Opinion
No. 39228.
May 10, 1954.
1. Highways — statutes — bridge not up to State standard — under county's jurisdiction.
Where County Board of Supervisors accepted offer of State Highway Department to assume jurisdiction of specified highway "except drainage structures," and after Supreme Court decision holding that quoted words did not include bridge over natural water course, thereafter accepted offer of Department to assume jurisdiction of highway except bridges not up to State standard, second acceptance was but a clarification of first and was operative notwithstanding passage of in interim statute providing for preservation of status quo of all highways theretofore taken over by Department, and bridge forming part of specified highway which was not up to State standard was thereafter under jurisdiction of county. Chap. 278 Sec. 2, Laws 1924; Chap. 47, Laws 1930; Chap. 332 Sec. 7, Laws 1948; Chap. 6, Laws 1949 (Ex. Sess.).
Headnote as approved by Gillespie, J.
APPEAL from the circuit court of Hinds County; M.M. McGOWAN, Judge.
Alexander Alexander, Jackson, for appellant.
I. Highways were taken over by the Highway Commission first by agreement, and later designated State highways (which includes Highway No. 6) were vested in the State Highway Commission by statute.
II. Long interval between 1931 and 1952.
III. During the long interval of twenty-one years the Highway Commission has on occasions repaired the said bridge.
IV. In 1952 the Board requested the Highway Commission to repair and maintain the bridge, which was refused.
V. The action of the Board of Supervisors is in full accord with the opinion of the Attorney General of Mississippi.
VI. The Highway Commission relies chiefly on the decision of the Court in the case of Board of Supervisors of Prentiss County v. Mississippi State Highway Commission, 207 Miss. 839, 42 So.2d 802.
VII. The distinction between the Prentiss County case and this present case.
VIII. Other Mississippi decisions that may be helpful. State ex rel. Atty. Gen. v. Bd. of Suprs. Grenada County, 196 Miss. 806, 17 So.2d 433.
Wright, Overstreet Kuykendall, Jackson; James A. Cunningham, Sr., Booneville, for appellees.
I. Historical background. Board of Suprs. Prentiss County v. Miss. State Highway Comm., 207 Miss. 839, 42 So.2d 802; Havens, Tax Coll. v. Hewes, 128 Miss. 650, 91 So. 387; Jefferson-Davis County v. Riley, 158 Miss. 473, 129 So. 325, 130 So. 284; State ex rel. Atty. Gen. v. Bd. of Suprs. Grenada County, 196 Miss. 806, 17 So.2d 433; State ex rel. Salter v. Bolivar County, 111 Miss. 867, 72 So. 700; Sec. 170, Constitution 1890; Sec. 5630, Code 1927 (Hemingway's); Sec. 8021-20, Code 1942; Chap. 173, Laws 1914; Chap. 168, Laws 1916; Chap. 278, Laws 1924; Chap. 47, Laws 1930; Chap. 199, Laws 1938; Chap. 332, Laws 1948; Chap. 6, Laws 1949.
II. Issuance of a writ of mandamus rests in the sound discretion of the trial court, and the appellate court will not reverse dismissal of the petition therefor where the public interest would be adversely affected. Board of Suprs. Prentiss County v. Miss. State Highway Comm., supra; Jefferson-Davis County v. Riley, supra; McRaney v. Covington County, 210 Miss. 192, 49 So.2d 248; Overstreet v. Lord, 160 Miss. 444, 134 So. 169; Selig v. Price, 167 Miss. 612, 142 So. 504; State ex rel. Atty. Gen. v. Bd. of Suprs. Grenada County, supra; Stigall v. Sharkey County, 197 Miss. 307, 42 So.2d 116; Wood v. State ex rel. Dist. Atty., 169 Miss. 790, 142 So. 747; Sec. 1109, Code 1942; Chap. 278, Laws 1924; Chap. 47, Laws 1930; Chap. 6 Sec. 2(3), Laws 1942; Chap. 332, Laws 1948; 55 C.J.S., Sec. 373(e) p. 647.
III. The purpose of the writ of mandamus is to enforce established rights and corresponding imperative duties imposed by law. It is not for the purpose of establishing or declaring legal rights, nor enforcing equitable rights. American Book Co. v. Vandiver, 181 Miss. 518, 178 So. 598; Edmondson v. Bd. of Suprs. Calhoun County, 185 Miss. 645, 187 So. 538; Garraway v. State ex rel. Dist. Atty., 184 Miss. 466, 184 So. 728; 55 C.J.S., Sec. 51 p. 85.
IV. Three essentials must coexist before the extraordinary writ of mandamus may be issued: (1) a clear right in the petitioner to the relief sought, (2) the existence of a legal duty on the part of the defendant to do the thing which the petitioner seeks to compel, and (3) the absence of another adequate remedy at law. Alex Loeb, Inc. v. Bd. of Trustees Pearl River Jr. College, 171 Miss. 467, 158 So. 33; Anderson v. Robins, 161 Miss. 604, 137 So. 476; Board of Suprs. Quitman County v. State ex rel. Crisler, 205 Miss. 43, 38 So.2d 314; Board of Suprs. Rankin County v. Lee, 147 Miss. 99, 113 So. 194; Board of Suprs. Winston County v. Adams, 164 Miss. 162, 144 So. 476; Bradner v. Funkhouser, 291 N.Y. Supp. 895, 249 App. Div. 751; City of Greenwood v. Provine, 143 Miss. 42, 108 So. 284, 45 A.L.R. 824; City of Jackson v. McPherson, 158 Miss. 152, 130 So. 287; Cole v. State, 91 Miss. 628, 45 So. 11; Commonwealth ex rel. Freeman v. Westfield Borough, 11 Pa. 369; Hamilton v. Long, 181 Miss. 627, 180 So. 615; Hathorn v. Town of Woodville, 107 Miss. 589, 65 So. 643; Hiawatha Gin Co. v. Miss. Farm Bureau Cotton Assn., 138 Miss. 605, 103 So. 345; Hugg v. Camden, 39 N.J.L. 620; In re Validation of Bonds of McNeill School, 185 Miss. 864, 188 So. 318; Love v. Lincoln County, 165 Miss. 860, 147 So. 877; Rose v. Lampley, 146 Ala. 445, 41 So. 521; Ruhr v. Cowan, 146 Miss. 870, 112 So. 386; Selig v. Price, supra; Shotwell v. Covington, 69 Miss. 735, 12 So. 260; State ex rel. Atty. Gen. v. School Bd. Quitman County, 181 Miss. 818, 181 So. 313; State ex rel. Cowan v. Morgan, 147 Miss. 121, 112 So. 865; State ex rel. Dist. Atty. v. Bd. of Suprs. Wilkinson County, 155 Miss. 424, 124 So. 490; State Highway Comm. v. McGowen ex rel. Hinds County, 198 Miss. 853, 24 So.2d 330; State Highway Comm. v. Mason, 192 Miss. 576, 4 So.2d 345; Swan v. Gray, 44 Miss. 393; Thomas v. Price, 171 Miss. 450, 158 So. 206; Waits v. Black Bayou Drain. Dist., 186 Miss. 270, 185 So. 577; White v. Miller, 159 Miss. 598, 132 So. 745; Wood v. State ex rel. Dist. Atty., supra; Woodberry v. McClurg, 78 Miss. 831, 29 So. 514; Chap. 207, Laws 1920; Chap. 6, Laws 1949; 55 C.J.S. pp. 75, 85, 107.
APPELLANT IN REPLY.
I. General reply to brief for appellees. Board of Suprs. Prentiss County v. Miss. State Highway Comm., 207 Miss. 839, 42 So.2d 802; State ex rel. Atty. Gen. v. Bd. of Suprs. Grenada County, 196 Miss. 806, 17 So.2d 433; Secs. 8021-20, 8027, Code 1942; Chap. 278, Laws 1924; Chap. 47, Laws 1930; Chap. 6, Laws 1949.
II. Legal sufficiency of questions raised by motion in defendants' answer to dismiss the bill of complaint. Board of Suprs. Prentiss County v. Miss. State Highway Comm., supra; Hancock County v. State Highway Comm., 188 Miss. 158, 193 So. 808; Jefferson-Davis County v. Riley, 158 Miss. 473, 129 So. 325, 130 So. 284; Madison County v. Miss. State Highway Comm., 191 Miss. 192, 198 So. 284; State ex rel. Cowan, Dist. Atty. v. State Highway Comm., 195 Miss. 657, 13 So.2d 614; State ex rel. Gillespie, Dist. Atty. v. State Highway Comm., 195 Miss. 657, 13 So.2d 614; State Highway Comm. v. McGowen ex rel. Hinds County, 198 Miss. 853, 24 So.2d 330; Sec. 1109, Code 1942; Chap. 47, Laws 1930; 34 Am. Jur., Mandamus, Secs. 191, 193, 197.
The appellant, Board of Supervisors of Monroe County, petitioned the Circuit Court of Hinds County for a writ of mandamus against the appellee, Mississippi State Highway Commission. The petition prayed that the court (1) adjudicate that appellee has sole jurisdiction over Highway No. 6, including the bridge over the Tombigbee River, (2) adjudicate that it is the mandatory duty of appellee to repair and maintain the bridge over the Tombigbee River, and (3) order the appellee to do and perform all things necessary to carry out the duties of the appellee in reference to said bridge as the court might find necessary and proper. Appellant filed its answer and notice of motion to dismiss. After trial on the merits, the court below dismissed the petition.
Mississippi State Highway No. 6 is a secondary highway. It runs from a point in Monroe County on the Alabama line west to Amory, then through various points across the State of Mississippi. In Monroe County, Highway No. 6 traverses the Tombigbee River by means of a bridge, the one here in question. This bridge was built about 1899. It is 16 feet wide and about 545 feet long; it has a steel superstructure with flooring of untreated oak timber. The proof was sufficient to show that the bridge has never been up to the standards of the Mississippi State Highway Department. The appellee has on several occasions rendered assistance to Monroe County in repairing the bridge. In each such instance the work and service furnished by appellee was done on authority of district officials of the appellee without order of the Highway Commission. In each such instance the appellee billed Monroe County for the work and service, but the appellant never paid the bills. No order was ever spread on the minutes of appellee assuming jurisdiction over the Tombigbee River bridge. It never in fact took over the bridge. Appellant never officially requested the appellee to assume jurisdiction of the bridge until shortly before the beginning of this litigation. When this request was received by appellee, it spread an order on its minutes declining to assume jurisdiction of the bridge. The attorney general gave the appellant an opinion on April 15, 1952, holding that appellee had jurisdiction of the bridge.
We now consider the applicable statutes. Section 2, Chapter 278, Laws of 1924, provided that all highways taken over by the State Highway Department shall be accepted by the Department in writing; that the board of supervisors enter an order on its minutes authorizing the Highway Department to take over supervision, control and maintenance of such highway. Said act further provided as follows: "The said highway department may accept and assume jurisdiction over the said road before it agrees to maintain or accept the bridges and may, at a later date, accept the bridges, when they are constructed according to the standard required by the state highway department and maintain the same from that date. The bridges and the roads may be considered separately by the highway department in assuming responsibility of the maintenance of same."
Acting under the foregoing Section 2, Chapter 278, Laws of 1924, the State Highway Department offered in writing to take over the road now designated as No. 6, with the following exception: "All drainage structures." This offer was accepted by the Board of Supervisors of Monroe County by order spread on its minutes dated January 8, 1929. The State Highway Department apparently understood the term "all drainage structures" included bridges. But in September, 1930, this Court decided the case of Jefferson Davis County v. Riley, 158 Miss. 473, 130 So. 283, wherein it was held that the term "drainage structures" did not include a bridge over a natural water course. The State Highway Department then made a new written proposal to Monroe County Board of Supervisors for the taking over of Highway No. 6, which included the following: "Except bridges not up to state standard, said standard being creosote timber or better, built according to Mississippi State Highway Department standard plans and under the State Highway Department supervision." The proposal or offer also included a statement that this was being done for the purpose of clearing the records of the State Highway Department. The Board of Supervisors of Monroe County, on January 8, 1931, accepted this proposal by order spread on its minutes. But in the meantime the legislature had passed Chapter 47, Laws of 1930, known as the Stansel Act. Section 11 of this act provided for the preservation of the status quo of all highways theretofore taken over by the State Highway Department. It did not make provision for the separation of highways and bridges as did Section 2, Chapter 278, Laws of 1924, which the later act repealed.
(Hn 1) We hold that when the road here in question, Highway No. 6, was brought forward from the authority of Chapter 278, Laws of 1924, to be continued under the authority of Chapter 47, Laws of 1930, it was brought forward with jurisdiction of the road vested in the State Highway Commission "except bridges not up to state standard." The second order of the Board of Supervisors, dated January 8, 1931, was merely a clarification of the previous order dated January 8, 1929. Therefore, the controlling statute at the time the road was taken over by the State Highway Department was Chapter 278, Laws of 1924. This was settled by the case of Board of Supervisors of Prentiss County v. Mississippi State Highway Commission, 207 Miss. 839, 42 So.2d 802. The wording and timing, in relation to the enactment of the Stansel Act and the decision of this Court in the Jefferson Davis County v. Riley case, are the same as in the Prentiss County case.
Appellants contend that the Prentiss County case is not applicable. We fail to find any ground to distinguish that case from the one here considered. The fact that the bridge over the Tombigbee River was not specifically named in the offers of the State Highway Department or in the orders of the Board of Supervisors of Monroe County is no ground for holding that the Highway Department took over the bridge with the road. The specific bridge here involved was sufficiently designated as being a bridge "not up to state standard."
Nor did the enactment of Chapter 332, Laws of 1948, which revised the Stansel Act of 1930, change the status of the bridge here involved. Section 7 of Chapter 332, Laws of 1948, provided in part that "the status of the highway system as now taken over for maintenance by the State Highway Commission shall be preserved . . ."
Chapter 6, Laws of the Extraordinary Session of 1949, designated Highway No. 6 as a part of the system of highways over which the State Highway Commission has jurisdiction. Said act further provides that no highway shall be taken over in the future unless the bridges thereon are also taken over at the same time. Section 10 of that act specifically provides for the maintenance of the status quo of all state highways theretofore taken over by the State Highway Commission.
We are of the opinion that the several acts of the legislature above referred to did not have the effect of placing the Tombigbee River bridge on Highway No. 6 under the jurisdiction of the State Highway Commission. The bridge was taken over under the 1924 act. It appears that the subsequent acts intended that the status quo be maintained as to highways previously taken over. The 1948 and 1949 acts provided that no highways were to be taken over in the future unless the bridges thereon were also taken over.
We do not reach the question of whether the writ of mandamus should issue if the State Highway Commission did have jurisdiction of the bridge in question. Nor do we wish to be understood that the writ would issue if the control and jurisdiction of the bridge was in the State Highway Commission. The cases of Board of Supervisors of Prentiss County v. Mississippi State Highway Commission, supra, and State, ex rel. Attorney General v. Board of Supervisors of Grenada County, 196 Miss. 806, 17 So.2d 433, and cases therein cited, indicate that this Court could not tell the State Highway Commission what to do about the bridge in question even if it had jurisdiction of the bridge. The matter at issue is one for the legislature.
Affirmed.
McGehee, C.J., and Hall, Kyle and Holmes, JJ., concur.