In the former opinion rendered herein on November 10, 1947, reported in 32 So.2d 555, the decree of the Chancery Court of Hinds County was reversed by a three to two decision here, owing to the absence and illness of the then Chief Justice. The views of Justice Roberds and the writer hereof, who were not in accord with the majority *Page 666 as to the proper construction of the statutes involved, were expressed in a separate and a specially concurring openion respectively. These two opinions would have been more appropriately designated if they had been rendered as dissents from the majority view, for the reason that they show that we were in accord in the main with the views of the chancellor to the effect that the statutes mean only what their language expressly declares.
The writer hereof, in specially concurring in the view that the counties were entitled to appraisement of the roads built at local expense, inadvertently assumed that he was bound by the decision in the case of State Highway Commission v. McGowan ex. rel., 198 Miss. 853, 23 So.2d 893, 24 So.2d 330, to such an extent that he would not be justified in dissenting from the majority opinion written in the present case, it now develops that in that case there was no issue as to what should be appraised other than the pavement on the highway, and in my opinion it is also now shown that this Court is without jurisdiction to entertain a suit against the State or its Highway Commission where an appropriation by the Legislature would be required to give any ultimate effect to its decision.
On the coming in of the Suggestion of Error herein, it became necessary for the Chief Justice, who had then resumed his duties, to take part in its consideration for the reason that his vote would have been controlling as to whether or not the chancellor should be affirmed if the other five judges should have adhered to their former views.
We therefore sent out a memorandum wherein we requested a response to the Suggestion of Error and for briefs on the question as to whether or not any suit could be maintained against the State in regard to the subject matter of this litigation. This question had not been theretofore raised by the Highway Commission, and consequently had not been previously briefed or specifically *Page 667 dealt with in any of our decisions involving the alleged right of the counties to recover as a debt claimed to be owing to them from the State.
After a careful study of the prior decisions of the courts and the rules announced by the textwriters cited in the briefs of counsel, it is my humble judgment that the whole subject matter of this litigation should be left to the determination of the Legislature for an entire want of jurisdiction thereof by the courts; that in the absence of an express statutory consent from the Legislature no suit can be maintained either against the sovereign or one of its governmental agencies where the ultimate object and purpose of such suit is, as here, to compel the payment of a debt alleged to be due from the State, and which must be paid, if at all, by funds provided by the Legislature; and it will be found that no such statutory consent is given in Sections 13 and 14 of Chapter 47, Laws 1930, now Sections 5003 and 5004, Code of 1930, and Sections 8035 and 8036, Code 1942, known as the Stansel Act, or in any other statute, which would confer upon the twenty-three counties and the several municipalities the right to sue and compel an appraisal by the State Highway Commission of the links of "pavement on" highways built at local expense prior to 1930, and of certain "paved highways" built at local expense subsequent thereto.
The majority decision has held the above quoted words, in each instance, to mean also rights of way, road beds, gravel and dirt roads built at local expense, whether paved at local or state expense, and the bridges, culverts, drains, and ditches, road signs and guard rails thereon, where they have become a part of a continuous paved highway; and that the counties are entitled to compel an appraisement thereof with the view of having adjudicated the amount of the State's alleged liability therefor, as a debt due them by the State, upon a failure of the Commission to cause the same to be appraised and pay the appraised value thereof, aggregating the probable *Page 668 sum of from $10,000,000 to $30,000,000 — an estimate made in the briefs on behalf of the Highway Commission and not seriously challenged by opposing counsel — resulting in a probable loss of approximately $15,000,000 in Federal Aid Funds to the State, since the reimbursements claimed by the counties are to a great extent for funds already once matched by the United States for local Federal aid projects.
If such authority to sue is asserted by these political subdivisions of the State on the ground that we took jurisdiction of the previous suits of certain counties in that behalf in the cases of Hancock County v. State Highway Commission, 188 Miss. 158,193 So. 808; Madison County v. Mississippi State Highway Commission, 191 Miss. 192, 198 So. 284; State ex rel. Cowan v. State Highway Commission, 195 Miss. 657, 13 So.2d 614; and State Highway Commission v. McGowan, 198 Miss. 853,23 So.2d 893, 24 So.2d 330; it is upon the theory that this Court would have authority to destroy the State's immunity from suit, which the Legislature had not surrendered. The legislative department, instead of the judicial, has the sole power or jurisdiction to grant such consent to sue the State where an appropriation by the Legislature would be necessary to make such a suit effective.
Moreover, in the Hancock County case, supra, we merely held that the remedy sought therein by mandamus could not be maintained in the name of the county but could only be maintained for any purpose upon the relation of the Attorney General or a District Attorney, in any matter affecting the public interest.
In the Madison County case, supra, the Court withdrew a former opinion in order to pretermit any decision on the point now under consideration, since it had not been briefed and the suit there was for a mandatory injunction, and was not maintainable as such in any event; and it was there said [191 Miss. 192, 198 So. 286]: ". . . Assuming for the purpose of this decision, and for that *Page 669 purpose alone, that the legislature . . . intended to create a liability and cause of action in favor of a local unit . . . the writ of mandamus (and not an injunction) is appropriately designed to afford the necessary remedy for that purpose." And we expressly said therein that "We pretermit the decision of any question pertaining to the right of appellant to any relief by appropriate proceedings in the premises . . ."
In the Cowan case the question of whether or not the State had given its consent to be sued in such a case was neither raised nor discussed.
Thereafter, the writer of the opinion in the Madison County case, supra, wrote a dissenting opinion in the case of State Highway Commission v. McGowan, supra, wherein attention was called to the fact that this Court had held in the case of State ex rel. Barron, District Attorney, v. Cole, Auditor, 81 Miss. 174, 32 So. 314, that no suit would lie to compel distribution to be made semi-annually of the fund known as the "Chickasaw School Fund," etc., even though such distribution was expressly required by Section 212 of the State Constitution, the ground of the decision being that even though the State had sufficient money to pay the demand, a legislative appropriation would be necessary since the constitutional provision was not self-executing. The same is true as to the statute involved in the instant case, as will be hereinafter shown.
In the McGowan case the right to sue the State was not challenged by the Highway Commission, the question was not briefed, the majority opinion did not address itself to this specific question, and the same was raised only in the dissenting opinion by the writer of this one, after the majority of the Judges had already decided the case and determined to order the appraisal as prayed for.
It is the unchallenged right of the Court to raise the question, and if need be of its own motion, as to whether the State has given its consent to be sued in a particular case, and we should not allow a former mistake of our *Page 670 own to prevent us from protecting this attribute of State sovereignty.
The provision of the Stansel Act which relates to the alleged duty of the Highway Commission to appraise and pay for such links of pavement on the highways is found in said Section 8036, Code 1942, wherein it is provided that: "Whenever in the due course of the construction program of the state highway commission the time shall be reached when any paved highway or section thereof heretofore built in whole or in part at local expense would have been regularly constructed as a part of such program, and connection is made with such paved highway and same becomes a part of a continuous paved state highway, the state highway commission shall cause to be appraised the pavement on said highway, or the portion or portions thereof that it is to be utilized as a part of the final location of the continuous completed paved state highway so connected. Such appraisal shall take into consideration the original cost of such pavement and the wear, depreciation and deterioration of same, and the state highway commission shall pay to the local unit at whose expense the road was constructed the proportionate part contributed or paid by said local unit represented in the then existing appraised value. . . ."
In the case of State Mineral Lease Commission v. Lawrence et al., 171 Miss. 442, 157 So. 897, 898, this Court, speaking through Justice Griffith, said: "There is no proposition of law which is better settled than the general rule that a sovereign state and its political subdivisions cannot be sued in the courts except upon the express statutory consent of that state. Numerous decisions of this court to that effect may be cited; but it is enough to note that this court, in banc in a recent case, State v. Woodruff [170 Miss. 744], 150 So. 760, has so held; and therein overruled a previous decision which had adjudicated that such consent could be worked out of a statute by implication, when express consent was absent from the terms of that statute." *Page 671
The Court had said in the case of State v. Woodruff [170 Miss. 744, 150 So. 762], mentioned in the foregoing quotation, that: "We hold that the state cannot be made liable to suit out of implication gathered from a statute or any group of statutes, but the right to sue the state must be expressly granted by statute without which express grant no allowance to sue the state exists." The Woodruff case had been pending in the courts for more than forty years, affording ample time for this announcement of the law to represent the matured judgment of the Court in the premises. Moreover, this well-established principle was reaffirmed by this Court on May 24, 1948, in the case of State v. Sanders et al., 203 Miss. 475, 35 So.2d 529, wherein the Woodruff and Lease Commission cases were cited as announcing the true rule.
The opinion in State Mineral Lease Commission v. Lawrence, supra, proceeds to illustrate the instances wherein the rule does not apply when an agency of the State is sued and the relief demanded requires no official affirmative action on the part ofthe State, nor the affirmative discharge of any obligation whichbelongs to the State in its political capacity, and the opinion in that case clearly recognizes that where an appropriation or expenditure from the State would be required to carry out the ultimate decision of the Court, the suit will not lie without the express consent of the State.
In response to the memorandum sent out by the Court, the attorneys for the counties have quoted the said Section 8036, Code of 1942, as a part of the Stansel Act, but they fail to point out any provision therein, or in any other Statute, which either expressly or by necessary implication authorizes a suit to compel an appraisal of, or the payment for, the pavement on a highway, under said section, or any paved highway as a whole under Section 8035.
Moreover, they cite no case in point to show such consent, but discuss the case of State Mineral Lease Commission v. Lawrence, supra, which was a suit to restrain *Page 672 members of the Lease Commission from invading the property rights and possession of the complainant, and wherein it was held that the Commission itself could not be sued for want of statutory authority. They cite also the case of United States v. Lee,106 U.S. 196, 199, 1 S.Ct. 240, 27 L.Ed. 171, and Land v. Dollar,330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209, in the first of which cases the military authorities had seized the Robert E. Lee Estate, known as Arlington, and converted the property into a military station and a national cemetery. There the suit was brought by the owners to eject the military officers, and the Court held that the suit was maintainable as against the officers to eject them. It was not a suit against the Government or any agency thereof which would have required an appropriation or other expenditure by the United States to give effect to the judgment rendered, and hence the decision is not at all persuasive on the point now before us.
The alleged applicability of these cases is based on the contention of the counties that they are seeking to require "the individual members of the State Highway Commission to appraise the highways . . ." But, I am of the opinion that this position is not well taken. The statute does not provide for the appraisal to be made by the individual members of the Commission. The provision is that the Highway Commission shall cause to beappraised. The effort here is to compel the Commission as a governmental agency of the State to act as an entity in the premises in bringing about the appraisal demanded.
The cases of State Mineral Lease Commission v. Lawrence, and Land v. Dollar, supra, are in my judgment, unquestionably against the right to maintain the instant suit where the ultimate object and purpose is to enforce the payment of an alleged debt from the State to the counties from an appropriation to be made for that purpose, and appraisement is sought in order to be used for *Page 673 influencing or coercing the Legislature into making such an appropriation.
In the case of Land v. Dollar, supra, [330 U.S. 731, 67 S.Ct. 1012] decided as recently as April 7, 1947, the Supreme Court of the United States said that "the rule is based on practical considerations reflected in the policy which forbids suits against the sovereign without its consent. The `essential nature and effect of the proceeding' may be such as to make plain that the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration. . . . If so, the suit is one against the sovereign. Mine Safety Appliances Company v. Forrestal, supra, 326 U.S. [371], at page 374, [694], 66 S.Ct. [219], at page 221, [90 L.Ed. 140, 144.]" Can it be doubted that the cost alone of the appraisal of all the pavement, rights of way, road beds of both dirt and gravel, bridges, ditches, drains, road signs, guard rails and culverts, as required by the majority decision formerly rendered herein, would expend itself upon the public treasury, and interfere with the primary functions of the Highway Commission for a period of several months, if not from one to two years?
In the last above mentioned case, the Court said [326 U.S. 374, 66 S.Ct. 221] that the suit was in effect "an indirect effort to collect a debt allegedly owed by the government in a proceeding to which the government has not consented. The underlying basis for the relief asked is the alleged unconstitutionality of the Renegotiation Act and the sole purpose of the proceeding is to fix the government's and not the Secretary's (Forrestal) liability. Thus, though appellant denies it, the conclusion is inescapable that the suit is essentially one designed to reach money which the government owns. Under these circumstances the government is an indispensable party, [State of] Minnesota v. United States, 305 U.S. 382, 386 [388], 59 S.Ct. 292, 295, 83 L.Ed. 235 . . ."
On the other hand, ample authority is cited by the Highway Commission to sustain the proposition that this *Page 674 Court is without jurisdiction to entertain the present suit. Among other cases, it relies upon the case of Woodruff v. State, hereinbefore first quoted from and discussed. Also, upon the general rule anounced in 49 Am. Jur. 304, Sec. 92, to the effect that "if the rights of the State would be directly and adversely affected by the judgment or the decree sought, the State is a necessary party-defendant, and if it cannot be made a party, that is, if it has not consented to be sued, the suit is not maintainable." One may not compel action by a governmental agency, where the ultimate effect would be to compel action by the State in its sovereign capacity.
It is true that there is a general statute providing for the State Highway Commission to sue and be sued, but in the case of State Highway Commission v. Gulley, 167 Miss. 631, 145 So. 351, 354, this Court said: "It is too well settled to require the citation of authority that the state highway commission, which is an agency of the state, is not subject to suit unless made so by statute, and that such statute, when one exists, is the measure of the power to sue such agency. A general statutory grant of authority to sue a governmental subdivision or agency does not create any liability, and suit may be maintained thereunder only for such liability as is authorized by statute, expressly or by necessary implication." The Stansel Act creates no enforceable liability or any cause of action in favor of the counties and other local units in event of a failure of the Commission to do what is therein provided for.
Being in derogation of sovereignty, the asserted right to sue under the terms of any statute must be strictly construed. Under the statutes here involved, if the local units are entitled to maintain a suit at all it would be for both an appraisal and payment, since the appraisal would be of no avail whatsoever unless the trial court should thereafter assess as a liability of the State the amounts due according thereto, and order the Commission to pay the same as a debt due by the State. It is evidently for *Page 675 this purpose and upon that theory that this cause has been reversed and remanded. Otherwise, the Highway Commission should not be ordered to assume the almost intolerable burden at public expense of trying to ascertain the original cost to the local units from such records as may be available in the various counties and municipalities of the links of pavement on the highways and of the rights of way and everything located thereon, including the gravel roads, road beds, bridges, culverts, etc., built prior to the passage of the Stansel Act in 1930, and most of which information one would not expect to find on the records of the present Highway Commission except as to local Federal Aid projects alone; and for the further reason that such an undertaking would impose an intolerable burden upon the Commission, a task impossible of performance, and an expense upon the State that is incapable of estimation.
This litigation was begun by the filing of nine mandamus suits on behalf of as many counties in the name of the State, but on relation of district attorneys, to compel the State's own Highway Commission to appraise and pay for certain links of paved highway, all at the expense of the State, and now the counties involved make bold to assert that the State is suing them. This contention is based upon the fact that the Highway Commission brought the present suit in Chancery to enjoin the further prosecution of these mandamus suits, and many others then threatened and impending, in order that they could be defended in one court at the capital city so as to avoid the necessity of the Commission having to defend such a multiplicity of suits involving the same questions. Nor was the present suit in Chancery brought by the Attorney General. It was brought by the State Highway Commission in its own name, and the Attorney General had no choice except to comply with his statutory duty of representing the Highway Commission, as one of the State's governmental agencies in a matter of state-wide interest. Therefore, the Attorney General has not *Page 676 impleaded the State into this litigation so as to waive its immunity, and the Highway Commission could not have done so even if it had so desired.
I don't understand that it is seriously contended, if at all, that the Highway Commission was not entitled to enjoin the prosecution of the multiplicity of mandamus suits. However, our former opinion herein, which is being adhered to by the majority on this Suggestion of Error, reverses the action of the chancellor and remands the cause for further proceeding, instead of affirming him at least to the extent of his enjoining the further prosecution of the mandamus suits already pending at law, together with those threatened and impending by other counties, and also to the extent that he held that all of these counties were entitled to an appraisal of the "pavement on" the highway. Unless the chancellor was correct in enjoining the further prosecution of the mandamus suits, then they could be proceeded with in view of the reversal of the decree wherein they were enjoined.
In 34 Am. Jur. 831, Section 37, it is stated: "It is a fundamental principle that courts will not employ their coercive process to compel the doing of a useless thing. Particularly is this true with respect to such a summary and expeditious process as mandamus. The writ is invariably withheld where it would be unavailing, nugatory or useless and its issuance an idle act." In support of this statement, decisions from the Supreme Court of the United States, and from approximately one-half of the state courts, are cited, including that of Wood v. State, 169 Miss. 790,142 So. 747.
In the same text, Section 35, at Page 831, it is said: "Under the guise of enforcing a public right, the writ will not issue if in fact it will operate to the detriment rather than to the benefit of the general public, or cause great disorder and confusion in the fiscal affairs and duties of the officers of a public or quasi public corporation." The chancellor was manifestly correct in enjoining these suits, and in any event his action in so doing *Page 677 should be affirmed. Otherwise he has no jurisdiction to proceed with the present suit upon the remand thereof, due to the pendency of the prior suits at law.
The same rule in reference to compelling the doing of a useless thing at needless public expense which prevails in regard to a proceeding by mandamus is equally applicable in the instant case where further prosecution of the mandamus suits have been enjoined by the trial court and they were there consolidated into one proceeding in equity to avoid their multiplicity, and where this Court is now asked to order an appraisal of the elements of a highway not provided for by the Legislature, thereby rendering it wholly improbable that an appropriation will ever be made to pay for as much as the "pavement on" the highways built at local expense prior to 1930 and the links of paved highway so built thereafter. In fact, the majority decision herein renders it unlikely that the Legislature will be able to make a satisfactory disposition of their legislative problem at all, even to the extent of paying the claims of the few counties that issued bonds for paved highways subsequent to, and under the inducements of, the Stansel Act, and which claims are meritorious to the extent of the paved highways built by the Highway Commission with the proceeds of such bonds issued pursuant to Section 8035, Code of 1942, here involved.
Fortunately, this Court is without power to require the Legislature to make the appropriation of many millions of dollars sought by the counties here involved, which would be needed to give effect to the majority decision herein; and with deference, I don't think that the Court should lend its coercive aid to their efforts to have adjudicated the amount of the State's alleged debt due them in each instance.
The present suit affords ample proof of the wisdom of Mr. Stansel, the other able members of his Legislative Highway Committee, and of the Legislature of 1930, in not incorporating in the Stansel Act an authority to sue the State in the event the Highway Commission should *Page 678 fail to cause the appraisements to be made and pay for the "pavement on" the links of highway built prior to 1930 and the "paved highways" built thereafter. In fact, it is inconceivable to me that the Legislature of 1930, at a time when the counties were being so liberally dealt with, as they still are, in the division of gasoline funds and the allotment of license tag fees, and long before a single mile of paved highway had been built at State expense, intended to make possible the maintenance of litigation so inimical to the public welfare. The lawmakers are presumed to have known at that time that an enormous bond issue would be required for the construction of the contemplated State paved highway system, and that the same would have to be paid from the State's portion of gasoline funds, and it is not reasonable to suppose that they intended to open a "Pandora's Box" of lawsuits by waiving the State's immunity from suit under the Stansel Act.
And, if a district attorney, acting on behalf of a county as the real party in interest, though in the State's own name, or indeed if the Highway Commission itself, or any other agency of the State, can, by defending a multiplicity of suits, be held to have waived the State's immunity from suit, where an appropriation by the Legislature would be necessary to carry out the object and purpose of the litigation, then the settled law of this State to the effect that the consent of the sovereign to be sued must be expressly granted by statute is of no further avail. Moreover, I think it is no less the duty of the State Supreme Court than of the Highway Commission or the Attorney General to protect the immunity of the State from unauthorized litigation at public expense, and hence we have the well-established doctrine that the Court will of it's own motion raise the question of one's right to sue the State in the absence of an express statutory consent in that behalf.
Then too, the Highway Commission, through the Attorney General who was required by law to represent the *Page 679 Commission, specifically alleged in its bill of complaint in the present suit that "Complainant avers that the question of the validity of its obligation to pay the defendants after appraisal made of any roads required to be appraised is not admitted by the filing of this suit and it avers that the State's credit should not be wrongfully pledged to defendants without express legislative authority, which complainant denies has been granted."
But, assuming for the sake of argument, and for that purpose alone, that the courts, instead of the Legislature, have the right to inform the Highway Commission as to what they should appraise and pay for under the Stansel Act as "pavement on" a highway built at local expense prior to 1930 and "paved highways" so built thereafter, I think, with the utmost deference to the majority view, that it has been conclusively demonstrated in the briefs submitted by the Highway Commission in behalf of the Suggestion of Error now under consideration that a far too liberal construction has been given in the former opinion of the Court herein to the term "pavement on" the highways when those words were construed in this case to mean and include the entire costs of rights of way in some instances, and the subgrade in other instances whether the highway was ever paved at local expense or not, and the grading of the road beds on which pavement was laid at local expense, gravel and dirt road beds, which were later paved by the Highway Department, and the bridges, culverts, ditches, drains, signboards and guard rails on such roads.
In the briefs above referred to, the report of the Stansel Committee to the Legislature has been extensively quoted from and shows that the words "pavement on" the highway in the Stansel Act, which are substituted for the words "high type surface" mentioned in the report, were used advisedly and meant only what those words ordinarily mean. This report discloses that the Stansel Act in the main is a paraphrased draft thereof, except that the observations made in the report to the Legislature *Page 680 places the meaning and intention of that body beyond question, and they show that Mr. Stansel, who was both a statesman and a civil engineer, as well as his able fellow-committeemen, knew what was intended to be recommended to the Legislature as to what should be appraised and paid for.
That report is somewhat lengthy, but it is couched in such plain language as to convey no hidden meaning. It clearly discloses that the majority opinion formerly rendered herein is at variance with the intention of these men who prepared, introduced, and conducted the handling of the Stansel Act in the Legislature as to what should be appraised and paid for on the highways built at local expense. It discloses that they took cognizance of the fact that the State was dealing generously with the counties in the division of gasoline taxes, and the allocation of license tag fees to them. The members of that recess Committee recognized in their report, which formed the basis of the adoption of the Stansel Act, that it would be necessary to continue the State's liberality in that behalf to the counties because of the fact that the counties had issued bonds to meet Federal aid, both for highways which had been graded, and those which had been graded and graveled, and in some instances paved, at local expense, before the passage of the said Act, and that it would be "an economic necessity that auto taxes be left with the counties to offset this tax burden." This has been accordingly done and the twenty year bonds issued prior to 1930 have of course been now fully retired from the counties' portion of such funds in many instances and almost fully paid in the remaining instances. In other words, the Legislature has not been derelict in its duty in not having made the appropriation now sought, and the counties have apparently been content until recently with the generous treatment accorded them, and with the Legislature's non-action in the premises.
The report estimated that the cost of high type pavement would be $22,000 per mile for the (concrete or other *Page 681 hard surface) slab of high type pavement, and that there would be 2,300 miles thereof in the program at a cost of $50,600,000, and that there would be 2,850 miles of intermediate type paving estimated to cost $6,000 per mile to take care of generous gravel replacements and provide full width, or a total of $17,100,000. The report further estimated that the grading would cost $10,000 per mile for 2,060 miles of graded highway, or the sum of $20,600,000. The report took notice of the fact that possibly half of the roads which would receive the high type pavement had already been constructed by the counties up to the required standards, and that this 2,060 miles of grading would therefore be adequate, the total estimate of the cost of contemplated being $88,304,504 for construction, $23,175,000 for maintenance, and $2,140,000 for administration costs, including estimated Federal aid on the then basis, or a total cost of the program in the sum of $113,619,405.
Had the legislature contemplated that the State would reimburse the counties for the expense of the grading and constructing of the graveled highways, and the dirt highways, ready for gravel, which were to be incorporated into the State system and thereafter paved, it would have been necessary to include in the contemplated expenditures an additional item of an amount equal to $10,000 per mile for the grading of the 3,090 miles of the total of 5,150 miles of contemplated paved highways, that is to say an additional item of $30,900,000, to say nothing of the cost of rights of way. The Legislature is presumed to have known that a contemplated $60,000,000 bond issue to be paid in semi-annual installments from the State's portion of current gasoline funds, together with the remainder thereof, would not have afforded the Highway Commission the funds with which to pay this $30,900,000 item, plue the cost of many rights of way furnished by the counties, and which items had not been included in the estimate of $113,619,405. *Page 682
Moreover, the report expressly states that "the Committee contemplates that rights of way now owned by the counties on roads take over by the State will be transferred to the State without cost to it." And, in my opinion, the report otherwise shows that the majority view is erroneous in assuming that the dominant purpose of the Stansel Act was that the entire cost of these primary highways was to be paid by the State. Such a purpose would have been to unjustly discriminate against the counties which were not on the primary system and had likewise built gravel roads, bridges, etc., at local expense.
Then too, in providing for an appraisal of the "pavement on" the highways, the Stansel Act itself declares that there should be taken into consideration the wear, depreciation and deterioration thereof. The Legislators are presumed to have known that rights of way, road beds on which pavement had been laid, unpaved road beds properly maintained, and galvanized or concrete culverts underneath the highways, etc., did not wear or deteriorate, and it is therefore evident that this provision was intended to apply only to the pavement on the highways, which had worn and deteriorated and were in need of patching and rebuilding at different places.
It is true that the words "to pave," where a governmental agency is authorized to pave a highway, implies that there shall be done whatever is necessary to prepare the road for pavement, but there is a vast difference between the meaning of these words and the meaning of the Legislature when it was determining what the State could financially afford to have appraised and paid for in regard to the links of paved highway already constructed.
Moreover, the majority view of the Court, as set forth in the former opinion herein, is that the Court, in construing a statute, should interpret it, insofar as practicable, so as to treat every county alike and to avoid discrimination as between one and another. This principle is necessarily departed from if those counties through which a primary and continuous paved highway was *Page 683 finally built, are reimbursed for the cost to them of the gravel and dirt roads, etc, which were utilized for that purpose, when at least twice as much mileage of gravel roads was likewise constructed by other counties at local expense which have never been taken over and paved as a part of such primary system, and which are not therefore to participate in the millions of dollars involved in this litigation. If equality is to be the theme, then reimbursement only to the extent incurred by the extra cost incurred by the pavement on the primary system should be made, leaving the counties which were favored by having primary highways constructed through them to pay for their own gravel roads, rights of way, bridges, culverts, drains, etc., in the same manner as the other counties must pay for theirs under the decision herein. I do not think that the Legislature intended to thus discriminate against the less fortunate counties.
It required, of course, larger bond issues to grade, graveland pave a link of highway than it did to merely grade and gravel those in other counties, and hence reimbursement for only the "pavement on" the highway would mean reimbursement to the county in which such a link was constructed to the extent of equalizing the burden among all of the counties of the State which issued bonds for gravel roads.
At any rate, I think that the Stansel Act plainly provides for the appraisal and payment of only the "pavement on" the highway as to links of pavement constructed prior to 1930 and for the "paved highways" constructed thereafter. But, if the language is conceived to be of doubtful meaning, then the report of the Stansel Committee clearly discloses that Mr. Stansel and his fellow-committeemen were recommending that the "high type surface" only should be appraised and paid for, and in lieu of these words there was substituted in the language of the final draft of the Act by the members of this Committee the words "pavement on" the highway, meaning the same thing. It seems to me that these words were *Page 684 used for the very purpose of more clearly excluding rights of way, road beds, gravel and dirt surface highways, etc., instead of for the purpose of including them.
But, under the majority view, we are not entitled to consider this report in determining whether or not the construction of the statute as to the intention of the Legislature was correct in the former opinion herein reported in 32 So.2d 555. Yet, we find that thirty-one of the lawyers who are listed on page 557 of the reported case as representing the counties make the following statement in their joint brief, as to whether or not the Court may take judicial notice of the Stansel Committee report, a copy of which is now on file among the public records of the State Highway Department, the authenticity of which copy is unchallenged. These attorneys say: "We are of the opinion that Court may take judicial notice of reports of committees of the Legislature. See Witherspoon v. State ex. rel. West, 138 Miss. 310,103 So. 134. There is little law on the subject. The Supreme Court of the U.S. has definitely decided that in constructing a statute the Court may consult the reports of committees having it in charge. McLean v. United States, 226 U.S. 374 [33 S.Ct. 122], 57 L.Ed. 260; Jett et al. v. Montague Mfg. Company, [61] App. D.C. [277], 61 F.2d 918; Humphrey's Executor v. United States,295 U.S. 602, [55 S.Ct. 869], 79 L.Ed. 1611."
They then proceed to cite other cases, including a number of decisions of our own Court, as supporting this view. Then the nine other lawyers, representing six of the counties, make the following concession, to-wit: "We will concede that this Court, in order to ascertain legislative intention is enacting a statute, the language of which is of doubtful or ambiguous import, may resort to committee reports and to the journals of the Legislature, showing the history in the Legislature of the Act in question while it was in the process of enactment. In fact, we have no objection to the Court resorting to any authentic source of information about the matter, and we waive *Page 685 any technical objections we might have the right to advance thereto."
Likewise, the Court is entitled to consult dictionaries for the meaning of words in a statute, geographies for the location of places in dispute, and encyclopedias for general information on a subject involved in a suit. By the same token, if the Judges find from a reading of the Book of Proverbs that their reasoning in an opinion is inaccurate or unsound, then they have the right to change their minds on Suggestion of Error.
To consider this committee report, as the most pertinent source of information available to ascertain what the Legislature intended when it said appraise the pavement on the highway, instead of saying the pavement and the remainder of the highway, is not to admit new evidence on Suggestion of Error. Since the majority opinion admittedly went beyond the language of the statute, the committee report merely reenforces the argument of the Highway Commission, and is a part thereof, to show that the Court had given the statute a far too liberal construction.
If the extensive quotations from the Stansel Committee report, which are set forth in the briefs of the Highway Commission on this Suggestion of Error, do not refute the correctness of the construction of the Stansel Act, as given in the former majority opinion, it could do no harm to the majority view for us to examine and consider such report. On the other hand, if it does show, as I think it unquestionably does, that we were in error in construing the statute, when we held that the requirement that the Highway Commission should cause to be appraised and pay for the "pavement on the highway" to mean not only the pavement but the right of way and everything else thereon, as hereinbefore mentioned, then we should hasten to correct our mistake, especially in a case where an erroneous construction is of such far-reaching consequences. *Page 686
Moreover, the Highway Commissioners are men who are constantly in contact with road-builders in the examination and awarding of proposed contracts, etc., and are thoroughly familiar with what the term "pavement on" a highway means in road construction work. At any rate, if the Legislature had wanted the Commission to appraise and pay for the entire highways instead of the "pavement on the highway", it would be the province of the Legislature to have so informed the Commission by including these other elements in the provision of the Stansel Act in question. It has not seen fit for more than eighteen years to amend the statute so as to include, in addition to the pavement on the highways, the cost of the rights of way, gravel and dirt roads, etc., but has evidently assumed that the Highway Commissioners would be able to determine what was intended by pavement on the highway, if and when the Legislature should provide the necessary funds for the purpose of appraising and paying for the same; and, although there were members of the 1948 session of the Legislature who were likewise members of the session of 1930, and who were presumed to know, and did know, what was meant by the words "pavement on said highway" in the enactment of the Stansel Act, they did not propose any amendment thereto to conform to the construction of those words in the opinion rendered by the Court herein on November 10, 1947, although the Stansel Act was dealt with and amended otherwise in 1948 by repealing many sections thereof.
The Legislature has, of course, been aware of the fact that no appraisements have been made pursuant to the Stansel Act of 1930, and has acquiesced in the failure of the Highway Commission to make them, and with full knowledge that the Highway Commission stood ready and willing to comply with the wishes of the Legislature at any time it should provide funds for the purpose of appraising and paying for the pavement on the highway. This litigation, however, tends to create the impression with the public that the Highway Commission *Page 687 has willfully failed and refused to appraise and pay for such links of highway built prior to 1930, whereas the truth is that the gasoline funds have been irrevocably pledged for the payment of the $60,000,000 bond issue, several millions of which have had to be refunded instead of being paid for lack of sufficient funds for that purpose and for carrying on highway construction, or have been otherwise earmarked for the purpose of matching Federal Aid Funds for new construction, showing that the Commissioners have not been derelict in their duty in not having appraised and paid for such highways.
Finally, the majority view in favor of adhering to the former opinion is predicated on the further ground that since the Legislature of 1948 did not repeal the two sections of the Stansel Act here under consideration, the lawmakers are presumed to have adopted and approved the former opinion herein. It is true that there is a well-established rule to the effect that when the Legislature reenacts a statute, it is presumed to have adopted the construction previously given to it by the Courts. But that rule is not applicable here, first, for the reason that the Legislature did not reenact the statutes but merely permitted them to remain in the books, after they had been in non-use for nearly eighteen years, and had in fact become obsolete until they were sought to be brought into play by the recent suits. And second, the rule contended for does not apply to a decision that has not become final and is pending on Suggestion of Error.
The Legislature was presumed to know that the Court could of its own motion raise the question of jurisdiction to sue the State, and, as is stated in the brief on behalf of several of the counties in respect to the failure of the Legislature of 1948 to take action in the premises, it may have been because "at that time the Suggestion of Error was pending and the Legislature doubtless considered that in passing upon the Suggestion of Error the Court might make some changes in its opinion, which the Court sometimes does." None of the lawyers representing the *Page 688 counties are making the contention that the Suggestion of Error should be overruled on the ground that the questions presented herein have, because of a failure to repeal these code sections in 1948, become "moot"; and, with deference, I do not think that we should permit this highly technical theory to preclude us from correcting the too liberal construction given the statute in the former opinion herein, and at least without asking for briefs on this particular point. There is too much at stake in this litigation for this decision to become final without the State being given an opportunity to fully brief the question of whether or not a three to two decision of this Court, which was pending on Suggestion of Error, has been approved and adopted by the Legislature as a proper construction of a statute (where the other member of the Court had resumed his duties and was available during the Legislative session to participate in the consideration of a Suggestion of Error), by the mere failure of the Legislature to repeal the statute, and where there has been no affirmative action to reenact it, that is to say, where the Legislature merely pursued the same course which it had continued to pursue for eighteen years.
The Highway Commission has argued in its brief that the failure of the Legislature of 1948 to take action amounted to a repeal of the statute by implication. However, I do not think that there was an implied repeal. But the question raised by some of those concurring in the majority view of the Court that the case has become moot by failure of the Legislature to repeal the statute involved has not been contended for by any of the more than forty lawyers in the case representing the counties, nor has this precise question been briefed by anyone.
I am confident that no decision of this Court can be found to support the view that the failure of the Legislature to take anyaction at all, where there has been no reenactment of a statute, during the pendency of a Suggestion of Error has the effect of approving an original *Page 689 opinion; and this is especially true where the opinion has been so recently rendered as not to permit the Legislature time to form any intelligent conception of how far-reaching it would be in its consequences.
The rejection by the Court of any consideration of the Stansel Committee Report to the Legislature, throwing light on the meaning of the Stansel Act, in the face of the concession by the attorneys for all of the interested parties that we have a right to consider it, and the overruling of the Suggestion of Error on the further, and I think untenable, ground that the question of whether the former opinion correctly interprets the statute under consideration has become a moot question, will inevitably result in less weight being given to the decision by the Legislature, when considering whether or not it will provide the millions of dollars necessary to make it effective, than a decision of the Court would otherwise be entitled to receive.
If the Stansel Committee Report had been before us on the original consideration of this appeal, without any valid objection by the attorneys to its competency, which they now admit, I would think it unjust to the majority of the Judges to assume that they would have nevertheless construed the words "pavement on the highway" to mean what they were construed to mean in the former opinion herein.
It was said on Suggestion of Error in the case of State Highway Commission v. McGowan, supra, [198 Miss. 853, 24 So.2d 331] wherein both an appraisal and payment was sought for only the pavement on the highways, that "we have allowed the mandamus to issue because the Commission has on hand the money for the appraisement (where only one county was involved) and which is at its command for that purpose; the order does not include payment of the appraised amount for the reason that the Commission does not have on hand or within prospect without legislative aid the sums needed to pay *Page 690 the appraisement along with similar demands of other counties."
The Court recognized in that case that we had no authority to order payment for the pavement on the highways in Hinds County, for the reason that the Commission itself did not have the money to pay for the same, along with similar demands of other counties. And we of course have no authority to require an appropriation for that purpose. Here, the counties want the trial court, however, to adjudge the liability against the State for the amount of the appraised value in this same litigation, when the case is further heard on remand, after the appraisements shall have been made. And since the creation and distribution of the state highway fund, even for appraisement purposes, is a strict prerogative of the Legislature, we should not even order an appraisement, at such great expense to the State as would be entailed, where the same would avail nothing to the counties without an appropriation from the Legislature to pay the amount of such appraisement.
An intolerable burden would be cast upon the Highway Commission if they should undertake to appraise at this late day the gravel and dirt roads, rights of way, etc., on which the State later laid a pavement, and the links of pavement laid at local expense, including the remainder of the highway, as of the time when the connection was made with them as parts of a continuous paved highway. In fact, the requirement of this decision is now impossible of performance, due to the fact that some of the links of pavement, as along the Coast, are now imbedded in four lane highways and therefore wholly concealed; and it is inconceivable as to how a gravel or dirt road which is now covered by a concrete slab can be appraised either as of the time the connection was made and it became a part of a continuous paved highway or as of the time of the attempted appraisal, taking into consideration the wear, depreciation and deterioration thereof prior thereto. *Page 691
The Legislature, if unhampered by this decision, and the Legislature alone, assuming a patriotic attitude toward the public welfare of the whole State, can work out a just solution and adjustment of this problem, taking into consideration to what extent it can afford to further impair the security of the holders of the unpaid portion of the $60,000,000 bonds (several million of which have not been paid, but refunded, as aforesaid); how much the State can afford to lose in Federal aid funds on account of part of the reimbursement to the counties; the extent to which it can afford to delay further pavement construction in the counties that have only one paved road each; then as to how long it should delay its farm-to-market road program while making a liberal division of gasoline funds with all the counties, including those now suing the State; whether or not it should raise the gasoline tax rate on all the people to fully satisfy the demands of the counties that instituted these suits, many of which have several paved roads built wholly at State expense far in excess of the amounts that will ever be spent in the less favored counties; and finally what consideration should be given by it to the "County Highway Aid Act," Chapter 187, Laws of 1946, dealing with the distribution of Federal aid and State appropriated funds as between counties according to area, population, etc.
Moreover, the Legislature is vested with authority to direct the Highway Commission to proceed with an appraisal of that which it is willing to appropriate funds to pay, the appraisal to be binding upon the counties, whereas in the courts the appraisals ordered would be subject to objections of each local unit when reported for approval, and this litigation would thereby be rendered interminable, with all fees and costs to be paid by funds raised by taxation.
In conclusion, the only justification that the writer offers for this lengthy dissent is a firm conviction of its correctness; and, although, as a member of the Legislature, I would vote for substantial relief to counties that *Page 692 built, or furnished funds with which to build, paved highways after the passage of the Stansel Act in 1930, and to pay, at a fixed amount per mile according to the type of pavement and whether now embedded and concealed underneath other such surface or not, for the "pavement on" the highways built prior thereto at local expense, and to such an extent as would not work inequality among the counties interested or unjustly discriminate against all other counties, I am unable to concur in the view that it is a matter of any concern to the Court, or that we have correctly interpreted the statute involved.