ON SUGGESTION OF ERROR. The Highway Commission renews its argument that the affirmed judgment of the trial court is an intrusion upon the discretion vested in the Commission. What the Commission seems to be urging, however, is that the discretion which it now desires to exercise shall be allowed to become a retroactive discretion, so as to undo something already done and done in pursuance of the discretion. So far as concerns a final location, within the meaning of the statute under consideration, the roads *Page 890 have already been located, and have been so for years, the result as a final fact being one upon the ground to be seen by a thousand witnesses every hour of the day. The court is dealing with something already done, while the Commission continues to talk of something wished or proposed to be done.
What was done in this case is summarized in our former opinion as regards the facts and the controlling facts which constitute a final location within the meaning of the statute under consideration, and we quote it here to point up and emphasize what, and what only, we have decided in this case so far as its central issue is concerned [23 So.2d 893, 899]: "When the continuous state highway was being completed, and in so doing, connection was made with the north and south links in Hinds County, that link was a paved highway, paved with the same character of durable material that the Highway Commission was generally using in its permanent work, and of a width sufficient to furnish safe lanes for passage in each direction. It was laid out upon reasonably straight lines, upon suitable and safe grades and grading, and free from dangerous crossings, and was sufficient to carry the people of the state with convenience to or through principal points of business or social interests. We think practical men of sound judgment would say that at the time of the connection that the link as it existed was suitable to be and become a link in a continuous state highway for a considerable time to come." This is a far different factual situation from that dealt with in Wilkinson County v. State Highway Commission, 191 Miss. 750, 4 So.2d 298, which the Commission now again urges in the argument. In that case there had been neither a final location nor facts which would at all befit a final location, such as we have above outlined.
It must be, as we think, that the Commission in its insistent attitude in this case is proceeding under the apprehension that by the holding of the trial court and our *Page 891 affirmance, the Commission will be precluded from making any other or any new location, when once there has been a final location as meant under the statute here under consideration. We went to the trouble of elaboration in our original opinion in this case to indicate that nothing of the latter import was intended. We have had no such purpose as to intimate that the Commission may not now, in the exercise of the discretion conferred upon it, lay out new or supplemental routes, as it is said the Commission now contemplates in the situation here under consideration, in which connection we call attention to the further fact that we have never yet held, as seems to be assumed, that when there has been a final location, as has been in this case, the Commission if and when it makes a new or supplemental location may thereupon cast the present final location back upon the county, as was held in the Trahan (Trahan v. State Highway Commission, 169 Miss. 732, 151 So. 178) and Wilkinson County cases, which did not involve previous final locations at all. The two questions put in this paragraph are not now before us, have not heretofore been before us, and we make this response to the suggestion of error that the matter may be so understood.
The Commission again argues that it has no money on hand to pay for the appraisement, but because this is so far afield from the undisputed facts shown by its own audits in this record, the argument is finally that its only available funds are from the gasoline taxes and that these can be expended only as proved by Section 10048, Code 1942, and that appraisements are not within the language of that section. The section does provide that the portion of that fund passed to the credit of the Highway Commission may be expended for construction and maintenance, and we held in State ex rel. Cowan v. State Highway Commission,195 Miss. 657, 682, 13 So.2d 614, that these terms include reimbursement under Section 5004, Code 1930, and as appraisement is an essential incident to reimbursement, appraisement is included. *Page 892 We have allowed the mandamus to issue because the Commission has on hand the money for the appraisement 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 the appraisement along with similar demands of other counties. The money is due the counties for roads which have been finally located, as that term is meant in the act in question, but whether the debt as ascertained by the appraisement will be honored as are other debts, is one which will lie at the door of the legislature, and we are concerned only that it shall not be at that of the courts.
Suggestion of error overruled.
McGehee, J., and Smith, C.J., adhere to the views expressed in the opinions hereinbefore rendered by them and think that this suggestion of error should be sustained.