DISSENTING OPINION. The evidence discloses that the paving of the section of the two highways here involved has been connected with the other paying of the highway and, I will assume, have become parts of continuous paved highways, but this is not sufficient under Section 8036, Code 1942, to warrant the issuance of this writ of mandamus. That writ can properly issue when, but not until, the State Highway Commission has decided that these two sections of the highways shall ultimately be utilized as permanent parts of the highways. When the two facts hereinabove set out concurred it became the duty of the Highway Commission to determine whether these two sections of the highways should be utilized as a permanent part of the highways or should be relocated, power to do which is conferred by Section 8023, Code 1942. Trahan et al. v. State Highway Comm. et al., 169 Miss. 732, 151 So. 178. This the Highway Commission did and determined to relocate that section of Highway 51 and a part of that section of Highway 80. With this decision or judgment of the Highway Commission the courts are without the right to interfere by writ of mandamus, if at all, for the power and duty to make it is conferred not on the courts, but on the Highway Commission. State ex rel. v. Henry, *Page 876 87 Miss. 125, 40 So. 152, 5 L.R.A. (N.S.) 340; Thomas v. Price,171 Miss. 450, 158 So. 206, and authorities there cited; City of Clarksdale v. Harris, 188 Miss. 86, 196 So. 647, and additional authorities there cited.
The Highway Commission has not yet relocated and reconstructed these sections of the two highways, the reasons given by it therefor being that it has not been supplied with funds by the legislature which it could utilize for that purpose without detriment to the public interest and its highway construction program, and, in addition, that for the duration of World War II, for reasons known to all, it was compelled to practically cease and had not been able to resume highway construction. This decision, it is said in effect, is equivalent to a decision, insofar as the rights of the appellee are concerned, that these sections of the two highways shall remain as permanent parts thereof. The reasons which influenced the Highway Commission are certainly not frivolous, and if their soundness is doubted, which I do not, this Court is without the right to disregard the judgment of the Commission and substitute its own therefor. Shotwell v. Covington, 69 Miss. 735, 12 So. 260; 34 Am. Jur. "Mandamus," Sec. 73.
The rule which should govern here and which this Court has heretofore observed is thus stated in Section 24 (3rd Ed.), of High's Extraordinary Legal Remedies: "But the most important principle to be observed in the exercise of the jurisdiction by mandamus, and one which lies at the very foundation of the entire system of rules and principles regulating the use of this extraordinary remedy, is that which fixes the distinction between duties of a peremptory or mandatory nature, and those which are discretionary in their character, involving the exercise of some degree of judgment on the part of the officer or body against whom the mandamus is sought. This distinction may be said to be the key to the extended system of rules and precedents forming the law of mandamus, and few cases of applications for this extraordinary *Page 877 remedy occur which are not subjected to the test of this rule. Stated in general terms, the principle is that mandamus will lie to compel the performance of duties purely ministerial in their nature, and so clear and specific that no element of discretion is left in their performance, but that as to all acts and duties necessarily calling for the exercise of judgment and discretion on the part of the officer or body at whose hands their performance is required, mandamus will not lie. The application of the rule is universal and its illustrations are as multiform as are applications for the aid of this extraordinary remedy." See also Section 42.
"The paramount question in this case is a factual one" (so stated in the controlling opinion), and the question of fact to be determined is whether the conditions have been met, which, under Section 8036, Code 1942, entitle the appellee to payment for the paving of the two sections of these highways here in question. The circuit court is not equipped for the investigation and decision of this disputed question of fact, either by the trial judge without a jury or with a jury, to which (the jury), in the absence of an agreement to the contrary, questions of fact must be submitted. Section 1119, Code 1942. It is inconceivable to me that the legislature would permit this complicated question of fact, the correct decision of which is of so much importance to the public, to be withdrawn from the officers designated by it to make the decision and be submitted to the judge of a circuit court either with or without a jury, and this cannot be rightfully done in the absence of a statute expressly so permitting.
Moreover, this record does not disclose that the Highway Commission has unduly delayed relocating these sections of the highways, for it does not appear therefrom when they became parts of continuous paved highways. All that is claimed in the appellee's brief relative thereto is that they were such when this action was brought.
As to the section of Highway 80 the Highway Commission's only claim is that it intends to relocate something *Page 878 over seven miles thereof. Consequently, unless barred therefrom for another reason, the appellee would have been entitled to a writ directing the appraisement of the remainder of the highway, had the court below been furnished with a description of this seven or more miles to be relocated.
The judgment of the court below should be reversed and the petition dismissed.
McGehee, J., concurs in this dissenting opinion.