State Ex Rel. Franklin v. Raborn , 60 S.C. 78 ( 1901 )

April 1, 1901. The opinion of the Court was delivered by This is a proceeding in prohibition to restrain respondents from changing the public highway at or near Kaolin, in the county of Aiken, from discontinuing the use of the old road at said point, from mining the said highway at said point, or otherwise obstructing the old highway. The cause was heard by Judge James Aldrich upon a return to a rule to show cause and affidavits pro and con, who in an elaborate opinion, herewith reported, dismissed the application.

We will discuss the grounds of appeal in a general way and briefly. Prohibition is proper only when the inferior tribunal acts without jurisdiction or in excess of its powers, and will not lie to correct irregularities, or errors of law or fact. State v. Wakely, 2 Nott McCord, 411; State v. Road Commissioners, 3 Hill, 314;State v. Kirkland, 41 S.C. 36.

By the act of 1896, 22 Stat., 227, amending the county government act of 1893, 21 Stat., 481, and by the act of 1900, 23 Stat., 286, amending sections 3 and 4 of said act of 1896, it is clear that the respondents as county commissioners of Aiken County had power to "alter roads so as to make them more useful" and to "change the location of old public roads where in their judgment such change would be for the material interests of the traveling public." It is contended, however, that such jurisdiction cannot be exercised at an extra meeting of the board, as in this case attempted. This contention is correctly disposed of by the Circuit Judge, who shows that sec. 9 of the county government act of 1893, 21 Stat., 483, authorizes extra meetings of the board on the call of the chairman or at the written request of three members of the board, and that this provision is not inconsistent with, and, therefore, not repealed by sec. 2 of the act of 1899, 23 Stat., 114, requiring that the board shall meet monthly, instead of quarterly, as provided in the act of 1893. The requirement to meet once in each month is in effect a requirement to meet not less than once a month, but is not a prohibition to meet oftener. Should the business of the county require an extra meeting, it is competent for the board, or a quorum thereof, to hold such meeting. We agree also with the Circuit Court that the jurisdiction of the board to act in the premises was not affected by any failure to give the public notice of the intended change of location, for the reason stated that the act of 1883, appearing in the Revised Statutes as sec. 1171, etseq. (which prescribes a method of procedure in laying out or changing the location of public highways, which procedure includes the posting of written notice in two public places within the several townships through which such highway shall pass, designating the time and place for considering the expediency of altering or changing the location of such highway at least twenty days before the day appointed for such meeting, c.), is repealed by the act of 1893, supra, which does not prescribe any such notice, and only requires notice to be given to the persons owning the land where such alteration is to be made. Even if the act of 1883, supra, is not repealed in this regard by the act of 1893, supra, we do not think the act of 1883 is applicable to this case, where the change of road is a mere deviation of the line of the old road at one point and wholly upon the land of the respondents, McNamee Co. The change did not involve the laying out of a new road, nor was the change so substantial and material as to be in effect the relocation of a highway. The act of 1883 contemplated the opening of a new road or such extensive changes in an old road as to practically amount to a new road. It would be unreasonable to suppose that the legislature contemplated the cumbersome and delaying machinery provided in the act of 1883, in cases where it was deemed desirable to make slight alterations in a highway, in avoiding obstacles, in providing for a better grade, or improving the safety of the road. In the case of Commissioners v. Murray, 1 Rich., 335, construing the act of 1825, which prohibited the opening of a new road without three months previous notice by advertisement in the settlement through which the intended road is to be opened, the Court held that the commissioners had power without giving notice to make alterations or deviations in a road which did not practically constitute the opening of a new road, and that the requirement as to notice did not apply.

It cannot be doubted that the statutes invest the board of county commissioners with power and discretion to make alterations in highways. Conceding this, appellant contends that the commissioners in this instance went beyond their powers and abused their discretion in making the alteration complained of, not for the material interests of the traveling public, but in the private interest of McNamee Co. It may be stated here that McNamee Co. were the owners in fee of the land occupied by the old road near their kaolin mine, and desired to mine for kaolin in the land covered by the road. To sustain the appellant's last contention would require us to find, as matter of fact, that the board was wholly influenced in the private interest of McNamee Co. and was disregardful of the interest of the traveling public. Such a conclusion would conflict with the records in office of the commissioners. In the resolutions authorizing the change in the road, it appears that the resolutions were passed after personal inspection of the premises, and because the commissioners were convinced that the old road is already dangerous and gradually becoming more so, and that the proposed change would be safer, and if made with proper grades will best serve the interests of the public. The commissioners were careful to cause McNamee Co. to give bond for the proper grading and filling of a new road, and for its maintenance without expense to the county for five years. The fact that the petition by McNamee Co. showed that McNamee Co. desired the change in their own interest, has no weight in determining what motive influenced the commissioners. Whether the commissioners abused their discretion and were influenced by improper motives, was a matter which it was incumbent upon the relator to show, with the presumption in favor of proper official conduct. Many affidavits were submitted to the Circuit Judge on this application, those in behalf of the relators tending to show that the proposed change was not in the interest of the traveling public, and those in behalf of the respondents tending to show that the change was beneficial to the public. It is not necessary for us nor was it necessary for the Circuit Judge to decide this particular issue. It is sufficient to say that if all these affidavits had been originally submitted to the commissioners and they had decided to change the road, because in their judgment it was to the material interest of the traveling public, such decision could not be reviewed and annulled by means of writ of prohibition.

The judgment of the Circuit Court is affirmed.