Opinion
12503
September 27, 1928.
Before MANN, J., Orangeburg, August, 1927. Reversed and injunction prayed for granted.
J.E. Fairey, et al., for themselves and all others in like interest, who will come in and contribute to the expenses of this action, Appellants, v. Ben Sawyer, as Chief Highway Commissioner of South Carolina, Respondent.
Messrs. Wolfe Berry, for appellants, cite: Legislature assumed control of "State Highway System" by 33 Stat., 1193. Where language of Act is clear and certain as to the routes to be followed same may not be varied by Highway Department or the Courts: 134 S.C. 410. Cited generally: 134 S.C. 29; 87 S.C. 566; 67 S.C. 84; 92 S.C. 347; 62 S.C. 196; 51 S.C. 434; 69 S.C. 159; 27 S.C. 408; 54 S.C. 457; 42 S.C. 101; 57 S.C. 125.
Attorney General John M. Daniel, Crouch Ramage, H.E. Moore, and Brantley Zeigler, for respondents, cite: Powers of State Highway Commission: Secs. 3054-3055, Code. When authority granted to do an act, the necessary power by implication is conferred to use such means necessary to perform such act: 4 Wheat., 316. Abutting landowner on highway has no property or other vested right in the continuance of it as a highway at the public's expense: 110 S.C. 324; 136 S.C. 371. Highway Commission has large discretion in locating roads; which Courts cannot disturb: 10 R.C.L., 40; 77 S.C. 357; 86 S.C. 407. Material interest of "traveling public" considered in locating roads: 137 S.C. 369. Issuing or not issuing temporary injunction largely in discretion of Circuit Judge: 10 Enc. Pl. Pr., 983; 27 S.C. 408; 1 Hill Eq., 430; 7 How., 650; 64 S.C. 405; 86 S.C. 160; 69 S.C. 156; Id., 554. Legislature may by statute declare the construction of previous statutes so as to bind the Court in reference to all transactions occurring after passage of the law: 25 R.C.L., 1047; 20 Wall., 330; 61 S.C. 33; 18 How., 421; 10 Wall., 434. As to legislative construction: 20 Wall., 590; 12 Wheat., 136; 17 How., 460; 7 D.C., 120; 16 N.Y., 424; 37 Ohio S., 275; 1 Hill Ch., 265. Power of State Highway Commission to relocate roads: 123 S.C. 368; 134 S.C. 404. As to vested rights: 57 S.C. 166; 60 S.C. 99. Acts of public officers not disturbed by Courts unless abuse of power or arbitrary disregard of public interest shown: 82 S.C. 144; 81 S.C. 414; 99 S.C. 135; 103 S.C. 536. Estoppel: 57 S.C. 125.
September 27, 1928. The opinion of the Court was delivered by
This is one of the several road cases brought here either on appeal or in the original jurisdiction of the Court. A brief statement only is necessary for a correct understanding of the issues involved in the controversy. In 1924, the General Assembly passed an important Act (33 St. at Large, 1193), known as the Pay-as-You-Go Act, the purpose of which was to create and establish a state-wide connected system of hard-surfaced, top-soiled and other dependable types of public roads, to be known as the "state highway system." Under the law in force at that time, the state highway commission, with the consent and co-operation of the local road authorities of the several counties, had created a more or less loosely connected system of highways; by the Act of 1924, these highways were incorporated, along with other highways authorized to be constructed and maintained, into a closely knit state highway system created by the Act, and the state highway department was charged with the maintenance and construction of these roads. Among the routes described by the Act to be taken over by the state highway department for construction and maintenance in Orangeburg County, is the route "from Orangeburg southerly on route No. 6 by way of Rowesville and Branchville to the Bamberg County line." It appears that in 1927 the state highway department proposed to construct and hard-surface a highway between the town of Rowesville and the town of Branchville, a distance of about 8 or 9 miles, as a "relocation" of a part of route 6 designated in the Act of 1924 to be built and hard-surfaced between these two points. The present road between Rowesville and Branchville, which had been taken into the highway system and was a part of same at the time of the passage of the 1924 Act, runs in a southerly direction on the west side of the Southern Railway and generally parallel to it. The proposed substituted highway is east of and parallel to the Southern Railway track, and does not touch the old roadbed between Rowesville and Branchville, the distance between them being substantial and at the widest point several miles. The plaintiffs instituted this action in the Court of Common Pleas for Orangeburg County for the purpose of obtaining a permanent injunction, to restrain the defendants from constructing the proposed substituted highway, which they claim the defendants were attempting to do in violation of law. Upon a verified complaint, his Honor, Judge Mann, issued a temporary injunction, but later on motion of the defendants to vacate same, he heard the matter fully on its merits, and by an order dated August 4, 1927, dissolved the temporary injunction theretofore issued by him, and refused to grant an injunction pendente lite. The plaintiffs now come to this Court. A discussion of the questions raised by the appeal is unnecessary, as this case is controlled by the decision of the Court in the case of Boykin v. State Highway Department, 146 S.C. 483; 144 S.E., 227, opinion filed the 27th day of July, 1928. The legal questions raised in the two cases are practically the same, and when the governing principles of law announced in the Boykin case are applied to the facts of the present case as disclosed by the record, it is clear that the appellants are entitled to a reversal of the judgment of the Court below. The judgment of this Court is that the judgment of the Circuit Court be reversed, and the injunction prayed for by the appellants be granted.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES COTHRAN, STABLER and CARTER concur.