State Highway Department v. Marks

145 S.E. 866, 167 Ga. 397, 1928 Ga. LEXIS 164

• Court: Supreme Court of Georgia
• Decided: October 9, 1928
• Docket: No. 6674
• Status: Published

Opinions

Gilbert, J.

The first question to be determined under the issues raised is whether the superior court of Jefferson County had jurisdiction of the case. The briefs of both parties contain strong arguments, and each cites a number of authorities. Both, however, assert that their position on the question of jurisdiction is upheld by the case of Railroad Commission v. Palmer Hardware Co., 124 Ga. 633, 637, 648 (53 S. E. 193). That case was brought for the purpose of enjoining the Railroad Commission (now called the Public Service Commission) from putting into effect certain contemplated action. The Central of Georgia Railway Company was a party defendant. The suit was brought in Chatham superior court, and the jurisdiction of the court was brought in question. The opinion dealt entirely with the question of jurisdiction; and reference is here made to the elaborate and learned discussion there found. The court reviewed the decisions of this court and the history of the constitutional provision as to jurisdiction, beginning with the English law. The court said: “The test for determining the venue of an equitable action in this State is not made to depend merely on the technical name given the parties defendant. . . The commission not being a body corporate, if the venue of a suit is to be fixed with reference to the commissioners, it follows, under the constitutional provision already quoted, that it would •be in the county where one or more of the commissioners reside.” The present petition alleges that one of the highway commissioners resides in Jefferson County. Therefore, under the principles ruled in the case just cited, we think that the superior court of that county had jurisdiction.

The next question for determination is whether, under the law and the facts, the State Highway Board has already adopted and taken into the system of State-aid roads as much or more than 6300 miles, the maximum mileage allowed under the present highway statutes. The first act of the legislature fixing the maximum number of miles made the limit 4800. Ga. L. 1919, p. 242. This was changed by an amendment, and the maximum was put at 5500 miles. Ga. L. 1921,- p. 199. The second and last amendment fixed the limit at 6300 miles. Ga. L. 1925, p. 207. This is the present limit, unless there has been a change by implication because of the passage of some statute not dealing expressly with a limitation. It is insisted that the act of August 21, 1922 (Ga. Laws 1922, p. 176) permits the State Highway Board to extend the limit beyond 6300 miles. That entire act, omitting the caption and the enacting and repealing clauses, is as follows: “That provision o, section 5, article 5 of Georgia Laws of 1919, and amendments thereto, Act 1921, to reorganize and reconstitute the State Highway Department of Georgia and to prescribe its powers and duties, be amended by adding at the end of said provision, section, and paragraph the following: Provided, said State Highway Board is authorized to construct and maintain State-aid roads in and through towns or cities of not more than twenty-five hundred people.” It will be seen that the last-cited act makes no express mention of any limit of the number of miles that may be designated as State-aid roads. It merely purports to authorize the State Highway Board to construct and maintain State-aid roads in and through towns and cities of designated population. As we construe the act, it had no effect whatever upon the limit of mileage. There is nothing to indicate that the General Assembly had in mind the subject of mileage limitation or exempting roads built within municipalities from the limitation already prescribed. Such subjects are not mentioned in the act, and there can be no exemption thereby implied. It necessarily follows, according to our view, that the limit expressly fixed by statute was not modified by implication. Moreover, there appears to be a satisfactory reason and explanation for the passage of the act of 1922. The controversy over the right of the State Highway Board and the county commissioners of Lee County to build a road through the Town of Smithville had already arisen. Indeed, the case between said board and the County of Lee, through its commissioners, and the Mayor and Council of Smithville was already in the courts, though it had not been finally determined by this court. We have no doubt that the General Assembly, at its 1922 session, being aware of the litigation, wisely decided to remove all doubt on the question in so far as it might affect other eases of like character, while in session, rather than await the outcome of the ease pending in the Supreme Court or leave the existing doubt unsolved. The General Assembly realized, of course, that if the ease should be decided in favor of the Town of Smithville, which sought to enjoin the Highway Board and county authorities, the hands of the road authorities would be tied until a subsequent session. The act of 1922 was approved on August 21, 1922, and the Smithville case was decided by this court on November 23, 1922. Lee County v. Smithville, 154 Ga. 550 (115 S. E. 107). It was, therefore, not definitely known at the time of the passage of said act whether the Highway Board and county had the legal right to build such highways through municipalities. The Smithville case settled the question by a fullbench decision in favor of such authority. The decision means that the State Highway Board and the county authorities already had the legal right to construct a State-aid road through municipalities. The 1922 act, therefore, conferred no additional authority in that respect. At the time of its passage the legal limit of State-aid roads was 5500 miles, and 6300 is the present limit. Finally, it will be noted that subsequently to the pas'sage of the act of 1922 the General Assembly again fixed the limit at 6300 miles by the amending act of 1925. It has been the unchanging policy of the General Assembly, from the first act creating the Highway Board, to expressly limit the mileage of State-aid roads. For these reasons, we are of the opinion that the court did not err in holding that the State Highway Board, under the facts of the case, had already adopted the full limit of mileage allowed under the law.

Judgment affirmed.

All the Justices concur.