Town of Newton v. State Highway Commission

133 S.E. 522, 192 N.C. 54, 1926 N.C. LEXIS 224

• Court: Supreme Court of North Carolina
• Decided: June 9, 1926
• Status: Published

Opinions

STACY, C.J., dissenting; ADAMS, J., concurring in dissenting opinion. The following judgment was rendered:

This cause coming on to be heard before me at Chambers at Shelby, N.C. on 10 May, 1926, upon a temporary restraining order issued 27 April, 1926, by his Honor, Thos. J. Shaw, a judge of the Superior Court of North Carolina, by the terms of which the defendant was enjoined and restrained from awarding any contract or contracts for the grading of a road between Statesville and Newton along the proposed new route indicated specifically by the yellow lines on plaintiffs' map, Exhibit A, and from building bridges upon said route, and being heard, and all parties in interest being represented by counsel, and after full and careful consideration of the pleadings and affidavits offered, as well as the argument of counsel, the court finds as follows:

1. That two routes were surveyed for the location of the road from Statesville, the county seat of Iredell County, to Newton, the county seat of Catawba County, and these two routes are indicated on the map, plaintiffs' Exhibit A, the southern route being indicated by the red line and the northern route by the yellow line.

2. The southern route follows in a general way the present road between Statesville and Newton, and is shown on the map, which is part of chapter 2, Public Laws of 1921, indicating the designation and adoption of highways in North Carolina constituting a part of the State Highway system, and the same has hitherto been accepted by the State Highway Commission and taken over and is now maintained as a part of route 10 of the State Highway system. The distance from Statesville to the courthouse in Newton over the southern route, according to the survey made by the defendant, would be 22.81 miles, and the road would cross the Catawba River on the double track steel bridge constructed across this river under State supervision a few years ago. This road would enter the town of Newton in the southeastern portion and pass by the courthouse and along the principal street through the center of the town, and thence to Hickory over the present hard-surface road from Newton to Hickory.

3. The northern route, as indicated by the yellow line on the map, which the defendant has adopted and purposes to build from Statesville to Newton, does not go over any part of the present road between Statesville and Newton after leaving the corporate limits of Statesville and crosses the Catawba River several miles north of the present steel bridge and enters the town of Newton just inside of the corporate limits of said town on the northern side and at a distance of about 1 1/8 miles from the courthouse and connects with the Newton-Hickory hard-surface road at that point, and route 10 proceeds from this point in a northerly direction over the present hard-surface road to Hickory. The distance from Statesville over the yellow route where it connects with the Newton-Hickory road, and following this road to the courthouse in Newton, is 21.42 miles, making a difference in distance on the northern route over the southern route of 1.39 miles between Statesville and Newton.

4. The cost of grading and constructing the road on the northern route would be less than on the southern, but if the southern route was adopted it would not be necessary to build a new bridge across the Catawba River; whereas, on the northern route it would require a considerable expenditure to build the bridge across the Catawba River. If the northern route should be built there is no barrier to prevent an entrance to the town of Newton so that route 10 could pass by the courthouse, or through the center of the business or residential section of Newton, and still connect with the present hard-surface road from Newton to Hickory.

5. The road from Statesville to Newton is a part of route 10, one of the great thoroughfares of the State, and if it is so constructed as not to pass through the town of Newton, but merely to skirt the northern boundary of said town, it would deny to the town of Newton the benefits and advantages arising from the heavy through traffic passing over this State thoroughfare and from the legitimate advertising that the town would get as a result thereof, and would deprive this flourishing and growing county seat of the benefits which accrue to a town being situated and located on the main line of travel, and this would result in irreparable injury and damage to the town of Newton.

Upon a careful review of chapter 2 of the Public Laws of 1921, establishing the State Highway Commission and providing for a system of State highways, it is manifest that the General Assembly had a dual purpose in mind, to wit, (1) That of creating a State system of highways, and (2) that of constructing the highways so that it would form a county-seat to county-seat system.

In order to enable the Highway Commission to properly function it was necessary to confer upon the commission broad discretionary powers, and with this purpose in mind the Legislature lodged the ultimate power and authority in the commission to locate the roads which constitute the State system, and gave it the power to change, alter, add to or discontinue any of the roads forming a part of the road system, as shown on the map which was made a part of the act of 1921. But there was one qualification and limitation of this power. It appears in the proviso at the end of section 7 as follows:

"Provided, no roads shall be changed, altered or discontinued so as to disconnect county seats, principal towns, State or national parks or reserves, principal State institutions and highway systems of other states."

Manifestly the commission is clothed with the power and authority to make such changes in the location of State highways as it may deem wise, in its sound discretion, subject to the limitation placed upon it by the foregoing proviso, and the court has no power to designate locations or determine routes. However, the terms of the proviso are positive and mandatory, and not uncertain or discretionary. In the exercise of a legal discretion they may determine whether a road shall be changed, altered or discontinued if they observe the mandate of the proviso. Therefore, the question in the case is: Has the commission complied with the intent and meaning of this proviso by changing the route of the road from Statesville to Newton so that, instead of running from county seat to county seat, it runs from the center of Statesville to a point just inside the corporate limits of the town of Newton and one and one-eighth of a mile from the courthouse or center of town, leaving the whole town of Newton to the south, and continuing as a part of route 10 in a northerly direction to Hickory?

The answer to this question can only be obtained by an interpretation of the meaning of this proviso, and, in order to properly interpret the proviso, an effort should be made to arrive at the true legislative intent. Where this intent is not clearly expressed it is always presumed that a statute was intended to have the more reasonable and beneficial operation permissible from the language used, and the effects and consequences of the one construction or the other may be resorted to as important aids in determining the intent and meaning. The Legislature clearly provided that county seats should not be disconnected. The building of a system of roads from county seats to county seats must have some definite situs or location. The distance from one town to another is measured by the distance from the center of each town and not from the outside corporate limits.

Another rule of interpretation is that the intention of the lawmaking power is to be ascertained by a reasonable construction of the act and not one founded on mere arbitrary conjecture. Applying the well known principle of construction to this proviso it seems that the Legislature was jealous of the rights of county seats and principal towns, and made a special exception in an effort to secure to them their rights with reference to the location of highways. I must believe that the Legislature intended by this proviso to do more than require that the roads should come inside the corporate limits, and leave the whole town untouched by a great through line of traffic. Coming just inside of the corporate limits of a town is not coming to town, and it is not so understood in the ordinary affairs of life. It is a matter of common knowledge that the State highways generally run through the county seats and principal towns and not merely skirt the outside limits, and I cannot hold that the proposed location of this road as it enters the town of Newton is a compliance with the terms of the proviso of the statute, or that it is in harmony with the legislative intent.

The court cannot direct the location of the road and has no disposition to hinder or delay the construction of this important link in route 10, and therefore modifies the restraining order heretofore issued to the extent that the portion of the road situated in Iredell County is hereby released from this injunction and restraining order, but continues the restraining order and injunction in full force and effect as to that portion of said road located in Catawba County, and the defendant, its agents and servants, are hereby permanently restrained and enjoined from awarding any contract or contracts for the grading of said road or building of said bridges along the proposed route from the Catawba River to the town of Newton, as indicated substantially by the yellow lines on plaintiffs' map, Exhibit A.

From the foregoing judgment the defendant appealed. Chapter 2, Public Laws 1921, commonly known as the Road Act, when stripped of all bare technicalities and thin-spun discriminations, creates certain unmistakable objectives. These objectives may be classified as follows:

First. A certain type of public service for the people of the State to wit, "the development of agricultural, commercial and natural resources of the State." Second. For the purpose of making this service effective there was created a definite instrumentality, to wit, a Statewide system of highways of approximately fifty-five hundred miles "of hard-surfaced and other dependable roads." Third. In order that there might be no confusion as to the immediate objects of this service the act designated them by name, to wit, all county seats, all principal towns, State parks and principal State institutions. Fourth. The highway system should serve these designated institutions by the most "practical routes."

Let it be observed in passing that the service by the highway system to the designated institutions is the controlling idea, and the "practical route" is subordinate to the larger idea of the service to be rendered.

To the end that there might be no uncertainty as to how the highway system should be made up, the Legislature adopted a map showing in detail the roads which it proposed should "constitute the State highway system." The map, therefore, became as solemn and binding legislative declaration as any other paragraph, phrase or clause of the road law.

Having defined the service to be rendered, and having created a system of roads as an instrumentality for promoting and guaranteeing the service contemplated, and having designated the immediate objects of the service, the Legislature created an administrative body known as the Highway Commission to execute its program so formulated.

Realizing that in order to execute with economy and efficiency the program of improvement, it delegated certain discretion to the Highway Commission in these words: "The roads so shown can be changed, altered, added to or discontinued by the State Highway Commission." Realizing further that this discretion, so delegated, should be limited and safeguarded, in so far as it affected the immediate objects of the service to be rendered by the road system, the Legislature said, in effect, that no road serving a county seat should be altered or discontinued so as to withdraw therefrom the service of the highway system.

The exact language of the limitation is: "Provided, no road shall be changed, altered or discontinued so as to disconnect county seats," etc.

Acting in obedience to power conferred upon it by the road law, the defendant, Highway Commission, adopted as a part of the State highway system the road between Statesville and Newton and took charge of said road and maintained the same as a part of route 10. This road entered the town of Newton in the southeastern portion and passed by the courthouse and along the principal street through the center of the town, and thence to Hickory over the present hard-surfaced road from Newton to Hickory. The defendant now proposes to abandon this road and to construct a new road from the center of Statesville to connect with the hard-surfaced road running from Newton to Hickory. This proposed road would enter the town on Newton just inside of the corporate limits of said town on the northern side, and at a distance of about 1 1/8 of a mile from the courthouse. The plaintiff thereupon instituted this action to restrain the defendant from constructing said road in the manner proposed, alleging in substance that the new road was a total abandonment of the present road, and, in addition thereto, that the new road, as proposed, skirted the town of Newton, touching it only near its northern limits, and that this action was contrary to law and would result in irreparable damage to the plaintiff and deprive it of the benefit to which it was entitled. The trial judge found the facts, which will appear from an examination of the judgment rendered, and which may be recapitulated in brief as follows: (1) That the proposed road, known as the northern route, is 1.39 of a mile shorter than the present road; that the cost of grading and constructing the road on the northern route would be less than on the southern, but, if the northern route were adopted, it would be necessary to build a new bridge across the Catawba River, which would require a considerable expenditure of money. (2) That the said northern route or proposed route runs from the center of Statesville to a point just inside of the corporate limits of the town ofNewton and 1 1/8 of a mile from the courthouse or center of the town, "leaving the whole town of Newton to the south."

We now approach the front line trenches of the litigants, where the issue is to be fought out and determined.

The defendant takes up its position behind what is known in the law as the doctrine of discretion, which consists of those discretionary powers which can be exercised by administrative boards and with which the courts cannot interfere. The principle is expressed thus: "In numerous and repeated decisions the principle has been announced and sustained that courts may not interfere with discretionary powers conferred upon these local administrative boards for the public welfare unless their action is so clearly unreasonable as to amount to an oppressive and manifest abuse of discretion." Newton v. School Committee, 158 N.C. 186. This principle is woven into the law by a long and unbroken line of decisions, beginning withBrodnax v. Groom, 64 N.C. 244. But it must be observed that these discretionary powers must be conferred on the local administrative boards or result from necessary implication. The proviso of section 7 of the Road Act, in express language, not only fails to confer a discretion as to county seats, but, in positive language, actually withdraws it. When a statute speaks plainly and in no uncertain or ambiguous terms, the voice of discretion cannot be heard; otherwise administrative boards, under the guise of discretion, could set at nought the legislative will and clothe themselves with the attributes of sovereignty. That this is the correct interpretation of the law appears from the opinion of Adams, J., in the case of Cameron v. Highway Commission, 188 N.C. p. 88, in these words: "As we understand it, the very purpose of this proviso was to exclude the construction that, as to the roads therein described, the defendants should have the discretionary power upon which they now insist. In the exercise of a legal discretion they may determine whether a road shall be changed, altered or discontinued if they observe the mandate of the proviso. But this mandate must be observed; and if it be granted that county seats, State parks, national parks, and forest reserves may be identified ex vitermini, it is not so with respect to `principal towns' or principal State institutions."

The defendant plants itself behind the Cameron case. It must be observed at the outset, in analyzing the Cameron case, that it was dealing with the question of "principal towns" only, and not with the question of county seats. The Cameron case held that "the decision as to what are principal towns within the meaning of the act is a mixed question of law and fact, subject to judicial review as it ordinarily prevails in such cases," because "principal towns" cannot be identified ex vi termini. But this reasoning does not apply to county seats because county seats have a fixed meaning in the law and are identified ex vi termini. Therefore, the reasoning of the Cameron case has no application here, and the learned justice who wrote the opinion, had in mind that a different principle of law would apply to a county seat when he used this language: "and if it be granted county seats, State parks, national parks, and forest reservations may be identified ex vi termini, it is not so with respect to principal towns or State institutions."

It is clear, then, that upon this aspect of the controversy the Cameroncase not only fails to support the defendant's contention, but actually supports the contrary view.

The Cameron case very properly holds that the road map, adopted by the Legislature as a part of the road law, was tentative, but it also holds that this road map was not tentative in so far as it related to the service to be furnished by the road system to county seats. This idea is thus expressed in the opinion: "The terms of the proviso are positive and mandatory and not uncertain or discretionary. . . . Nothing else appearing, this clause would probably be construed as conferring powers to be exercised in the discretion of the defendant, but immediately following are the words: `Provided, no roads shall be changed, altered, or discontinued so as to disconnect county seats,'" etc. In other words, the obvious meaning of the statute is that any road shown on the map may be changed or altered in the discretion of the Highway Commission except that no road as shown on the map shall be changed, altered or discontinued so as to disconnect county seats.

The whole proposition, therefore, resolves itself, in the final analysis, to a determination of the question of whether or not the proposed road entering the town of Newton just within its outmost limits or boundaries is in effect disconnecting the county seat.

When the defendant completed its road to Statesville, the next legal objective was Newton because Newton is the next county seat to the west. By the ordinary processes of reasoning, it must be assumed that an objective created by law was of such outstanding importance as to require and command the full service of the highway system. The Road Act required these highways to run "to all county seats." "Running to a county seat" is quite different from running around a county seat. In Farmers Turnpike Road v.Coventry, 10 Johnson (N. Y.), 389, the principle was thus declared: "The plaintiffs, by their charter, were entitled to carry the road `to the city of Hudson.' This did not mean that the road was to terminate on arriving at the north bounds of the city, which are the middle of Major Abraham's Creek, and several miles from the compact part of the city. The words are to receive a more reasonable interpretation, in reference to the subject-matter, and the public object of the grant, which was to open a good road from Troy to the compact part of the city of Hudson." This case has been cited with approval in People v.Flammer, 137 Mich. 399; Rio Grande R. R. v. Brownsville, 45 Tex. 88 [45 Tex. 88]; Central Ga. R. R. v. Union Springs R. R. (Ala.); 2 L.R.A., N.S., 144.

In reply to this proposition, however, the defendant insists that when its proposed road actually enters the corporate limits at a point just inside thereof, it has complied with the law, and, to that extent, is just inside the law. If the reasoning of the defendant is sound, in giving a technical, restricted, and literal construction to the words: "connecting the various county seats," then there is no necessity for running these highways into the corporate limits of the county seats at all. The intent of the statute, by such reasoning, would be fully complied with by running these great highways so as to connect with a road that did connect with the street system of the town, and therefore a county seat could be "connected" even though the highway system did not come within one mile or ten miles of its boundaries. If it be conceded that this is a compliance with the letter of the law, it must also be borne in mind that "the letter killeth, but the spirit giveth life."

The defendant insists that it would cost approximately two hundred thousand dollars ($200,000) more to build the southern route as shown on the map, referred to, than the northern route which it proposes, and, therefore, that, as a public agency, it should conserve public money. This is undoubtedly a sound proposition. But if the road law required these roads to serve the county seat, in accordance with the legislative plan, then the question of expense is one for the Legislature and not for the courts or the Highway Commission. In addition, the argument cannot be successfully maintained that, because it is cheaper to disobey the law than to observe it, therefore disobedience is justifiable.

It is also urged by the defendant that radical departures have been made in other county seats in the State. There is no finding of fact in regard to this in the record; but, assuming that this has been done, prior departures from the law cannot be used as a reason for a failure to comply with the mandate of the statute.

The final contention of the defendant is that the construction of the road, as proposed by it, does not disconnect the town of Newton.

All the county seats in the State, including the town of Newton, were connected by a road system. The statute itself, speaking through a map, made the connection in a definite and certain manner. What the statute hath joined together the defendant cannot put asunder.

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.

We hold, therefore, that the spirit of the Road Act contemplated that all county seats in North Carolina should be served by the highway system substantially as designated on the map, and that the road, as proposed by the defendant, is not a substantial compliance with the true intent and meaning of the road law.

The trial judge properly held that "the court cannot direct the location of the road." And while slight deviations might be permissible in the interest of the regulation of traffic or other controlling problems of engineering, yet the plaintiff is entitled, under the law, to the service of the road system, which would logically result from a substantial compliance with the location as fixed by the Legislature.

Judgment affirmed.