Summary
In Board of Supervisors of Tishomingo County v. Blissitt et al., 200 Miss. 645, 27 So.2d 678, it was held that the action of the Board of Supervisors, in establishing a public road is exercising an administrative power, legislative in its nature, in determining whether the public interest or convenience requires the laying out of the road.
Summary of this case from Board of Supervisors v. McCormickOpinion
No. 36191.
October 28, 1946. Suggestion of Error Overruled November 25, 1946.
1. COUNTIES.
A finding of county board of supervisors supported by evidence is conclusive.
2. HIGHWAYS.
Under statute providing that petition for laying out, altering or changing public road shall be signed by ten or more freeholders "interested in the road," quoted words were used in their popular sense and hence must be interpreted as the people would understand them (Code 1942, sec. 8314).
3. HIGHWAYS.
Householders who would gain half a mile by new road in going to church, school, neighborhood store and county seat were "interested in the road" within statute requiring petition to county board of supervisors for laying, altering or changing of public road to be signed by ten or more freeholders interested in the road (Code 1942, sec. 8314).
4. HIGHWAYS.
In proceeding for laying of public road, issue whether there were as many as ten qualified persons who signed petition was a preliminary jurisdictional question judicial in character, but determination of that issue by board of county supervisors had same force as verdict of jury (Code 1942, sec. 8314).
5. HIGHWAYS.
In proceeding to lay out new public road, evidence sustained finding of board of county supervisors regarding saving in distance for householders near enough to be interested therein so as to authorize such householders to sign the petition as interested persons (Code 1942, sec. 8314).
6. HIGHWAYS.
Under the Constitution, Legislature may regulate exercise of discretion of county board of supervisors in matters of public roads, but may not so circumscribe that discretion as to take it away (Const. 1890, sec. 170).
7. HIGHWAYS.
Whether public interest or convenience requires a public road to be laid out in county is not a judicial but an administrative question, legislative in its nature, and in such proceeding strict rules of evidence prevailing in trial before juries are inapplicable (Code 1942, sec. 8314; Const. 1890, sec. 170).
8. HIGHWAYS.
The province of judicial review of discretion of county board of supervisors in deciding whether public interest or convenience requires laying out of new roads must have its limitation in inquiry whether there was any reasonable basis for action of the board, and unless it can be said that manifestly no such basis exists, courts will not interefere (Code 1942, sec. 8314; Const. 1890, sec. 170).
9. HIGHWAYS.
Where evidence sustained finding of board of county supervisors that householders would gain half a mile by new road in going to church, school, neighborhood store and county seat, court would not interfere with board's finding that public interest or convenience required road to be laid out (Code 1942. sec. 8314; Const. 1890, sec. 170).
APPEAL from the circuit court of Tishomingo county, HON. THOS. H. JOHNSTON, Judge.
Clark Clark, of Iuka, for appellant.
This is an appeal from a judgment of the circuit court of Tishomingo County reversing a judgment of the board of supervisors in laying out a public road. G.C. Stephens and others, being ten or more householders and freeholders of Tishomingo County, filed a petition with the board of supervisors praying for the laying out of a public road as described in the petition. The public road to be laid out went through the lands of appellees on the north boundary line of their said lands for a distance of about one quarter of a mile in length, the said proposed road to connect another public road with Highway 25, which Highway 25 led to Midway Community where a church and public school were located and on to Iuka, the county seat. The appellees refused to sign the petition for the laying out of a public road and the necessary notice as required by law was given them, notifying them of the intention of the board to lay out the said road and make it a public road. The appellees filed a petition before the board in opposition to the laying out of the public road, setting forth numerous reasons why the same should not be laid out. There was a hearing before the board of supervisors on the petition and answer thereto, and the board after hearing testimony on petition and answer granted the prayer of petitioners and entered an order laying out the public road as petitioned for, from which order of the board of supervisors a bill of exceptions was taken and the cause appealed to the circuit court.
The petitioner G.C. Stephens had purchased the land on which he resided and at the time of his purchase and long prior thereto there had been an old roadway on the north side of appellees' land which had been used when it could be traveled in going to Highway 25, above referred to. There were certain seasons of the year in which it was impossible to travel this old road and a public road was granted going in the opposite direction to connect with another public road which led into Highway 25. This road was going in the opposite direction from the public school and the church of Midway Community and the town of Iuka as shown by the maps introduced on the hearing before the board of supervisors. The proof further shows that there were school children in this vicinity who lived too close to the school to be entitled to transportation and they had no way to go except over pathways that they would make themselves.
The petition filed with the board of supervisors for the laying out of the public road contained everything essential and necessary to give the board of supervisors jurisdiction to lay out said road and every jurisdictional question which was necessary to be entered by the board in laying out the road appears on the face of the record. In other words, the question of jurisdiction and the jurisdictional questions necessary were not attacked.
Section 8314, Code of 1942, among other things provides "When any person shall desire to have a public road laid out, altered or changed, a petition shall be presented to the board of supervisors of the county, signed by ten or more freeholders or householders of the county interested in the road, setting forth the commencement and termination and general course thereof, and that the public interest or convenience requires the road to be laid out," etc. The petition set forth all these matters and on this petition the board ordered the road to be laid out.
The court in reversing the judgment of the board of supervisors in laying out the road did not question the fact that the petition contained all of the facts above alleged, nor did the court question the jurisdictional matters to be entered which were necessary for the road to be lawfully laid out. The court held in its opinion that the signers of petition who resided in Salem community had no actual interest in proposed road. The board of supervisors, sitting as a court and jury, heard this testimony and decided that the petitioners were interested in the road. The statute does not provide actual interest, but provides freeholders or householders of the county interested in the road. When it comes to public matters the word interest has a broad meaning. It does not mean that the petitioners must actually reside at the very place where the road is to be laid out, but if they reside in the territory to be benefited and the word territory being broad when it pertains to public matters, it can be readily seen that by the meaning and intent of the statute petitioners who might be interested in public schools and the welfare of the children to attend these schools would have such interest in the laying out of the road for this benefit regardless of whether they ever even travelled the road or not.
On the hearing of the petition the board of supervisors decided that the petition was signed by ten or more householders or freeholders of the county interested in the road, and the public interest or convenience required the laying out of the road. The board did not so abuse its discretion as to necessitate a reversal of the proceedings of the board, because the circuit court thought that the signers of the petition in the Salem territory had no "actual interest" in the road to be laid out.
W.C. Sweat, of Corinth, for appellees.
When any person shall desire to have a public road, other than a road being maintained by the State Highway Department, laid out, altered or changed, a petition shall be presented to the board of supervisors of the county, signed by ten or more freeholders or householders of the county interested in the road, setting forth the commencement and termination and general course thereof, and that the public interest or convenience requires the road to be laid out and opened up, altered or changed as shown in the petition.
Code of 1942, Sec. 8314.
Before the lands of a private individual can be taken for public road purposes under the statute three things must be shown: First, the petition filed with the board must contain the names of ten or more freeholders or householders of the county interested in the road; second, the petition must set forth the commencement, termination and general course of the road; and, third, the petition must show that the public interest or convenience requires that the road be laid out and opened up or altered and changed. While the petition which was filed with the board alleged all of these things to exist, the petitioners failed to show on the hearing that the first and third of these did exist. In fact, it was shown conclusively that the first and third of these did not exist.
Before the property of a private individual can be taken for public road purposes this statute must be strictly complied with.
Craft v. DeSoto County, 79 Miss. 618, 31 So. 204.
The petition was not signed by ten freeholders or householders interested in the proposed road. The person's interest in a public road which would be sufficient to enable the board to take private property for a public road must be a real interest and not a fancied interest; he might be interested in seeing his neighbor have a public road by his house but that would not be such an interest as is contemplated by the statute, and it is very apparent from the testimony in this case and the fact that only four petitioners appeared before the board that whatever interest those petitioners had in this proposed road was only an interest to see a neighbor or friend have a public road which was convenient for his neighbor. Such an interest is not sufficient.
Craft v. DeSoto County, supra; Ferguson v. Board of Sup'rs of Wilkinson County, 149 Miss. 623, 115 So. 779; Aden v. Board of Sup'rs of Issaquena County, 142 Miss. 696, 107 So. 753; Chandler v. Railroad Commissioners, 141 Mass. 208, 5 N.E. 509; Code of 1942, Sec. 8314.
It is not sufficient for the petition to recite that these ten freeholders or householders are interested in the road, but on objection it must be shown by proof that they are in fact interested. It is clear from the statute that before a public road can be laid out, altered or changed, taking private property therefor, there must be at least ten householders or freeholders of the county who are actually interested in the road and who are willing to sign and do sign the petition to the board of supervisors asking for the same, and unless such a petition is filed and unless these facts are shown to exist the board of supervisors is without jurisdiction to proceed. It is true that these are questions for the board of supervisors to decide but the board of supervisors must decide them according to the facts as they exist. On objection they must have the facts showing that these jurisdictional facts do exist and unless they do have these facts shown to exist by proof submitted to them they are without jurisdiction. In this case not only do the petitioners fail to show that the facts exist, that is to say that there are ten or more freeholders or householders interested in the road, but on the contrary it is shown clearly that they do not have such an interest.
Public roads are only authorized to be laid out, and lands condemned therefor, when it is shown to the board of supervisors that the public interest or convenience requires that. It is argued that the order of the board in this case sufficiently adjudicates that the proposed road through appellant's lands was required by the public interest or convenience, because the order of the board recites more than once that it is to be a public road. The board of supervisors might, in disregard of the statute, lay out and establish a public road where the public interest or convenience did not require it.
See Ferguson v. Board of Sup'rs of Wilkinson County, supra.
In this case all of the signers of the petition except four or five lived on a public road and the public interest or convenience generally did not require the laying out of this road. The very fact that some of those who signed the petition might have sometimes used the road is not sufficient to show that the public interest or convenience required it. It is shown by all the testimony that for many years there has been a road along where they want this public road established; that there was a road there when Mr. G.C. Stephens bought this land and had been for thirty or forty years prior thereto, but it was not a public road, it was a private way. There is no effort or intent according to the testimony on the part of the owners of these lands to close up this private road or to in any way obstruct it, and in the last analysis it seems to be an effort on the part of Mr. Stephens, who purchased lands along this road from these appellees, to have this private road made a public road for his convenience and the convenience of those who live on his farm. The board of supervisors has no authority to do this. The board of supervisors cannot take private property for public use and use public funds to so do. The statute sets out how a private way may be obtained when necessary for ingress and egress in Section 8419, Code of 1942; however, these petitioners do not need a private way, they already have a private way, and it may not be as good as they would desire, but it is for their benefit and it is up to them to make it what they want it to be and not call on the public to do so.
In the case at bar it is shown that two jurisdictional requirements in the laying out and establishing a public road clearly do not exist in this instance, and the board of supervisors in attempting to lay out and establish this road over the lands of the appellees went beyond the power delegated to it by the statute, and the circuit court was clearly correct in reversing the decision of the board of supervisors and ordering the petition for the public road to be dismissed; and the case should be affirmed.
Argued orally by T.A. Clark, for appellant, and by W.C. Sweat, for appellee.
Section 8314, Code 1942, so far as material to the issues before us, reads as follows: "When any person shall desire to have a public road other than a road being maintained by the state highway department laid out, altered or changed, a petition shall be presented to the board of supervisors of the county, signed by ten or more freeholders or householders of the county interested in the road, setting forth the commencement and termination and general course thereof, and that the public interest or convenience requires the road to be laid out and opened or altered or changed, as shown in the petition;" etc.
Nineteen persons as freeholders or householders of the county presented a petition to the Board of Supervisors of Tishomingo County praying that a public road as therein described and as hereinafter indicated, be laid out, the petition containing every averment required by the statute. The two persons concerned who were opposing the petition were made parties; they appeared and made their objections in writing; the Board set a day and heard the matter, at the conclusion of which they entered an order sustaining the petition. The order which was duly spread on the minutes expressly adjudicated in the affirmative every jurisdictional fact, including the two issues that the petition was signed by ten or more freeholders or householders of the county interested in the road and that the public interest or convenience requires the road to be laid out and opened up. The objectors appealed on a bill of exceptions to the circuit court which reversed the order of the board, and the board has appealed to this Court. The two points argued on this appeal, and the only two, are those last stated. The bill of exceptions contains a complete transcript of all the evidence presented before the board.
The local community called Midway, in Tishomingo County, is located on Highway 25, which runs approximately north and south at the particular location in question and then beyond Midway on into the county seat at Iuka. At Midway there is a church, a school, and a country store, there being none other within that immediate territory so far as the record shows. Traveling south from Midway on Highway 25 for a distance of about one and one-half miles a point is reached near the southwest corner of Sec. 23, Tp. 4, R. 10 E., at which point a road running east and west to and from the Salem community intersects Highway 25.
The general location of the Salem community, judging from the two maps introduced in evidence, appears to be about two to three miles east of the intersection last mentioned.
The road petitioned for would extend across and along the north line of the W 1/2 of NW 1/4 said Section 23, and according to one of the maps, would there connect with a road which begins approximately at the northeast corner of the W 1/2 of NW 1/4 and extends thence in a direction to the southeast emerging from the section at about the northeast corner of the SE 1/4 of the SE 1/4, whence it continues in the same general direction to where it strikes the east and west road running from the Salem community to Highway 25, already mentioned.
The maps in evidence would show on their faces that the opening of the proposed road would make the distance to be traveled by the residents of the Salem community about one-half a mile shorter to reach the church, school, and store at Midway and then on the county seat than to go to the point at the southwest corner of Section 23, and further to support the finding of the board there is ample oral testimony from witnesses to that effect, although there is a dispute as to distance. We must accept the finding of the board since it is thus supported.
There is no contention that the five householders who live on the road within Section 23 are not interested petitioners; but the argument is that those residing in the Salem community are not interested within the meaning of that term as used in the statute, and that inasmuch as at least five of the petitioners who live in the Salem neighborhood must be counted to make the necessary ten, the petition should have been dismissed.
What is now the quoted Section 8314, Code 1942, first appeared in substantially the same language as Art. 1, Chap. 15, Code 1857, approximately ninety years ago, and although hundreds upon hundreds of public roads have been laid out and opened up under it, the Court has never been called upon to define what is meant by the phrase "interested in the road," — this being, as noted, a required qualification of the petitioners for it. And for a long number of years the same or similar language has appeared in the statutes of a number of other states, but we do not find that any definition of the term as applied to the petitioners has been laid down in any of them. And we do not consider that we are called upon to venture any precise definition now, it being necessary to say only that the statute was intended for a popular, rather than a technical use and must be interpreted therefore as the body of the people would understand it. With this interpretation it would not do to say otherwise than that householders in a given community who would gain half a mile by a new road going to church, to school, to the neighborhood store, and to the county seat, would be interested in that road.
The issue whether there were as many as ten qualified persons who signed the petition was a preliminary jurisdictional question, judicial in character, but the determination of that issue by the Board has the same force as the verdict of a jury and we have already called attention to the fact that there was testimony sufficient to sustain the finding of the Board as to the saving in distance for householders near enough to be interested therein; and this, as we see it, puts an end to the matter as regards the jurisdiction of the Board to enter upon the consideration of the petition upon its merits.
It is insisted by appellees as their second point and upon the merits that the testimony taken before the Board and transcribed in this record is not sufficient to show that "the public interest or convenience requires the road to be laid out and opened . . . as shown in the petition," etc. In approaching this question it must be remembered that under Section 170, Const. 1890, and except as to state highways, "full jurisdiction over roads" is conferred on the board of supervisors "to be exercised in accordance with such regulations as the legislature may prescribe." Under that section the legislature may regulate the exercise of the discretion of judgment of the board in matters of the public roads but may not circumscribe that discretion in such a manner as, in practical substance, to take it away. Hence the aptness of the language in Strahan v. Attala County, 91 Miss. 529, 44 So. 857, that a petition to open a new road is peculiarly within the discretion of the board, — speaking, of course, as to the merits of the petition.
On the merits, that is to say whether the public interest or convenience requires the road to be laid out, there is presented what is in no sense a judicial question. It is an administrative problem, legislative in its nature. In considering such an issue it is said that as a general proposition the strict rules of evidence which prevail in trials before juries are not applicable; but the extent to which exceptions to the ordinary rules of judicial evidence may be carried in such cases is a feature of the law which today is in the course of development, and so far as we have been able to find has not yet been definitely prescribed by any dependable weight of authority. And such a prescription should not be attempted without sustained argument directed to the point and there has been none such here. It will be sufficient so far as the present case is concerned to point out that when a tribunal acts judicially and has ascertained the facts, the law directs ordinarily that a certain judgment is to be rendered, while on a hearing of the nature here under consideration, so far as concerns the merits, when the facts are known or ascertained, even if under the strict rules of judicial evidence, the judgment to be rendered is still a matter of discretion involving perhaps as many as a dozen administrative considerations whether a particular judgment shall or shall not be entered. See 39 C.J.S., Highways, Sec. 27, pages 946, 947.
It must be at once apparent therefore that the province of a judicial review of the discretion of the board in deciding the question whether the public interest or convenence requires the laying out of a new road must have its limitation in the inquiry whether in the situation in hand there was any reasonable basis for the action of the board, and unless it can be said that manifestly no such basis exists, the courts have no business in the matter. Our conclusion is that in the present situation it is not within our province to interfere.
The judgment of the circuit court is reversed and the order of the Board of Supervisors will be affirmed.
Reversed, and judgment here for appellant.
Sydney Smith, C.J., did not participate in this decision.