Lee County v. Mayor of Smithville , 154 Ga. 550 ( 1922 )

Hines, J.

(After stating the foregoing facts.)

The contention that the board of commissioners of roads and revenues of Lee County can establish a public road only by the method provided in the Civil Code (1910), §§ 640 et seq., is not sound. This method is not exclusive, but is cumulative. Where lands are dedicated by their owners for a public road, the county authorities in charge of laying out and constructing public highways can accept such dedications, and open and build a new public road thereon, without complying with the requirements of said sections of the Code. Pmiele v. County of Morgan, 131 Ga. 385 (68 S. E. 300). It appears that, as far as this work has progressed, this road has been built upon rights of way which had been dedicated by the owners of lands on which it is located. So this situation brings this case within the ruling of the case just cited. But the defendants introduced evidence to show that this highway, when completed, would pass over lands whose owners had not dedicated any portions thereof for this purpose. Under these circumstances the principle referred to above would not apply. In view of this fact, would the county commissioners have to pursue the method of laying out and building public roads laid down in the code sections just cited? If they were laying out a county public road, in .their capacity of county commissioners, they would have to track this law. If it became necessary to condemn a right of way for a public road, which they as such commissioners are authorized to build, they would have to follow the scheme pointed out in the code sections cited. Mitchell County v. Hudspeth, 151 Ga. 767 (108 S. E. 305); Commissioners of Decatur County v. Curry, 154 Ga. 378 (114 S. E. 341).

Prior to the act of 1919 (Ga. Laws 1919, pp. 848 et seq.), by which the State Highway Commission was reorganized, there were two ways of laying out and building public highways in this State.One was the county method, which is defined in the Civil Code, §§ 640 et seq. The other was the municipal method, whereby towns and cities were given in their charters jurisdiction over the laying out, building, changing, closing, and working streets within their limits. In pursuance of the latter method, the charter of Smithville gives to its mayor and council “full and complete control of the streets, alleys, sidewalks, and squares of the city, with power to open, lay out, widen, straighten, or otherwise change such streets.” Ga Laws 1901, p. 633. Under these systerns, ordinarily county public roads and municipal streets are not treated as the same; and when provision is made for one, it is not usually construed as including the other. Board of Commissioners v. Americus, 141 Ga. 542, 550 (81 S. E. 435). So when a municipal corporation is created, it becomes vested with jurisdiction over the highways within its limits. Almand v. Atlanta Consolidated St. Ry. Co., 108 Ga. 417 (34 S. E. 6); Commissioners of Polk County v. Cedartown, 110 Ga. 824 (36 S. E. 50); Board of Commissioners v. Americus, supra; Marshall v. Floyd County, 145 Ga. 112, 119 (88 S. E. 943).

But the legislature can adopt a State system. The State, through its legislature, has as much power and control over the laying out, construction, maintenance, and closing of the highways, streets, lanes and alleys of municipal corporations as it has over other public highways. It may change, alter, or abolish either class of these highways at will. The power to have opened, worked, repaired, improved, or closed the public highways, streets, and roads may be exercised by the legislature in such manner and way, and under such circumstances, as it may deem best. There is no constitutional or other limitation on this power in this particular matter. City of Atlanta v. Gate City Gas Light Co., 71 Ga. 107; Hayden v. Atlanta, 70 Ga. 817. The legislature can, of course, delegate this power to local, inferior bodies (37 Cyc. 51), or it can exercise it through its own agencies. It is the duty of the State to lay out public highways and improve them in cities as well as in unincorporated country districts. State v. Atkin, 64 Kan. 174 (67 Pac. 519, 97 Am. St. R. 343), affirmed, 191 U. S. 207 (24 Sup. Ct. 124, 48 L. ed. 148); 13 R. C. L. 79. It may exercise this power directly, or may delegate it to municipalities, the counties of the State, or to any other constituted body. Byars v. State, 2 Okla. Cr. 481 (102 Pac. 804, Ann. Cas. 1912A, 765). The whole subject is under the control of the State in its sovereign capacity, and this power is to be exercised through its legislature. 13 R. C. L. 79. It can delegate its exercise to a municipality within its limits. It can withdraw this power at will from the municipality, in whole or in part. In the exercise of this undoubted power, the State has adopted a system of locating and building what are denominated “ State-aid Eoads;” and this system is provided for in the above act by which the State Highway Department was reorganized. In the caption of the act it is declared that it is an act to create a system of State-aid roads and to provide for the designation, maintenance, and improvement of the same; to create and provide for a State-aid road-fund, and for the control and management thereof; to provide for the paving of said State-aid roads of the State, or in co-operation with the counties, or with the. United States Government, etc. The first section of art. 4 of this act declares “that there is hereby created a system of State:aid Eoads in this State for the purpose of interconnecting the several county seats of the State, which shall be designated, constructed, improved, and maintained by the State under the State Highway Department, and the provisions of law.” By.section 1 of art. ñ of this act, the power and duties of the State Highway Department are defined as follows: “ To have charge and control of all road or highway work designated or provided for or done by the State or upon State-aid Eoads; to designate, improve, supervise, construct, and maintain a system of State-aid Eoads, provided that no road shall become a part, of said system until the same shall be so designated by the State Highway Board by written notice to county road authorities concerned; . . to

provide for surveys, maps, specifications, and other things necessary in designating, supervising, locating, improving, constructing or maintaining said State-aid Eoads, or such" other public roads as may be provided under this act.” By section 2 of art. 5 of this act it is provided that “the Governor shall appoint the State Highway Board, who shall at once proceed to designate the system of interconnecting county-seat public roads to be known as State-aid Eoads.” These roads shall embrace two roads starting from the county seat of each county, which shall connect with the designated State-aid roads of the adjoining county or counties. The State Highway Board may designate additional main and traffic roads, when necessary to complete the interconnecting system, where unusual topographical conditions are met with, or to serve important market points, where the county-seat to county-seat routes involve substantial loss of distances. Paragraph 5 of section 2 of this article provides “that when any portion of the designated State-aid road system is taken under the jurisdiction of the State Highway Department by written notice as prescribed in article 5, section 1, hereof, the county or counties in which said portion is located shall not thereafter be required to levy taxes for the construction or maintenance of said portion, or to use any of its funds or road forces in the construction or maintenance thereof.” Section 5 of said article declares “ that the State Highway Board shall have authority to plan and to construct, improve and maintain said State-aid Roads in any manner they may deem expedient, by free labor, by contracts, or by any other method or combination of methods, in their discretion. In so doing said Highway Board is hereby authorized and empowered to condemn and acquire a right of way not exceeding 100 feet in width for maintaining, improving and constructing said State-aid Roads.”

By this act, some' of the provisions of which are set out above, the legislature has created a State system for the location, building, and maintenance of public highways connecting the county seats of this State. This makes a new and third system for the building of public highways in this State. The method of their location, construction, and maintenance is fully provided for. It may be said that under section 6 of article 5 of this act, the respective county road authorities are to furnish free to the State Highway Board all necessary rights of way for the designated roads in each county constituting a part of the system of State-aid roads; and that this would require the county commissioners to pursue first the method provided for in the Civil Code, § 640 et seq. We do not believe that this suggestion is good. These provisions of the code provide a method for determining the necessity for, and of establishing, public roads in the county. The highway act declares the existing necessity of public roads interconnecting the various county seats of this State. It declares how they shall be designated, located, and built. The machinery for establishing public roads in the counties of this State is entirely different from the method provided for the location and construction of these State-aid roads. For this reason, the county method plan does not apply to the State method of designating or locating and building State-aid roads. This provision of the statute, requiring the proper road authorities to furnish free rights of way to the State Highway Department simply puts upon the counties the burden of acquiring and furnishing these rights of way. The legislature has power to establish a State road, and tax the cost and expense thereof upon the county, without the approval of the people of the county. State v. Commissioners, 28 Kan. 431. If the State can put the whole cost of public roads upon the county, it can put upon the county the cost of rights of way for them. These county authorities will have to secure these rights of way as donations, or pay for the same When condemned by the State Highway Department, as provided in section 3 of article 6 of this statute. Thus, we are of the opinion that the provisions of the Civil Code, § 640 et. seq., are not applicable to the location and construction of these State-aid roads. It is insisted by counsel for the defendants, that the act reorganizing the Highway Department of the State does not give to that department this power. The reasoning is, that this statute only gives to that department power to build roads connecting county-seats, that the term, “ county-seat,” does not mean the lot or spot on which the county buildings are built, but the territory embraced within the town where the county seat is located, that you can build these State roads from the incorporate limits of one county-seat town to the incorporate limits of another county-seat town, and thus connect the county-seats, without appropriating their streets or building public roads within their limits; and that, in consequence of this fact and of the theory that one system is generally held not to encroach upon another system, the legislature has not granted to this department the power to build public roads within county-seat towns.- The obvious reply to this argument is, that we are not dealing with a county-seat town, but with the town of Smithville, which does not belong to that class. It is not a reasonable construction of this statute to hold that the State, in building these highways, must surround every incorporated hamlet, village, town or city which may be on the lines on which they are projected. This might render the location of these roads circuitous, expensive, and, in some cases, impossible:

If we were dealing with county-seat towns, we do not think that the construction which we are asked to place upon this act is the right one. The purpose which the legislature had in view in this legislation was to provide well-located, well-constructed, well-paved and well-maintained highways between county-seats, which should connect, and permit uninterrupted travel between all of. them in the State. As the Supreme Court of Kansas has said, “ it is of interest to the general public that the roads which lead from one county to another, and into and through every township and county in the State, should be kept free from impediments to travel, so that communication may be open and con-' venient from one end of the State to the other.” State v. Irrigation Co., 63 Kan. 394 (65 Pac. 681).

The evident purpose of the legislature was to build paved highways on which the public could travel from county-seat to county-seat, through county-seats to reach other county-seats, and on to the confines of the State. The contrary construction would require the State to build these highways to the limits of a town, which may not pave its streets, then skip to the other side, and begin the work agaip, leaving unpaved and impassable gaps within the town limits. The contrary interpretation would leave the State without connecting public roads. Continuous highwajrs would be composed of these State roads and municipal streets, the former under State control, and the latter under town management. If the towns and cities can prohibit the State from locating and building public highways within their limits, we see no reason why they could not refuse to permit the State to connect its roads with the streets within their limits; but one' would hardly go so far. The truth is, that the streets of the towns and cities belong to the State as do the county public roads. The legislature has given to the municipalities temporary control over the streets within their borders, which it can wholly withdraw or modify at will. So we reach the conclusion, that the State Highway Department, co-operating with the county commissioners of Lee County, can build this public road through the town of Smithville without its consent and against its will.

We are of the opinion, that the trial judge erred in refusing the injunction prayed for by the county, and in granting the injunction asked by the Mayor and Council of Smithville.

Judgment reversed.

All the Justices concur.