Opinion
No. 27978.
June 3, 1929.
1. MUNICIPAL CORPORATIONS. Legislature has plenary power over municipal streets, and can divest municipality of all control over streets.
Power of legislature over municipal streets is plenary, and it has power to divest municipalities of all control over their streets.
2. HIGHWAYS. Under statute county may build highway through village without village's consent, and route need not follow established street ( Laws 1928, chapter 82).
Under Laws 1928, chapter 82, county has right to build highway through village without consent of village authorities, and route need not follow one of established streets of city.
APPEAL from chancery court of Madison county, HON. V.J. STRICKER, Chancellor.
H.B. Greaves, of Canton, for appellants.
In the case of Blocker v. State, 72 Miss. 720, the court held the jurisdiction of the municipality superior to the board of supervisors.
This case is cited and approved in Town of Isola v. Humphreys County, 99 So. 147.
The history of the legislation of the joint control of roads running through municipalities begins with the Acts of 1910, chapter 144, or page 257 of the Laws of 1912, the latter being section 7179 of Hemingway's Code of 1917. Section 170 of the Constitution of Mississippi; Acts of 1924, page 190, chapter 143; Laws of 1926, chapter 218, page 328.
Appellant concedes that the legislature has a right to invest the board of supervisors with full jurisdiction over the roads or streets of any municipality, great or small, but appellant contends that there is nothing in the statute, as now read, that gives the board of supervisors a right to go into a municipality and lay off a highway, regardless of the streets of the municipality.
Atkinson v. Decatur, 131 Miss. 707; Tishomingo County v. McConville, 139 Miss. 589.
Under sec. 337 of the Code of 1906, section 2946 of the Code of 1892, and section 5854 of Hemingway's Code of 1917, Laws of 1897, chapter 27, municipalities were given the right of eminent domain with regard to laying off of its streets. This tends to confirm appellant's view that the municipality has full authority over its streets, and the board of supervisors has none further than the legislature sees fit to delegate to it.
The board of supervisors have the right to run through any municipality by appropriating any of the streets already laid out, however, the court will notice that every single act passed, defining the rights of the board of supervisors to go through municipalities, uses the word "may."
The board of supervisors only has a right to take over streets already established.
Chapter 155, Acts of 1928, page 209, amending section 4405, Code of 1906 is a safeguard requiring the board of supervisors to go through municipalities according to the streets already laid off, to prevent the arbitrary idea and will of the state highway engineer in running diagonally through any municipality in this state.
A.K. Foot, of Canton, for appellee.
It is an elementary proposition, admitted by counsel for appellants in his brief, and using Judge DILLON'S language (which was quoted by Judge WHITFIELD in Meridian v. Western Union, 72 Miss. 910, 18 So. 84; 29 L.R.A. 770), that "All power which it (the municipality) has over its streets is derived from the legislature, whose power over them is 'supreme and transcendent.'"
City of Canton v. Canton Cotton Warehouse Co., 84 Miss. 268, 36 So. 266; 105 Am. St. Rep. 428; 65 L.R.A. 561; Laramie County v. Albany County, 92 U.S. Rep. 307.
The decision in the Blocker case ( 72 Miss. 720), is based of course upon the fact that the legislature had clothed the municipality with full jurisdiction in the matter of its streets. Judge WHITFIELD said:
"The scheme provided by this chapter for the government of cities, towns, and villages is one admirable in its whole and in its details, and is intended to stand apart to itself as the law of such municipality except when otherwise specially provided."
Appellee contends that the legislature, the "transcendent" authority, has most emphatically "otherwise specifically provided" for the locating, laying out, and constructing of state highways, and especially primary highways or main trunk lines of its highway system and especially federal aid projects; and that the general laws in the code chapter on municipalities pertaining to the powers of a municipality over its streets must give way to the several state highway acts.
The legislature, by chapter 82, Acts of 1928, legislated specially on this particular subject.
The proper construction of this act will settle the questions involved in this case; in other words, this case is simply a matter of legislative construction.
36 Cyc. 1147; Wellsburg, etc., v. Traction Co., 56 W. Va. 18, 48 S.E. 746; Smith v. Halfacre, 6 Howard 600; 1 Story's Com. 387.
Where a constitution is not entirely explicit in itself, and requires construction, it ought not to be so construed as to cripple the government, and render it unequal to the objects for which it is declared to be instituted.
The trend of legislation in this matter of the construction of public highways, year by year, gets farther away from the local or neighborhood viewpoint to the county-wide and inter-county viewpoint.
Laws of 1916, chapter 168; Laws of 1916, chapter 173; chapter 203, Laws of 1920; chapter 129, Hemingway's 1927 Code; chapter 278, Laws of 1924; chapter 279, Laws of 1924; chapter 218, Laws of 1926; chapter 45, Extraordinary Session 1928.
The legislature, to meet the decision in the Isola case, enacted chapter 82 of the Laws of 1928, in which it is provided that the board of supervisors of any county in the state may, "at their discretion, construct and maintain, or contribute to the construction and maintenance of any state highway previously established according to law, within or without the corporate limits of any town or village."
It is familiar learning that, in the construction of statutes, courts chiefly desire to reach and know the real intention of the framers of the law, and reaching and knowing it, then to adopt that interpretation which will meet the real meaning of the legislature, though such interpretation may be beyond or within, wider or narrower than, the mere letter of the enactment. Board of Education v. Railroad, 72 Miss. 236, 16 So. 489; quoted with approval by Chief Justice SMITH in Kennington v. Hemingway, 101 Miss. 259, 57 So. 809; 39 L.R.A. (N.S.) 541; Ann. Cases 1914B, 392.
It seems ridiculous to consider that a small village, which by the grace of the legislature was brought into existence and given the privilege of exercising governmental functions to a limited degree, would attempt to use that grace and privilege to thwart the great public policy of its creator.
The state highway commission is the state itself, its alter ego. State Highway Commission v. City of Elizabeth, Court of Chancery of New Jersey, February 1, 1928 (140 Am. Rep. 335).
Under Laws 1928, chap. 82, the county has the right to construct a highway through a municipality, and the route need not follow one of established streets of the city.
Under chapter 278, Laws 1924, amended as to additional highways by chapter 218, Laws 1926, and chapter 45, Laws 1928 (Ex. Sess.), a system of state highways was "established, created and defined;" the first named among them being a central highway beginning at the Tennessee line near Horn Lake, and extending through Canton and Jackson, to the Louisiana line near Osyka. By the original chapter the procedure was established by which the maintenance of these state highways was to be taken over by the state highway department. In this general connection a more expeditious method was provided by chapter 155, Laws 1928, for the coordination of these highways with the machinery of the general government in the matter of federal aid projects.
A link in the state highway above mentioned extends from the northern terminus of the Hinds county concrete highway (F.A.P. No. 79-A) near Tougaloo station northward to Canton. On July 20, 1928, such steps and proceedings had been taken by the county of Madison in cooperation with the state highway department that the said link had been surveyed, complete specifications had been made up for a modern concrete highway, and the project was ready for the inspection of the federal engineers. This survey does not immediately follow the old graveled road from Tougaloo to Canton, but is laid out east of said old road, and on an entire new location about one-fourth to one-half mile distant therefrom. In passing through the village of Ridgeland, the new route runs some eleven hundred feet east of the old road — called in the village East Railroad Street — and does not follow any street, but runs at an acute angle across several of the streets, one of which is a graveled street and the others are "undeveloped" streets, as they are termed in the diagram furnished in the record.
On the date aforesaid, a designated federal engineer in collaboration with a state district engineer made a complete inspection of this link as proposed on said new route, and made up a detailed report of his findings. Among other things he reported: "(3) Present Road. The present road is surfaced with gravel sixteen feet wide and is poorly maintained. The alignment, as well as gradient, is reprehensible, sharp right angles exist as well as steep grades and short verticle curves, prohibiting a safe sight distance. The proposed project is on an entire new location, about one-half mile east of the I.C. Railroad." He then proceeds with twenty-one different items covering all the details of the project as surveyed and planned, and concludes: "Recommendation. The route of which this project forms a part is recorded as the future main trunk line for the state. The proposed improvement on the location and grade as established, is considered satisfactory and in keeping with the importance of the road. It is recommended that the proposed improvement be approved for federal aid participation." This report was accepted by the federal district engineer, and was forwarded to Washington, and on the 8th day of January, 1929, the report was approved and the project accepted as F.A. Project No. 79-B, and the sum of one hundred twenty-two thousand, six hundred eighty-nine dollars and fifty-six cents was set apart by the general government to aid in the construction. The county of Madison has procured all the funds needed on its part as well as all the rights of way, and has taken and completed every necessary step, and the new road is being constructed.
The village of Ridgeland has objected to the change of location of the route, and now insists that the county has no right to build said concrete highway through the municipal territory without the consent of the village authorities, or, if mistaken in this, that the route must follow one of the established streets of the village. The road contractors were warned by the village officers of this insistence, and the village has threatened to enforce a village ordinance making it a misdemeanor to work on the proposed new route within the limits of the municipality. The county has enjoined the municipality from interference, and the chancellor has overruled a motion to dissolve the injunction.
In the days of the wagon and the one-horse shay it was the law that the jurisdiction of the county in respect to roads and streets ended at the line of the municipality, and that within the incorporated territory the authority of the municipality was exclusive. Such was the law when Blocker v. State, 72 Miss. 720, 18 So. 388, was decided in 1895. Roads and streets were then of little more than local concern. But the advent of the automobile and the requirements of modern conditions brought about by the general use of that new means of transportation have worked a gradual readjustment of our laws to meet the new conditions. These readjustments have been cautiously advanced, but nevertheless have been definite. At first, it was provided with deference to the municipalities that in constructing the main lines of highways through a municipality the county could do so only with the consent of the municipal authorities, and this is still true as to any except state highways established as such by an express legislative act.
But, at the regular legislative session of 1928, the lawmaking body laid aside all these municipal reservations so far as concerns the trunk line roads designated in legislative acts as state highways, and there was enacted chapter 82, Laws 1928. That law reads as follows: "The board of supervisors of any county in the state, may in their discretion, construct and maintain, or contribute to the construction and maintenance of, any state highway previously established according to law, within or without the corporate limits of any city, town or village." The above quoted sentence is the whole of that act, and there is not a word of reservation or exception.
"In this state the power of the legislature over municipal streets is plenary, unless in exceptional cases not here presented. It has the power to divest the municipalities of all control over their streets, and authorize their use by corporations without compensation to the municipality. It is a question of legislative will and intent, not a question of power." Canton v. Cotton Warehouse Co., 84 Miss. at pages 290, 291, 36 So. 266, 271 (65 L.R.A. 561, 105 Am. St. Rep. 428). The village concedes the law as stated in the foregoing quotation, but contends that the term in the Act of 1928, "state highway previously established according to law," means as previously established by the municipal authorities, so far as concerns that part of the highway which runs within the municipality, which is to say that within the municipality the highway must run according to the streets as already laid out and in existence in the municipality. We can find no warrant in the words of the act for that construction, nor anything in it from which we could infer any such an intent. On the contrary, we think the legislature meant exactly what is said in the act. In any event, there is nothing shown which would justify us in engrafting any additional words or provisions upon it, and we must therefore interpret it as it is written, from which it follows that the holding of the chancellor was correct.
Affirmed.