The district attorney, pursuant to an order of the board of supervisors of Hinds County, for the use of said county, filed a petition for mandamus against the State Highway Commission in the circuit court thereof, which was tried by the judge without the intervention of a jury, which was waived. Judgment was for the county, as far as the appraisement was concerned, and the Highway Commission appealed.
There was much pleading, but the case primarily dealt with the construction of Section 5004, Code 1930, Section 8036, Code 1942, and the meaning of "final location" of a highway in said statute. The appellee contended that
the location of Highway 51 through Hinds County was final in the sense of the statute, and the Highway Commission insisted it was not final; and the same contentions were made as to Highway 80 from the eastern edge of Clinton to the Warren County line. This issue involves also the question of whether demand had been made or was necessary to be made by the board of supervisors on the Highway Commission. It also necessitates the determination of the question whether we are called upon to decide a factual issue or to review the discretion of the State Highway Commission. The prayer of the petition for mandamus was that the Highway Commission be compelled to appraise and reimburse Hinds County for the value of the paving on said highways.
The purpose of the Stansel Act, Chapter 47 of the Laws of 1930, was to create a new Highway Commission for the purpose of establishing and maintaining a complete and coordinated highway system in Mississippi, and connecting with highways in other states so as to help form National highways. The Commission thus created consisted of three members, with ample powers, whereas the old Commission of eight members, superseded by the Act of 1930, had no powers and its only functions of value were as an intermediary between the Federal Government Bureau of Roads and the boards of supervisors, and advisory status as to the boards of supervisors in locating roads and letting contracts for the construction of roads in the respective counties. Such an arrangement obviously was a cumbersome and limited organization, with eighty-two different authoritative bodies in that number of counties in the state. This was because Section 170, Constitution of 1890, conferred exclusive jurisdiction over roads, ferries and bridges in the boards of supervisors, to be exercised in accordance with such regulations as the legislature might provide. In attempting a unified highway system in Mississippi, the legislature passed Chapter 173, Laws of 1914, which was held violative of this provision of the Constitution in that it attempted
to provide a method by which practically all jurisdiction of the boards of supervisors over roads, ferries and bridges would be withdrawn from such boards and vested in a road commission. Havens, Tax Collector, v. Hawes et al., 128 Miss. 650, 91 So. 397.
By Chapter 143, Laws of 1924, after an election authorizing such action, the Constitution was amended to provide that the legislature have the power to designate certain highways as state highways and place such highways under the control and supervision of the State Highway Commission for construction and maintenance. Pursuant to that authority, the legislation thereafter dealing with the subject may be found in Chapter 278, Laws of 1924, as amended by Chapter 218, Laws of 1926, and subsequent amendments, finally merging into Chapter 47 of the Laws of 1930, in which chapter Section 5004 was a part, same being now Section 8036, Code of 1942, in which Code the legislation governing is designated Title 30 and with the subject Highways. The pertinent statute, Number 8036, reads as follows, so far as the same is material to the consideration of this case: "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. Interest on the unpaid portion of the amount found to be due the local unit shall be included in the annual payments."
At the outset, we feel it necessary to say that in our judgment the resolution adopted by the Highway Commission some weeks after this suit had been instituted, many years after the highways in question had been completed, and several years after a majority of the board of supervisors had called on the Highway Commission then in session and asked appraisal, has no evidential value in this case and is ineffectual as an exoneration per se of the Highway Commission. If it should be determined that the law and the facts dehors the same justify us in reaching substantially the same conclusions therein expressed, since appellee joined issue in denial of the findings of fact and law in said resolution by appellant, then we should so decide on such law and facts as in any other case. With reference to the claim of discretion by the Highway Commission, the appellant cites many cases but we do not believe that they are authority against the conclusions we have reached with reference thereto, which is in harmony with our announcement in the case of State ex rel. Cowan, District Attorney, v. State Highway
Commission et al., 195 Miss. 657, 13 So.2d 614, 619, quoting from the case of Madison County v. Mississippi State Highway Commission, 191 Miss. 192, 198 So. 284, wherein it is said: "`If the statute invoked by the appellant is effectual to require the appellee to cause the appraisement to be made, then the circuit court is vested with full power under section 2348 of the Code, supra, to grant relief by mandamus on petition of the state, by its attorney general, or a district attorney, at least to the point of compelling the appellee to cause the links or sections of the highway referred to in the bill of complaint to be appraised, and may also punish as for contempt any refusal to obey its mandate under section 2353 of the said Code of 1930.'"
In the Cowan case the Court made this statement:
"It will be noted that the wording of Section 5004 is that, when the described conditions come about, `the state highway commission shall cause to be appraised the pavement on said highway', and, `shall pay' therefor. The word shall, directed as it is by the legislature to the creature of its own creation, the highway commission, is not doubtful; the command is positive and clear; it leaves no discretion in the Commission.
"It is also urged, as an intendment fairly deducible from the various statutes, that the Legislature intended to take over the county roads and bridges without paying anything therefor. The title to Section 5004 is `Reimbursement for pavement already constructed.' The section prescribes in detail the manner and the limits how and within which the reimbursements are to be made, including the method of handling outstanding bonds of the counties, rate of interest, etc. The statute would be without object and meaning if the asserted contention should prevail."
The case of Trahan et al. v. State Highway Commission et al.,169 Miss. 732, 151 So. 178, cited by appellant, declares nothing in conflict with the announcement in the Cowan case, in our judgment. In the Trahan case,
Pike County had constructed an old highway with many curves in it and improperly located, which the Highway Commission undertook to relocate, which was sought to be enjoined by adjacent property owners. Pike County was not a party and there was no question of reimbursement involved, and the road had never been connected with the paved highway, or utilized by the Highway Commission as part of its system.
The Court therefore held, since the Highway Commission had discretion in relocating highways, and the property owner had no other interest than such interest as common to other persons in the neighborhood, the property owner had no standing in court to object. In the case at bar, the highways concerned are the subject of a prayer for appraisement and reimbursement for paved highways connected by appellant with a state highway at both of its ends, which had been utilized for many years as a part of the state highway system. The other authorities cited by appellant we think need not be discussed as they seem equally inapplicable to the issue, since we are called on to determine a factual issue and not to review the discretion of the Highway Commission.
We cannot see merit in the point that Hinds County made no formal written demand upon the Highway Commission through its board of supervisors. The facts with reference thereto are that a majority of the board of supervisors of Hinds County in connection with their attorney, during the time when the board was in session, called at the office of the Highway Commission at a time when it was in session, and asked for appraisement and reimbursement. It does not appear in the record that minutes were made by either board, and the reply of the Highway Commission was in effect a denial of the application by the board of supervisors since it failed to grant the request when made, and subsequently took no steps toward making an appraisement, and then after suit was filed entered the resolution denying the relief sought by the county, and is now contesting this lawsuit
seeking the same. So far as has been called to our attention, there is nothing in our statute requiring such a demand by the board of supervisors from the Highway Commission, or that it should be made in writing, or that it should be entered upon the minutes of the board of supervisors or Highway Commission. In support of its position, appellant cites such cases as Wood, Secretary of State, v. State ex rel. Gillespie, District Attorney, 169 Miss. 790, 142 So. 747: which is a case involving mandamus filed by district attorney attacking the validity of a congressional redistricting act of legislature on the ground that it did not conform to the Act of Congress praying that the Secretary of State be compelled to disregard, in preparing ballots, any designations of candidates for Congress from districts. The question of demand was not of significance because the Secretary of State never having incurred the duty of printing statewide ballots, a cause of action had not arisen at the time mandamus was sought.
It was further testified by Mr. Kenna, the Director and an executive officer of the Commission, on behalf of appellant, that if this suit should be dismissed by appellee and demand made for appraisement it would be refused. The question becomes involved in the dominant issue in this case, and that is whether or not before the petition for mandamus was filed the right to the relief sought then existed, and it had then become the official duty of appellant to make such appraisement and reimbursement which had been refused. Anderson v. Robins, 161 Miss. 604,137 So. 476. It is manifest from the record that a formal written notice would not have availed appellee and the law does not require one to do a vain and useless formality. State ex rel. Davis, Attorney General v. Curtis, Judge, etc., 210 Ala. 1,97 So. 291; Ex parte State ex rel. Shirley, 20 Ala. App. 473,103 So. 68; Pugsley v. Sellmeyer, et al., 158 Ark. 247, 250 S.W. 538, 30 A.L.R. 1212; State ex rel. Exnicios v. Board of Commissioners of Port of New Orleans, 153 La. 705, 96 So. 539; Nolan, et al.
v. Boston Firemen's Relief Fund, 236 Mass. 420, 128 N.E. 715; Sovereign Camp, W.O.W., v. McClure, 176 Miss. 536, 168 So. 611,170 So. 293, and others.
This controversy being between two public bodies, the State Highway Commission and the board of supervisors of Hinds County, even though it should be held that formal written demand ordinarily is required, is not subject to any such rule here because the duty is of a public nature affecting the public at large. In such a case, no demand and refusal of the demand are necessary to lay the foundation for the relief asked by the petition for mandamus. People, ex rel. Busch, State's Attorney v. Green, Judge, et al., 281 Ill. 52, 117 N.E. 764. In the case of State v. Curtis, supra, the Court held that where the person aggrieved claims the personal benefit of the act or duty, whose performance is sought, demand and refusal are held to be necessary as a condition precedent to the relief by mandamus, but where the duty sought to be enforced is strictly of a public nature, there is no necessity for a literal demand and refusal, there being no one especially empowered by law to demand its performance. In such later situation, the law itself stands in lieu of a demand, and the omission to perform the required duty in place of a refusal. Therefore, we do not think that the appellant can complain of the absence of a formal written demand here. High on Extraordinary Legal Remedies, Par. 13.
Highway 51 starts at the Tennessee state line in De Soto County, north of Hernando, ending at the Louisiana state line, south of Osyka. Highway 80 begins at the Mississippi River bridge near Vicksburg and joins U.S. No. 11, ending at a point on the Alabama state line near Cuba, Alabama. Section 8024, Code 1942. They are primary roads. The highways involved in this lawsuit were constructed in the years 1926, 1927 and 1928 under contracts let by Hinds County, the funds thereof being furnished equally by said county and the Federal Government. Highway 51 north of the city limits of Jackson to
the Madison County line was paved with concrete in 1927, as it was south of Jackson from intersection of South State Street and Highway 80 to the Copiah County line. Following the passage of Chapter 47, Laws of 1930, Chapter 122, Code of 1930, Title 30, Code of 1942, this highway through Hinds County was integrated into a connected, completed and paved highway from the Tennessee line to the Louisiana line, according to the judgment of the trial court and the contention of the appellee, but contrary to the contention of the appellant, who contends there has been no final location thereof. It seems to be admitted by appellant that the part of Highway 80 involved here has been finally located except for about seven and seven tenths miles, which the Highway Commission says it intends to straighten.
The paramount question in this case is a factual one in our judgment, and not a question as to the discretion of the Highway Department. The fact to be determined is whether or not the highways involved in the due course of the construction program of the State Highway Commission have reached the time when connection has been made with such paved highway and same has become a part of a continuous paved state highway to be utilized as a part of the final location of the continuous, completed, paved highway so connected. The trial court held that such time had been reached before petition for mandamus was filed, and that the Highway Commission was due to make such appraisement, which they had refused and failed to do. We think the trial court was correct. We are of the opinion that the highways involved come within the statute and have been so for some time. The fact that a comparatively infinitesimal segment of Highway 51 here and there is being straightened, or repaved, or moved, to one side or the other, is a mere detail as to which the Highway Commission has discretion, and the exercise of this discretion would not be in conflict with our holdings here. It must be remembered that this highway system was completed many years ago, and these
roads integrated therein as a part of the planned highway construction in Mississippi. The claim by the Highway Department that it has never considered these highways finally located because at some time or other they had in mind a probable relocation of parts thereof, and to that end, as stated by their witness Kenna, they had been making surveys and maps and accumulating data for years, does not alter the situation even though during part of the period involved there was a "depression," insufficient funds and the difficulties incident to global war. The fact remains that paved Highways 51 and 80 taken over from Hinds County would have had to be constructed by the Highway Commission had they not already been constructed by said county, and that they have become what, in our judgment, is a final location in the completed highway system utilized by the public for a long period of time as a part of a continuous, completed paved state highway in each case. Nothing definite in all of this period of time has been done looking toward any substantial relocation, and the general public has been using the highways, so that the mere formation by the Commission of an inchoate theory of possible altered locations is still nebulous and has not progressed beyond nuances of indefinite cogitation, and certainly has not attained more than the uncertain status of a probe into speculative contemplation. Yet, for a long period, to all practical purposes, and by every practical, visible and convenient test, the location of Highways 51 and 80 has been final. In this connection, final does not mean forever. Here it is more analogous to "complete," and not like the laws of the Medes and Persians, changeless. A highway is more than a mere right-of-way capped with pavement. It is also a course of travel, here made so by statute, so that occasional variations, at intervals, from time to time, throughout the extensive length thereof, would not erase the finality of the location in the purview of this statute, when the pavement has once been so finally completed, as the evidence shows in this case.
This view is sustained, in our judgment, by the case of Wilkinson County v. State Highway Commission, 191 Miss. 750,4 So.2d 298. Details of alterations, of straightening and of replacing along or parallel with the same right-of-way, in the same general direction, would be, as stated, merely operations of maintenance and improvement within the completed system, and not indications of temporariness in the location of a highway, but only expedient variations, having a definite relation to the routes as designated in the act of the legislature and to the specific location by the Highway Commission, and not cancelling finality once attained under the statute and the facts, as here.
In the report of the Director of the Commission to the legislature at the 1944 session, prepared prior to the institution of this suit, it was said that Mississippi had over one hundred million dollar invested in our highway system, a pretty high price to pay for temporary locations for paved highways! It must be concluded that this is an indication of permanency subject to details of maintenance and change for rectification and improvement, as stated supra.
In the course of the testimony, the Highway Commission, by its witnesses, undertook to give a definition, from their viewpoint, of final location. Witness Kenna said this: "I would answer your statement this way, to say that a road is ever finally located fifty years or one hundred years, you cannot predict what is going to happen, but to me and our engineering personnel, a final location of a road is a road that now for the immediate present and for the predictable future there is adequate service for the traffic that utilizes that road." The word "predictable" there is rather cryptic, since no limit to its reach into the future is suggested. Had such prediction been made nearly a score of years ago, at the beginning of the period involved, that this highway would adequately serve the public far in the future, the present fulfillment of the prophecy would have justified it. And,
since the same utilization then started is still continuing the appellant, by resolution, adopted after the filing of this suit, cannot alter the factual situation that if by Mr. Kenna's definition it was a final location then, so proven by the course of events in the application of his word "predictable," it was to all practical and necessary purposes a final highway before the petition for mandamus was filed. Witness Monette offered this definition for appellant: "I would say a road is on its final location, after you have made a thorough study of all the conditions, and you had decided that the service was rendered, that it would be on its best location for the public, that it incorporated the latest safety features as to design, width and sight distances." Witness Craig for appellant defined location this way: "In respect to a road the final location in my opinion would be the location that would best serve the needs of the present traveling public, in addition to any public traveling that could be reasonably predicted for the future. That would be where it would be constructed." We are not so much concerned with such attempts at generic definitions of final locations as we are concerned with its meaning under the statute here involved. For the purposes of the statute, it seems to us sufficient to say that a highway is finally located when its route and construction are adequate for present and normally expanding traffic, and that possible subsequent expediency justifying alterations in the exact location of the pavement would not affect its already attained finality, as intended by Section 8036, Code 1942.
When would the incident of relocation, to which appellant's witnesses referred, take place under such definitions? Here, we have nearly a score of years intervening, with heavy traffic, and still none of the very vague cognitations of the Highway Commission have been implemented into any action. It would seem that this passage of time would have given them opportunity to take practical action within the limits of their definitions.
In our judgment, the highway came within the statute, and the time for appraisement had been reached before this suit was filed. Highway 51, therefore, long before this action was instituted, had become a continuous paved highway from the point on the Tennessee line to the point on the Louisiana line above stated, with the exception of one or two short links in its northern portion which, for temporary reasons, could not be finally paved. This may not be availed of to displace the operation of the statute, because, if allowed so to operate, the statute could be evaded by any Highway Commission through the single, simple device of leaving uncompleted a mile or two in a long highway. Therefore, to us it seems that Highway 51 had become at the time stated, and within the purpose of the statute, a "continuous, completed, paved state highway."
When Highway 51, in the due course of the construction program, reached Hinds County on the north and on the south, it was necessary to proceed through Hinds County and if the existing paved highway had not been there, then the Highway Commission would have been under the necessity, as a regular part of its construction program, to build such a paved highway from north to south through the county. But, instead of building its own paved highway through the county, when it reached the north and south boundaries thereof, it connected its construction at the boundary lines with the paved Highway 51, as theretofore constructed by Hinds County, and thereby made it a part of the continuous, paved highway from the Tennessee to the Louisiana lines. It is undisputed that it was then and ever since has been known and recognized as part of State Highway No. 51, not only by the Highway Commission but by all authorities having to deal with the subject and by the public at large.
But the Commission says that the link so used as a connection, and for all of this length of time, is not to be "utilized as a part of the final location of the continuous, completed paved state highway so connected." Because,
it says, that at some time in the future it is the purpose of the Commission to abandon that part of Highway 51 as now located in Hinds County and to relocate it so as to avoid the congested portion of the City of Jackson, although it is conceded that such purposes have not even yet reached any definite point of determination. As we have indicated supra, the question, upon which this case must turn, is what is meant in this statute by a "final location." Is it to be taken as meaning unchangeable for all time to come, as the Commission seems to contend? If so, it would mean that there never could be any such thing as a final location, and the statute would be without the dignity of any finite purpose whatever. Does it mean that there is no final location so long as the Commission, as presently constituted, says that there is none, which a Commission with a changed personnel may later repudiate, and yet from year to year the highway remains as it was when the statutory connection was made? If this may be answered affirmatively, as the Commission contends, then again there could never be any such thing as a final location, for any Commission could always resolve or speak it out of its character as such.
It is not within our province to consider this statute, or any other act of the legislature, as being merely an expansive literary composition. On the contrary, we must ascribe to it some real and practicable purpose, when and as viewed by men of sound judgment, addressing themselves to a practicable situation. When the continuous state highway was being completed, and in so doing, connection was made with the north and south links in Hinds County, that link was a paved highway, paved with the same character of durable material that the Highway Commission was generally using in its permanent work, and of a width sufficient to furnish safe lanes for passage in each direction. It was laid out upon reasonably straight lines, upon suitable and safe grades and grading, and free from dangerous crossings, and was
sufficient to carry the people of the state with convenience to or through principal points of business or social interests. We think practical men of sound judgment would say at the time of the connection that the link as it existed was suitable to be and become a link in a continuous state highway for a considerable time to come. It is, therefore, in our judgment, a part of the final location as meant by the statute, and the county was entitled to the appraisement for which it prayed.
The same reasoning and consideration and conclusion, in our judgment, must obtain as to Highway 80 from Clinton to the Warren County line and the same result reached.
We are convinced that even the definitions of "final location" by the witnesses for the Highway Commission are generically in harmony with our views as to "final location" specifically here, under the wording of the statute involved. Further, in dealing with the dominant question at issue, we are not controlling, or assuming to control, the discretion of the Highway Commission in locating or relocating highways, but we are saying, merely, that under the facts in this case, already passed, a "final location" was here shown as a fact.
Several other matters are argued but in our judgment are unnecessary to discuss, since we have reached the conclusion that the judgment of the trial court should be sustained, and there are no reversible errors in the record. Therefore, the judgment is affirmed.
Affirmed.