Summer v. State Highway Com.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: MAP IS ELECTRONICALLY NON-TRANSFERRABLE.] January 10, 1928. The opinion of the Court was delivered by This action was brought by certain taxpayers of Newberry County for the purpose of enjoining the State Highway Commission and the Newberry County Highway Commission from constructing a graded top-soiled road on a section of Route 2 from the intersection of Route 2 and the old state road to Clinton, approximately one mile south of Newberry, to the intersection of Routes 2 and 19, approximately one mile north of Newberry, a distance of 3.39 miles, at an estimated cost of $20,000.00. On the summons and verified petition Judge C.C. Featherstone, on April 21, 1927, granted a temporary order of injunction and a rule to show cause why a permanent injunction should not be granted. Hearing was had on the rule on April 29, 1927, and Judge Featherstone subsequently issued an order discharging the rule and dissolving the temporary injunction. From this order the petitioners appeal.

The taxpayers' petition, the return of the State Highway Commission, the return of the County Highway Commission, and the replies to both returns, will be incorporated in the report of the case. Exhibit I, showing a plat of the section of road involved, will also be included in the report.

The State Highway designated as No. 2 in the Pay-As-You-Go Act passes from Lexington County, near Little Mountain, northwesterly by way of Prosperity through the Town of Newberry by way of Adelade Street, Glenn Street, Main Street, and College Street, and from thence to the Laurens County line by way of Kinards. So much of this highway as is necessary for the consideration of this case is shown on the plat.

During the year 1926, the State Highway Commission hard-surfaced Highway No. 2 from the Town of Prosperity to the corporate limits of the Town of Newberry. At its 1927 session the General Assembly passed an Act approved on March 14, 1927, authorizing the Treasurer of Newberry County and the Chairman of the Newberry County Highway Commission to borrow not exceeding $400,000.00 for the construction of certain highways or sections thereof, in Newberry County, and to pledge as security therefor, such reimbursement agreement or agreements as the Newberry County Highway Commission might make with the State Highway Commission. During the same month the State Highway Commission and the Newberry County Highway Commission entered into a reimbursement agreement by the terms of which a section of Highway No. 2 from the city limits of Newberry to the Laurens County line near Kinards, a distance of approximately 12.5 miles, is to be graded and hard-surfaced at an estimated cost of $365,000.00. By the same reimbursement agreement the section of Route No. 2 in controversy is to be granted and top-soiled at an estimated cost of $20,000.00. This section is shown on the plat by line A-C-B.

The appellants contended that the proposed grading and top-soiling of this section of Highway No. 2 is not authorized by law and that the State and County Highway Commissions have no authority to enter into the reimbursement agreement for constructing, grading and top-soiling this section; and that the construction, grading and top-soiling of this section would be a useless, reckless and extravagant expenditure of the public funds without adequate recompense to the taxpayers and the traveling public and would divert travelers away from the Town of Newberry and thus be very detrimental to the citizens and taxpayers of the Town and County of Newberry and would be of practically no benefit to the citizens and taxpayers of Newberry County.

The respondent took issue with the appellants on these questions.

At the hearing, before Judge Featherstone, affidavits were submitted on both sides, and Judge Featherstone, as stated, refused to make the injunction permanent and dissolved the temporary injunction.

The questions involved in the appeal are thus stated by the appellant's counsel:

"First. Did the State Highway Commission and the County Highway Commission have the authority under the Statute Law of the State to construct the section of road in question?

"(a) Was such authority given under the Act of 1927, which we will designate as the $400,000.00 Act? Acts of 1927, p. 990.

"(b) Did the Act of 1924, known as the `Pay-As-You-Go' Act, authorize the construction of this section as a belt line? Acts of 1924, p. 1193.

"(c) Did the Act of 1927, which we will designate as Ratifying Act, ratify and confirm the addition of this section? Acts of 1927, p. 278.

"Second. Is the construction of this section an extravagant and unwarranted expenditure of money and detrimental to the citizens and taxpayers of the Town and County of Newberry and, thus, an abuse of the discretion of the State Highway Commission?"

I. (b) As far as this case is concerned, the road designated in the Pay-As-You-Go Act of 1924 as Route No. 2 has been in part constructed and is in part in process of construction and passes through the Town of Newberry, which is specifically mentioned in the Act as one of its control points. No question is raised as to the construction of this highway along the designated route, and this case is thus differentiated from Gaston v. State Highway Department,134 S.C. 402; 132 S.E., 680, in which the question was raised whether the road proposed to be built by the State Highway Commission conformed to the route designated in the Act.

The decision of the point now under consideration revolves about the following provision of the Pay-As-You-Go Act:

"The State Highway Commission is hereby authorized to establish such belt lines not exceeding two miles in length as it deems proper and justifiable and to construct and maintain such belt lines from the funds herein provided." Section 2.

The appellants contend that the section of road in controversy, being more than two miles in length, is not authorized under this provision.

The respondents point out that Route No. 22, the road to Winnsboro, crosses the section in controversy (C on the plat) and divides it into two segments, 1.3 miles and 2 miles in length, respectively, and contend that the section constitutes in reality two belt lines (A-C and C-B), each of which falls within the limitation of the Act as to length.

In 7 C.J., at page 1044, the following is given as a definition of "belt railroad":

"A railroad encircling a city or other restricted territory, intersected by other railroads, not having a common right of way into the territory for the purpose of transferring and switching cars from one railroad to another with which it is not otherwise connected, or for transferring cars between such railroads and industrial plants located in the neighborhood of but not on such railroads."

From the nature of things, the term "belt line" is of infrequent occurrence in the connection obtaining in the Act with reference to public roads and highways, and while this definition clearly would not be entirely appropriate to the term "belt line" as used in the Act, this Court will endeavor to so construe the term, in the light of its general significance and the provisions of the Act, as to give effect to the evident intention of the Legislature.

We think that the section of road in controversy is, under the facts of this case, such a road as would come within the scope of the term "belt line," and, further, that it constitutes two "belt lines," within the purview of the Act, rather than one. The section is divided into two segments by another state highway, the Winnsboro road, which forms a terminus for each segment; the southern segment (A-C on the plat), with the section of Highway No. 2 which passes from the southern end of the proposed section into the Town of Newberry to an intersection with the Winnsboro road, and the Winnsboro road, forms one distinct loop; while the northern segment (B-C on the plat), with the Winnsboro road, and the section of Highway No. 2 from its intersection with the Winnsboro road in the Town of Newberry to its intersection with the northern end of the section in controversy, constitutes another distinct loop. The construction of neither of the segments (A-C and B-C) interferes with or displaces the construction of any road designated by the Act; either one of the segments, without the other, forms part of a loop, skirts a busy city, and enables travelers, if they so desire, to eliminate crowded streets from their route, and materially shortens the distance to be traveled by one not wishing to go through the Town of Newberry. The State Highway Commission might legally build either one of the segments, without building the other, or it might build the two segments at different times; and the mere fact that both segments are to be built at the same time does not change the fact that they are parts of distinct loops or belts. We therefore, conclude that the State Highway Commission has authority, under the Pay-As-You-Go Act, to construct the section of road in question.

(c) On March 16, 1927, the State Highway Commission in regular session added the section in controversy to the State Highway System. At its 1927 session the General Assembly passed an Act, approved by the Governor on April 14, 1927, which contains the following language:

"The additions made to the State Highway System by the South Carolina State Highway Commission since the passage of the 'Pay-As-You-Go' Act be, and the same are hereby, confirmed and ratified. Where any additions have been made for construction, the cost of such construction, whether by reimbursement or otherwise, shall be charged to the allotment of the county or counties in which the individual project is located." Section 1.

The appellants point out, however, that this Act, while approved on April 14, was introduced in the Legislature in the previous January, and contend that the "additions" therein referred to include only additions made prior to such introduction. We do not agree with this contention. The Act, in one part, specifically confirms and ratifies the additions made to the State Highway System by the State Highway Commission since the passage of the Pay-As-You-Go Act, and, in another part, provides that the Act shall take effect upon its approval by the Governor. This approval was given on April 14, and there is nothing whatever in the language of the Act to indicate that the Legislature intended any distinction as to the effective dates of its parts, nor anything to indicate that any part of it was referred back to any earlier date, or that the "additions" confirmed were additions effective on any other date, than the date of its approval. The whole Act clearly became effective in all its parts upon its approval by the Governor. We, therefore, conclude that even if the State Highway Commission did not have authority under the "belt line" provision of the Pay-As-You-Go Act to add this section of road to the State Highway System, the Legislative enactment of April 14 clearly confirmed the addition of this section previously made by the commission.

(a) The Newberry County Reimbursement Act of 4 1927 provides, in part, as follows:

"The Treasurer of Newberry County and the Chairman of the Newberry County Highway Commission, be, and they are hereby authorized and empowered to borrow the sum of Four Hundred Thousand ($400,000.00) Dollars, if so much be necessary, for the construction of certain state highways, or sections thereof, in Newberry County. The officers herein referred to are authorized to issue notes, or other obligations of the county, and shall pledge as security for the same such reimbursment agreement, or agreements, as the Newberry County Highway Commission may make with the State Highway Commission of South Carolina." Section 1.

The appellants contend that even if the section of road in controversy is a part of the State Highway System, no part of the $400,000.00 provided by this Act can be used in the construction of the road because the Act was approved by the Governor on March 14, 1927, becoming effective at once, and the section of road was not made a part of the State Highway System till two days later, March 16, 1927, and in support of their contention lay great stress upon the use of the word "certain" in the Act. They concede that the Act is discretionary as to the selection of state highways to be constructed, in that it does not specify the roads for which the money may be used, but maintain that the exercise of such discretion is limited to roads which were a part of the highway system at the date of approval of the Act by the Governor, and insist that the "certain state highways or sections thereof" referred to in the Act include only such state highways or sections thereof as were capable of being ascertained and definitely fixed as part of the State Highway System at the date of the approval of the Act.

We do not think this contention is sound. In 25 R.C. L., at page 959, we find:

"The words of a statute must be taken in the sense in which they were understood at the time when the statute was enacted. If the language used is broad enough to include unknown things which might spring into existence in the future, they would be deemed to come within, and be subject to, the evident meaning of the terms used."

Again, in 25 R.C.L., at page 778, it is said:

"A general law may, and frequently does, originate in some particular case or class of cases which is in the mind of the Legislature at the time, but so long as it is expressed in general language the Courts cannot, in the absence of express restrictions, limit its application to those cases, but must apply it to all cases that come within its terms and its general purpose and policy."

In Smith v. State Highway Commission, 138 S.C. 374;136 S.E., 487, this Court quoted with approval from 36 Cyc., 1151:

"The rule that statutes in pari materia should be construed together applies with peculiar force to statutes passed at the same session of the Legislature; it is to be presumed that such Acts are imbued with the same spirit and actuated by the same policy, and they are to be construed together as if parts of the same Act." — and held that it was the duty of the Court to harmonize all legislative enactments pertaining to the same subject if possible.

It not infrequently occurs that an Act, general in nature, which applies only to a particular case or class of cases at the time of its enactment applies with equal force to any case or class of cases which thereafter arises and comes within the general terms of the Act. While the section of road in controversy did not become a part of the State Highway System until after the approval of the Newberry County Reimbursement Act, still, when it was properly and regularly made a part of the system, the terms of the Act applied to it with the same force and effect as if it had been a part of the system at the date of approval. We do not think that the word "certain," without further amplification or explanation, so qualifies the general nature of the language of the Act as to limit its application to the highways existing at the time of its passage. This view is strengthened by the fact that both the reimbursement Act and the Act confirming the section in question as a part of the State Highway system were passed at the same session of the Legislature; we think it accords more with the harmonizing of the two Acts — which are in pari materia so far as this case is concerned — to construe the language describing the roads for the construction of which the money might be used as being general in nature and effect rather than to attach to it a limited significance, justified solely by the unsupported use of the word "certain." We therefore conclude that the State Highway Commission and the Newberry County Highway Commission had authority under the law to make the reimbursement agreement for the construction of the section of road in controversy.

II. The defendant further contends that, even if the construction of the section of road in controversy and the reimbursement agreement for such construction are authorized by law, still its construction would be an extravagant and unwarranted expenditure of public funds and an abuse of discretion by the State Highway Commission.

This contention cannot be sustained. The construction of this section of road does not interfere with the construction of the highway designated as No. 2 in the Pay-As-You-Go Act. Highway No. 2 has already been hard-surfaced to corporate limits of the Town of Newberry on the south and will be hard-surfaced, under the reimbursement agreement from the corporate limits on the north; thus there will be a paved road along Route No. 2 through the Town of Newberry and out again for travelers going either north or south who desire to visit that beautiful and hospitable city. The section in controversy, however, will enable travelers who have not time or inclination to visit the city to travel by an almost straight line instead of through the turns and angles of the city streets, to save considerable time and expense, and to avoid the delay and inconvenience incident to passing through the congested streets. It appears from the record and from an examination of the plat that, when work is begun on Highway No. 2 north of the town, travel will necessarily be diverted from Highway No. 2 to the section of road in controversy, and the construction of this section should put it in good condition to accommodate the extra travel. The cost of constructing this section does not appear unduly great — $20,000 for 3.39 miles — and is comparatively small in view of its manifest advantages.

It may be that some of the petitioners who live in the Town of Newberry will lose a few dollars' trade from travelers who proceed along the road in controversy rather than through the town, but, viewing the matter as a whole, this is an unimportant consideration, and the few possibly injured persons must give way, in the spirit of democracy, to the public good.

The judgment of the Circuit Court is affirmed.

MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE and CARTER concur.

MR. JUSTICE COTHRAN concurs in result.