Opinion
No. 35570.
March 27, 1944.
1. BRIDGES.
A petition for mandamus to compel county board of supervisors to repair a bridge across state highway was properly dismissed even if bridge remained under board's jurisdiction, where petition did not aver that board had failed to provide adequate bridge, and court could not tell the board in specific terms what kind of bridge it should maintain (Laws 1924, ch. 278, sec. 2; Laws 1926, ch. 218; Laws 1930, ch. 47).
2. EVIDENCE.
The court will take judicial knowledge that materials for permanent bridge construction are covered by many war priorities.
3. BRIDGES.
Even if court could direct county board of supervisors as to how it should repair bridge, such directions would not issue during wartime when materials for permanent bridge construction were covered by many war priorities.
APPEAL from the circuit court of Grenada county, HON. JOHN F. ALLEN, Judge.
Russell Wright, of Jackson, for appellant.
Until the bridge in question was by Grenada county constructed up to the standards required by the Highway Commission, the Highway Commission had no authority under the law to take the same over for either construction or maintenance prior to April 14, 1930, and did not do so.
Jefferson Davis County v. Riley, 158 Miss. 473, 129 So. 324; Hattiesburg Plumbing Co. v. A.E. Carmichael Co., 80 Miss. 66, 31 So. 536; Sec. 170 of the Constitution of 1890, as amended by Chap. 143, Laws of 1924; Chap. 278, Laws of 1924; Chap. 217, Laws of 1926; 22 C.J. 1203.
The bridge in question was not by Chapter 47, Laws of 1930 (Chapter 122, Code of 1930), placed under the jurisdiction of the State Highway Commission for maintenance, nor for reconstruction, nor has the same been placed under such jurisdiction otherwise.
Trahan v. State Highway Commission, 169 Miss. 732, 151 So. 178; Dantzler Lumber Co. v. State, 97 Miss. 355, 53 So. 1; State ex rel. Hairston v. Baggett, 145 Miss. 142, 110 So. 240; State Teachers' College v. Morris, 165 Miss. 758, 144 So. 374; Briscoe v. Buzbee, 160 Miss. 574, 143 So. 407; Conard Furniture Co. v. Miss. State Tax Commission, 160 Miss. 185, 133 So. 652; Secs. 7, 9, 10, 11, 31, 33, Chap. 47, Laws of 1930 (Chap. 122, Code of 1930), as amended by Chap. 216, Laws of 1930.
The case of Jefferson Davis County v. Riley, supra, is not authority either as res adjudicata or under the doctrine of stare decisis, but is distinguishable by the record and by the law. The only similarity between the Riley case and this case is that the court had under construction an identical order of the State Highway Commission, entered when the Highway Commission was taking over under Chapter 278, Laws of 1924, involving a road in Jefferson Davis County, and the order excepted the "drainage structures" not up to state standard plans and specifications. In fact, a comparison of the order in that case and in the instant case will indicate that the Highway Commission was using a form order in forwarding to the boards of supervisors its acceptance in writing, to be entered on the minutes of the boards. In that case there was no testimony showing that in using the words "Drainage structures" the parties were using a technical term which had the meaning of "bridge." The court, in its opinion, was correct in holding that testimony of intention should not have been admitted. The court said: "Parol testimony was admitted over the appellants' protest to the effect that the bridge here in question was not intended to be included in the acceptance of the road by the state highway department." There was nothing in the record to show that "drainage structures" were bridges, and the court correctly held according to the Mississippi rule that if an instrument is unambiguous on its face, parol testimony cannot be introduced relating to the intention of the parties. See Cox v. Reed, 113 Miss. 488, 74 So. 330, wherein this rule is announced as one the court is committed to. However, this court, in the Riley case, defined a drainage structure, in the absence of proof that the words meant otherwise, as "an artificial channel or trench which has been constructed for drainage purposes," and a bridge as "a structure erected over an obstruction in a highway so as to make a continuous highway," after posing the question, "First, is a bridge forming a part of a highway and which spans a natural stream crossing the highway a `drainage structure.'" In the absence of competent proof that a drainage structure was any structure spanning a waterway, permitting water to drain from one side of the road to the other, the court could not know that a drainage structure as used in the technical sense given it by road and bridge construction engineers was exactly what the court asked when it posed the question. That proof was in the instant record. The court was, therefore, correct in the holding in the Riley case, but the case is not authority here any more than a case involving a contract using other technical terms, where proof of the meaning of such terms was not offered, would be stare decisis in another case involving such technical terms, but with different parties, where such proof was offered.
It is elementary that the doctrine of stare decisis applies only where the facts of the cases are similar, and the principles of law are the same, based on the particular facts.
Pass v. McRae, Coffman Co. et al., 36 Miss. 143; 15 C.J. 940.
S.C. Mims, Jr., Cowles Horton, and W.M. Mitchell, all of Grenada, for appellee.
In the case of Jefferson Davis County v. Riley, 158 Miss. 473, 129 So. 324, this court had before it the construction of a written contract. After repeated examination, after considering two suggestions of error and after hearing the same substantial arguments as are now presented it was definitely held that the contract meant a certain thing. For more than 13 years the contract has had that meaning and every applicable legislative act has given approval. In its effort to avoid the effect of the Riley case appellant submits and argues three propositions, which are substantially as follows: First, that the commission could not and did not take over this bridge. Second, that this bridge was not placed under the jurisdiction of the Commission by Chapter 122, Code of 1930, or otherwise. Third, that the Riley case is not controlling in the case at bar.
The contract involved — the Commission's proposal accepted by the county — shows very clearly that the "road" taken over was "up to standard requirements." Assuming for the argument that this was necessary, the fact is that at that time the parties adjudicated, as they had a right to do, that the "road" was what it had to be in order to be taken over. The charge in the petition here that this was not true is nothing more or less than an effort to contradict the solemn judgment of the tribunals involved with no charge whatever of fraud or misconduct. While it is argued that the term "road" did not include the bridge no reason is given for the argument except the fact that a bridge engineer (Mr. Hill) testified that "among engineers" the term "drainage structures" meant bridges. Neveretheless, this same witness admitted that the term might not be so taken by the general public, of which, of course, the members of the board and of the Commission were a part. While it is true that in the Riley case no engineer testified that the term employed had the meaning "among engineers" as here shown, this court and everyone connected with that case assumed that this was true and the point was vigorously argued by the counsel for the Highway Commission, as will appear by examining that record. Keeping in mind that the Commission did take over this "road" and that the county thereby lost its jurisdiction thereof we are bound to conclude that the bridge was included as a part of the "road" unless, of course, this court was mistaken in its definition of "drainage structures."
Sullivan v. Board of Sup'rs of Lafayette County, 58 Miss. 790; Code of 1930, Sec. 5021; 9 C.J. 422.
The record discloses that appellee objected to this testimony of the engineer and we submit that it has no place in this record. It was squarely held in the Riley case that the terms used were not technical terms at all and, since they were not, there was no occasion to show what they meant to any particular profession or even to anyone else. This is the holding of all of the authorities, even of those cited by the appellant. In fact the law goes even further than this for it prohibits even the parties from showing what the terms of a written contract meant to them except where they are ambiguous (which the Riley case held was not true here).
Groton Bridge Mfg. Co. v. Alabama V.R. Co., 80 Miss. 162, 31 So. 739; Smith v. State, 99 Miss. 859, 56 So. 179.
If we are mistaken as to the competency of the engineer's testimony as far as it went it is certainly just as true as anything can be true that the learned court below was correct in not permitting it to control this case. We maintain, with deference, that it makes no difference on earth what any term of the contract meant to the engineering profession but the law is bound to be that the contract means what the parties understood it to mean.
Tufts v. Greenwald, 66 Miss. 360, 365, 6 So. 156.
Both on the authority of the Riley case and on the testimony of the engineer it is our position that this contract is bound to have meant exactly what it was held to mean in the Riley case.
The authorities cited by the learned counsel support the very position we are taking and show, we think, beyond all doubt that the court correctly decided the Riley case on the very same point.
Hattiesburg Plumbing Co. v. A.E. Carmichael, 80 Miss. 66, 31 So. 536; 22 C.J. 1203.
In the Riley case the contract for taking over the road was made in 1925. It was made in this case in 1929. Both contracts were made under the same law. That law was Chapter 278, Laws 1924. While Section 1 of those laws was amended by Chapter 217, Laws 1926, the amendment merely named the roads involved leaving the law unchanged. There is nothing, we submit, in this law which required a bridge to be up to any standard before the Commission could take it over or which justifies the argument that the bridges were not considered as parts of the roads. On the other hand, the reverse is true as readily appears by the provision of Section 2 of said Chapter 278 authorizing the Commission to accept the "road" without accepting the bridge and take over the latter at a later date.
Jefferson Davis County v. Riley, 158 Miss. 473, 485, 129 So. 324.
After the amendment of Section 1 of Chapter 278, Laws of 1924, by Chapter 217, Laws of 1926, the road involved here was expressly required to be "maintained by the state highway department" and it is also specifically provided that as to the roads enumerated "no county shall be required to pay from their own county funds any part of the cost of the maintenance of any road within such county, which may be taken over by the state highway commission for maintainence." The proviso in this section is only that the county shall construct the "link" before it is placed under the jurisdiction of the State Highway Department and when this is done the department is required to take it over on the tender of the county. Keeping this provision in mind we are bound to conclude that there is nothing in these laws to support the contention that the learned court below was not bound by the written contract and the opinion of this court in the Riley case.
If in 1929 after the making of this contract the commission did not acquire jurisdiction of this bridge as a part of the road it certainly did so under the laws enacted thereafter.
Code of 1930, Chap. 122; Code of 1930, Secs. 4996, 4997, 5001, 5021; Laws of 1930, Chap. 47, Sec. 7, subd. (a); Laws of 1938, Chap. 199.
It is argued, however, that the contract of 1929 does not mean what it says and what this court held it meant in the Riley case for the reason that in January, 1931, the Highway Department wrote a letter to the county board offering to take over this road except bridges and the county accepted the offer. In January, 1931, when this transaction took place, the Commission had already acquired and the county had lost all jurisdiction of this road. Included as a part of the road was this bridge. The Commission by its letter was, therefore, doing no more than to offer to take over something which it had already had for exactly two years. Its purpose was to turn back to the county the bridge which it had taken over as a part of the road and the reason this was done was because of the decision of the Riley case. This transaction was, we have no doubt, absolutely void and of no effect whatever upon the situation as it existed under the contract of 1929.
Learned counsel does not rely upon this 1931 transaction as something within the authority of the Commission and the county board to do but takes it as evidence of what he calls "administrative construction" to show that the bridge was not taken over by the order of 1929, according to the contemporaneous construction of the parties. If there ever has been any such construction placed on this contract at all it certainly had its beginning after the decision of the Riley case in September, 1930. If, according to the construction of the contract by said letter of December, 1930, and order of January, 1931, this bridge by the language of the contract of 1929 was not included as a part of the road, it is manifest that such a construction of the contract must be disregarded altogether as being in square conflict with the settled law.
State ex rel. Collins, Attorney General, v. Grenada Cotton Compress Co., 123 Miss. 191, 85 So. 137; State ex rel. Gully, State Tax Collector, v. Mutual Life Ins. Co. of New York, 189 Miss. 830, 196 So. 796; Anderson v. Love, 169 Miss. 219, 151 So. 366; Mississippi Cottonseed Production Co. v. Stone, 184 Miss. 409, 184 So. 428.
Learned counsel realizes that an affirmance of this case is imperative unless it is distinguished from the Riley case above referred to. This written contract of 1929 is admitted by all parties to have been and to be a valid one. Its construction is again before this court. Under it vested rights have been created and now exist. Under this form of contract the Highway Commission certainly took over the bridges on the roads of Jefferson Davis County. Under this same contract the Commission argues that it excepted the bridges. Whether the Commission is right or wrong in its position here is the question now before the court. We submit that it is wrong. If not and if this case shall be reversed, this much is clearly true: (1) The Riley case must be overruled, and (2) The law of this contract has become one thing in one of the counties of this state and a different thing in another county.
Argued orally by Russell Wright, for appellant, and by Cowles Horton, for appellee.
By Chapter 218, Laws 1926, the legislature designated as a state highway a road partly in Grenada County, described as follows: "A road from a point near Greenwood to a point on federal aid road near Holcomb." This road was afterwards designated as State Highway No. 7. The bridge across Cane Creek on this highway in Grenada County collapsed in 1943, and the Attorney General brought this action in mandamus to compel the board of supervisors "to repair with reasonable diligence the bridge across Cane Creek."
At the January, 1929 term of the board of supervisors an order was entered, under Section 2, Chapter 278, Laws 1924, accepting the proposal of the State Highway Department to take over the road "except all drainage structures." It was supposed by the Highway Department that exception by the term "drainage structures" would except bridges, and the bridges on this road were not in point of fact taken over by the Highway Commission. This court held however, in Jefferson Davis County v. Riley, 158 Miss. 473, 129 So. 324, 130 So. 283, decided on October 13, 1930, that bridges are not within the term "drainage structures," and because of this decision the trial court held in the present case that the bridge is in point of law under the jurisdiction of the State Highway Department even if never actually taken over by it, and the petition was dismissed.
Prior to the decision in Jefferson Davis Co. v. Riley, the legislature, by Chap. 47, Laws 1930, had passed a comprehensive act covering the subject of state highways. The road here involved was placed by that act among the class to be known as secondary state highways, and Section 2, Chapter 278, Laws 1924, under which the agreement of January, 1929 had been made, was repealed. The effect of the repeal was that every right created under or by virtue of the repealed statute disappeared with the repeal, save as to vested rights, Deposit Guaranty Bank Trust Co. v. Williams, 193 Miss. 432, 438, 9 So.2d 638; but there are no vested rights, beyond legislative control, in a contract solely between two administrative agencies of the state government. See 12 Am. Jur. Const. Law, Sec. 417, pp. 49-50.
We must look then to Chapter 47, Laws 1930, to see what was done about this road in lieu of what had been done under the repealed statute, and we find that by Section 7 of that chapter, and see also Chapter 216, Laws 1930 (Sec. 4996, Code 1930), it was enacted that "Highways under maintenance by the State Highway Department at the date of the passage of this act shall be continued under maintenance by the Commission." And Section 11 of said Chapter 47 provided that "it shall be the duty of the State Highway Commission to carry out all contracts and agreements . . . heretofore or that may be hereafter made or entered into with any county, according to the provisions and terms thereof touching any road that has heretofore been designated as a State Highway . . . [and] to maintain all roads which are now . . . under control and maintenance of the State Highway Commission, . . . the purpose of this provision being to preserve the status quo of said highways insofar as such highways have been taken over, and . . . jurisdiction have been assumed by the State Highway Commission."
It is undisputed that the road part of this particular highway was under maintenance by the state highway department when the Acts of 1930 were passed, but it is shown that the bridges, of which the bridge here in question was one, had not been brought up to state standards and, as already stated, have never been actually taken over for maintenance by the State Highway Department, and likewise as to hundreds of others in secondary highways in all sections of the state. In this situation, following the Acts of 1930, the county and the Highway Commission, in January, 1931, made another agreement, reciting that it was "for the purpose of clearing our records" and apparently "to preserve the status quo," to use the language of Section 11, Chapter 47, Laws 1930, whereby it was expressly stipulated that the bridges on this road had not been brought up to state standards and that for the maintenance of this highway by the State Highway Department, the bridges would not be included, and such has been the situation and the course of administration between the counties and the State Highway Department, as regards secondary highways, throughout the state down to this day.
Here, then, has been a uniform course of conduct pursued now for some fourteen years since the Acts of 1930 and of such an outstanding and highly important nature that it could not have escaped the attention of members of the legislature and yet, although many sessions of the legislature in that time have come and gone, nothing has been done about it; from which it is to be assumed that the legislative department, which has the primary duty in the premises, has been content that the stated method of administration as between the counties and the State Highway Department under the agreements made subsequent to the Acts of 1930, should be followed and continue to be followed.
This being true, this court ought not to attempt to untangle these matters by judicial pronouncement unless unavoidably necessary in the disposition of a presented case. It is not necessary to a disposition of the present appeal that we decide the question whether this bridge is under the jurisdiction of the county or whether under the State Highway Department, for the result under either view would be the same, — the judgment would be affirmed.
If we should concur in the opinion of the trial court that the bridge is under the jurisdiction of the State Highway Department, the judgment would be affirmed, of course. But if we took the opposite view and that the bridge has remained under the jurisdiction of the board of supervisors, we would still have to approve the action of the trial court on the ground that the court has no power or authority to tell the board of supervisors in specific terms what kind of a bridge it shall maintain at the location in question. No such specifications have been prescribed by the legislature, so far as we can find. It is not averred in the petition that the board has failed to provide and maintain a bridge adequate for travel in lieu of the collapsed bridge, and it is observed that the board, in its answer, avers that "a bridge has been constructed across Cane Creek a few yards south of the Highway 7 and the same is being used by the traveling public in the transversing of said Highway No. 7." For all that the record before us discloses, the substituted bridge at present in use represents a measure of utility and suitability beyond which our power to control by mandamus could not extend, — if the power exists at all as to the kind of bridge that is to be supplied.
Moreover, there is no allegation in the petition nor any proof in the record to show that the board has not done all that it reasonably could have done or can at present do about this bridge. We must take judicial knowledge that materials for permanent bridge construction are covered by all sorts of war priorities, beyond the power of the board of supervisors, and even if the court could direct the board as to what kind and character of bridge it should erect and precisely where, such directions should not issue under present conditions. See 34 Am. Jur., Mandamus, Secs. 34, 191, 197. And Board of Sup'rs v. Lee, 147 Miss. 99, 103, 113 So. 194; Thomas v. Price, 171 Miss. 450, 456, 158 So. 206; City of Jackson v. McPherson, 158 Miss. 152, 155, 130 So. 287; Loeb v. Board of Trustees, 171 Miss. 467, 473, 158 So. 333; State v. School Board, 181 Miss. 818, 830, 181 So. 313.
We therefore dispose of this appeal on the ground, and no other, stated in the two next preceding paragraphs of this opinion, and affirm. And all that has above been said other than the specified paragraphs is to be considered as discussion introductory thereto and not as decision.
Affirmed.