructed under this provision would have been regularly constructed as a part of such program, and connection is made with such paved highway or section thereof, and same becomes a part of a continuous paved state highway, the commission shall cause the same to be appraised as provided in the section of this act providing for reimbursement of local units for pavement already constructed. The local unit shall thereupon be reimbursed in the amounts and according to the methods provided in that section."
At the time of the enactment of the Stansel Act a number of counties and road districts had already paved certain of their roads within the primary system either under the supervision of the state highway department and according to plans and specifications furnished by the department or under such plans and specifications and types of construction as to accord with the average of the modern paved highways constructed or reconstructed under the immediate direction of the state highway department.
In order that the counties and districts which had so done should suffer no discrimination in the matter of costs and should be brought into equality with the majority of the counties which had done nothing towards modernizing their highways, the following additional section was inserted in the Stansel Act immediately following the section next heretofore mentioned, the section being Section 5004, Code 1930, Section 8036, Code 1942:
"Whenever in the due course of the construction program of the state highway commission the time shall be reached when any paved highway or section thereof heretofore built in whole or in part at local expense would have been regularly constructed as a part of such program, and connection is made with such paved highway and same becomes a part of a continuous paved state highway, the state highway commission shall cause to be appraised the pavement on said highway, or the portion or portions thereof that it is to be utilized as a part of the final location of the continuous completed paved state highway so connected. Such appraisal shall take into consideration the original cost of such pavement and the wear, depreciation and deterioration of same, and the state highway commission shall pay to the local unit at whose expense the road was constructed the proportionate part contributed or paid by said local unit represented in the then existing appraised value. Such payment may be made under such terms as may be agreed upon with the governing body of such local unit, but in no case shall reimbursement be made in less than ten nor more than twenty approximately equal annual payments. In the event highway bonds of such county or district are outstanding, the commission may pay to such local unit semi-annually a sum sufficient to meet the payment of principal and interest due on the outstanding bonds, subject to the above limitation, until the total sum ascertained to be due shall have been paid. Should any surplus then remain, annual payments shall be made in sums amounting to not more than one-tenth of the total amount first ascertained
to be due and not less than one-twentieth of such amount, until the total sum found to be due shall have been paid. . . ."
In this section it will be noted that the appraisement there mentioned is "the pavement on said highway." The highway department takes the position that it is not authorized to appraise anything except the paving slab, and no bridges, while the counties contend that it embraces the entire roadbed, including rights of way and all bridges. Many authorities are cited by the counties wherein the term "pavement" as used in analogous statutes has been held to include not only the pavement slab, but everything necessary to support it, and that where a bridge is a necessary connecting link to make the pavement usable, the bridge is included. No authority in point is cited by the highway department to the effect that a pavement in such a statute means no more than the pavement slab. The numerous cases cited will appear in the reporter's abstracts of the briefs. The highway department argues that none of the cited cases deal with the precise language here — "pavement on said highway."
It was well said, we think, in Muff v. Cameron, 134 Mo. App. 607, 114 S.W. 1125, 1126, 117 S.W. 116, that the meaning of the term "pave" or "pavement" will depend upon where, and the connection in which, it may be used." In Hoefer v. City of Milwaukee, 155 Wis. 83, N.W. 1038, 1040, it was held that the word "pavement" includes all things necessary to make a level surface for horses and foot passengers of any convenient material "and all necessary excavation or filing to prepare the surface and the removal of obstacles as well as laying the paving stones or other surface material." If this were adopted, it would support the contention of the counties in their entirety.
We must look, however, to the entire statute, the whole of the Stansel Act, including previous legislation and all the surrounding circumstances, and above all to the dominant
purpose and intention of that Act. It is the firmly established rule in this state that in construing statutes, not only the language, but the purpose and policy which the legislature had in view must be considered, and the Court, in interpreting the statute, will give effect to such purpose and policy though the interpretation may go beyond the letter of the statute. Sheffield v. Reece, 201 Miss. 133, 28 So.2d 745, 749, citing Smith v. Chickasaw County, 156 Miss. 171, 179, 125 So. 96, 705; Zeigler v Zeigler, 174 Miss. 302, 310, 164 So. 768; Gandy v. Public Service Corp., 163 Miss. 187, 197, 140 So. 687. And, equally obligatory on the Court in construing such a statute is to interpret it, so far as practicable, so as to treat every county alike and to avoid discrimination and favoritism as between one another. Holland v. State, 151 Fla. 526, 10 So.2d 338. Cf. Quitman County v. Turner, 196 Miss. 746, 760, 18 So.2d 122. Indeed, the Court would have no jurisdiction to entertain the present cause under the doctrine of the prevention of a multiplicity of actions, except for the fact that in entertaining this combined suit, the court, in the interest of the public, is enabled to implement the maxim that Equality is equity.
We have already noted that the dominant purpose clearly expressed in the Stansel Act was that all these primary highways should be constructed and reconstructed into modern paved highways "at the cost and expense of the state." Manifestly, it was the purpose of the two quoted sections of the statute to arrange it so that every county would be treated alike with no discrimination for or against any county of the state in the matter of cost and expense.
Five counties took action under Section 8035. These were Coahoma, Jones, Lauderdale, Newton, and Leflore. Coahoma may be taken as typical. Coahoma raised and deposited $100,000 with the state treasurer to the credit of the state highway commission in April 1931 and a like sum in May 1932. The state highway department took this money and spent all of it in constructing and reconstructing
the primary state highways in Coahoma county, of which, however, only $94,385 went into the laying of the pavement slabs, and this is all that is to be appraised for reimbursement to Coahoma County as the highway department contends, which means that $105,615 of Coahoma County's money went into construction and reconstruction for which it is to get nothing back, and which means again that instead of the state paying all of the costs of constructing and reconstructing the primary state highways as was the express purpose of the Stansel Act, it would pay only a part of it in Coahoma County thus upsetting the obligatory requirement that all counties shall be treated alike without discrimination between them.
The Court is obliged to avoid any such discriminatory construction if any other reasonable interpretation is available, and we think there is. We think that the phrase "pavement on the highway" was a short-cut expression designed to exclude the interpretation as regards the constructing or reconstructing the old improved county highway into a modern paved highway, that anything of the old unpaved highway which was then there and which was used in the construction or reconstruction should be appraised. So, then, by the phrase "pavement on the highway" was meant to include whatever was necessary to put on the old unpaved highway in order to make it a modern paved highway — it meant that which was necessary to do in order to convert the old unpaved highway into a modern paved highway and to appraise on behalf of the county for such part as the county had in that conversion less the depreciation which had occurred from the time of the conversion until the converted paved highway became a part of the continuous state highway system. Any other interpretation would be to repudiate the dominant purpose expressly declared in the Stansel Act to convert the old county road system into a modern state highway system at the cost and expense of the state, and would work a gross discrimination
between the counties and infavor of those which had not put up a cent of their own funds in the conversion in their counties.
Our judgment is then that what was produced in that conversion by the $105,615, paid in by Coahoma County must be appraised as well as the $94,385 which went into the pavement slab and that the same formula is to be applied to Jones, Lauderdale, Newton, and Leflore, which means that bridges constructed or reconstructed in the conversion are not to be excluded. The appraisal date has been fixed by agreement as to the above counties, except Newton, and this Newton County date must be settled by the trial court.
We have assumed that the old highways in the foregoing five counties had previously been brought up to the standards presently to be mentioned and had been accepted by the highway department for maintenance, else the department would not have entered upon the work of their construction and reconstruction.
By Section 2, Chapter 278, Laws 1924, it was required that the counties through or into which ran the state highways designated in that chapter should each bring up the highway or highways within its borders to the standard which the state highway department was authorized to prescribe and that until this was done by the county, both as to roadway and bridges, the state highway department would not take over the highway in that county although designated as a state highway — another manifestation of the policy of equality of treatment pursued in all these statutes. The unpaved highways, including the bridges, thus brought up to standard and accepted for maintenance we will denominate as the old highways, the cost or value of which as they existed when taken over for maintenance is not to be included in any appraisement. This was what the counties and all of them equally had to put in as their part towards the modern program and to allow appraisement upon any other basis than as above stated would be to discriminate
against counties which had brought their roads up to standard but had done no paving.
But whatever was necessary or proper to put upon these old highways thus described in order to convert them into modern paved highways should be appraised less depreciation as has been outlined as regards the five counties heretofore mentioned. And if under the plans, specifications, and directions of the state highway department any segment or part of the old highway and the old bridges were abandoned and a new segment and new bridges were constructed at county expense, the new construction and the new bridges should be included in the appraisement. Also the cost of any new rights of way.
As to the old highways converted into modern paved highways before 1924 but after 1920, a more difficult problem is presented, for in such cases there were no highways which had been taken over as up to standard and accepted for maintenance by the highway department, the duty of maintenance previous to Chapter 278, Laws 1924, being upon the counties. There having been no accepted highways brought up to standard before 1924, we are without any certain basis for the calculation of what was necessary or proper to put upon the old highway to convert it into a modern paved highway.
Therefore, as to the highways mentioned in the next foregoing paragraph, it would seem that the only practicable course to pursue would be to appraise only the pavement slab plus the subgrade immediately supporting it where the old roadbed was used, but allowing the entire cost, less depreciation, where under the plans and specifications of the highway department a new roadbed, upon new rights of way and with new bridges, were constructed, abandoning for the new segment the previously existing roadway and bridges.
As to paved roads constructed before 1920, if any there were, a still further difficulty would be presented because these were paved as county highways, not as state highways, there being no state highways recognized as such
by legislation until the Act of 1920, and they were not paved under plans and directions of the state highway department. But we cannot tell with certainty whether in fact any claims presented here were for construction before 1920, and we therefore express no opinion as to that class, if there are any.
It is seen that as to the highways paved by the counties before 1930, there are three classes: (1) Those paved after 1924; (2) those paved between 1924 and 1920; and (3) those paved before 1920, if any there were of the latter. A considerable amount of labor has been performed by the attorneys or some of them in presenting data upon the three subjects. But in spite of this, the data as to some of the counties is imperfect or incomplete in the following particulars: As to some of the counties apparently in class (1), it is not shown when the highway was taken over for maintenance by the highway department and whether the entire work of conversion was done after that date. As to some counties it is not shown when the work for which appraisal is claimed was done and whether they fall in class (1) or in class (2) or in class (3), or whether partly in one class and partly in another. Other pertinent data necessary to apply what we have heretofore said in principle is missing, to the extent that no decree certain in all its parts could be rendered. This data should be presented on the hearing following the remand which we are ordering.
As to bridges in the foregoing classes (1) and (2): We have said in State ex rel. v. State Highway Commission, 195 Miss. 657, 682, 13 So.2d 614, 619, dealing with the bridge over the Bay of St. Louis between Hancock and Harrison Counties, which was built as an entirely new bridge by the two counties under Chapter 512, Loc. Laws 1924, that this was a necessary link in Highway 90, and that "but for its existence the Commission would have had to construct it in carrying out the mandate of the Legislature to take over, construct and maintain Highway 90 as a primary road across the State." The commission
now says there is no pavement on this bridge, and that inasmuch as the bridge constitutes a segment as to which there is no "pavement on the highway," the bridge is not to be included in the appraisement. We have already said that pavement on the highway includes whatever was necessary to put upon the old highway or upon any new segment constructed in lieu of one in the old highway, and in effect that whenever it was necessary in the conversion program to construct a new bridge or to take out an old one and build a new one in its place the new bridge in its entirety should be appraised, in the proportion that the county or counties contributed thereto, and we now add that it is immaterial whether the new bridge has a pavement slab on it or not. This then will include also the bridge over the Bay of Biloxi between Harrison and Jackson Counties, and the new bridge over the Yazoo River on Highway 49 in Leflore County, and the new bridge across the Tombigbee River in Monroe County, to mention only the more important ones.
We now add further that when any bridge in the old highway could be utilized in part in the program of conversion and was so utilized, only the part added thereto or the part put into the conversion should be appraised, and that when any bridge in the old highway is totally abandoned, or left to one side, it is not to be included in any appraisement, as, for instance, in the cases of the abandoned bridges in Yazoo County. And wherever any bridge whatever its modern qualities may be which has been constructed by the county but on a highway which has not yet become a continuous state highway, the appraisement of such a bridge must await until the statutory time for the appraisement has arrived.
Between and during the years 1924 and 1926, Hancock County furnished to the State Highway Department a sum in excess of $217,000, which was used by the department for the grading, drainage, bridges and gravel surfacing of several miles of new highway construction on State Highway 90-11 and 11 in that county, the route
therefor having been laid out and surveyed by the state highway commission itself on new ground as best we can make out from the agreed statement of the facts. But the laying of the pavement surface on the highway thus constructed was later done by the highway department, no part of the cost of the paving slab having been paid by Hancock County. The highway department now says that since the paving slab was not laid by Hancock County, none of the work preparatory thereto is subject to appraisement.
We have already said that "if under the plans, specifications and directions of the state highway department any segment or part of the old highway and the old bridges were abandoned and a new segment and new bridge were constructed at county expense, the new construction and the new bridges should be included in the appraisement." This is not to be avoided by taking the county's money to do everything on a new route except the laying of the pavement slab and merely because the county did not lay that slab then repay it nothing. This instance is enough within itself to demonstrate the unsoundness of the technical contention that in all cases nothing but the pavement slab should be appraised. What was done by the County on the segment or sections next above mentioned should be appraised except as to that part which is within the municipal limits of the City of Bay St. Louis.
We agree with the trial court that Section 4999, Code 1930, Section 8025, Code 1942, as to the use of material on which there is paid a royalty or patent right, has no application to such material used prior to the date of the passage of the Stansel Act.
Several municipalities have propounded claims for appraisement and reimbursements for streets constructed before 1930 at the expense of the municipalities and which streets by connection at the municipal limits are now utilized as a part of continuous state highways, and they point to the provision in Section 8036, Code 1942,
Section 14, Stansel Act, providing that "whenever in the due course of the construction program of the state highway commission the time shall be reached when any paved highway or section thereof heretofore built in whole or in part at local expense would have been regularly constructed as a part of such program, and connection is made with such paved highway," appraisement shall be made of said section so constructed at local expense and in favor of the local unit.
This sends us at once to see what the state highway commission was to do or could do within municipalities as a part of its regular construction program, and for this we find that the only authority in the Stansel Act given to the commission in that respect is in Section 15 of the Act, Section 8037, Code 1942, which empowers the commission to construct a state highway through any municipality of less than 2,500 in population, or along such portions of the streets of municipalities of more than 2,500 in population "where the houses average more than two hundred feet apart for a mile or a fraction thereof, beginning at the corporate limits." Compare Federal Highway Act and 23 U.S.C.A. Sec. 2.
It follows, therefore, that the Act did not authorize the highway commission to construct a highway through any municipality of 2,500 in population or more, with the exception as to sections therein wherein the houses average more than 200 feet apart — which municipalities we will class as Class A — and having no such authority such construction could not be a part of its regular construction program, and such municipalities are not within Sections 8035 or 8036.
What is to be done, then, with municipalities of less than 2,500 in population, or where they have constructed sections wherein the houses were more than 200 feet apart beginning from the municipal limits — and which we will class as Class B — when the work had been done thereon before 1930? They argue that it would unjustly discriminate against them were they denied appraisement and
reimbursement, when in such cases the highway commission would have had to do this work at state expense had the municipalities not done it. This at once presents the further question as to what is to be done with municipalities of the same class which have constructed paved streets since 1930 and which since the construction have been utilized by the highway commission as links in the state highway system. It is contended by the highway department that these latter are not within Section 8035, which provides reimbursement for sections or links constructed since 1930, for that section, upon a casual examination, would seem to provide for appraisement and reimbursement only to counties. If, then, appraisement is allowed to municipalities of the class now under consideration, that is Class B, for construction before 1930 and not to those who have done the same work since 1930, then a palpable discrimination and inequality would be worked against the latter municipalities. This discrimination and inequality could be avoided as between Class B municipalities by holding that municipalities are not included within Section 8036, Code 1942; that they are not local units as meant in that section, and that the section itself limited the local units to "county or district" units.
But there we are confronted with Section 2407, Code 1930, Section 3412, Code 1942, which makes each municipality a separate road district, so that we cannot read Class B municipalities out of Section 8036. And if nevertheless we were to say that none of the Class B municipalities is within either Section 8035 or Section 8036, the result would be that the municipalities of that class which have done this construction work would be discriminated against in favor of municipalities of the same class which did nothing but waited for the highway department to do it at state expense under Section 8037. No such an inequitable result could have been contemplated by the legislature. And we think the legislature did take care of the precise situation by the concluding
sentence of Section 13, Stansel Act, Section 8035, that sentence being: "The local unit shall thereupon be reimbursed in the amounts and according to the methods provided in that section," this reference being to the following section, Section 14, Stansel Act, Section 8036, Code 1942. If it had been the intention of the legislature to limit Section 8035 to counties only, the term used in the quoted concluding sentence would have been "counties" instead of "local units." We hold, therefore, that Class B municipalities are within both Sections 8035 and 8036.
As to municipalities in Class A, they are not included under the Federal Highway Act, 23 U.S.C.A. Sec. 2, in force since 1921. Municipalities of that class in constructing paved streets are justly considered as doing so primarily for municipal purposes and as a legitimate part of the municipal burden and obligation, not to be shared at state expense, it being sufficient from an equitable standpoint that the state will maintain such streets therein as are used as state highways, and this is done by Section 8056, Code 1942.
Finally, we must call attention to the fact that, in the main, the decree in this case is a mere statement of applicable principles but leaves them open to be applied accordingly as the facts may be worked out by the parties or as the parties may construe the facts. And now in attempting to review it we are referred to an enormous series of plats and drawings, with complicated figures on the numerous plats or drawings, and rarely have the briefs, in dealing with a particular county or local unit gone into the necessary detail to show exectly and what completely is the precise issue or issues and all the issues a to the particular county or unit. We call attention to Griffith Miss. Chanc. Prac., Sec. 625 et seq., and Todd v. Todd, 197 Miss. 819, 829, 20 So.2d 827, and compare Crawford v. State,162 Miss. 158, 138 So. 589.
We can see that this has been brought about by the fact that the larger issues with which we have hereinabove dealt drew the attention of the litigants to the exclusion
or partial exclusion of the subsidiary details. The latter, however, are not to be laid aside when they have an essential part in the requisite elements of a final decree. The Supreme Court has appellate jurisdiction only, and is not authorized to piece out a decree by making findings of facts. We have covered the general principles to be applied on a rehearing and we remand the cause that the trial court may make a decree which shall be complete, definite and certain as to each county and local unit in accordance with the principles hereinabove outlined; and if as to any point which may be supposed to have been covered in the decree but which is not also covered in the foregoing opinion, we state that we have not dealt with any such point and have made no adjudication on it.
Reversed and remanded.
Smith, C.J., did not participate in this decision.
DISSENTING OPINION.