DISSENTING OPINION. In addition to the views set forth in the dissenting opinion of the CHIEF JUSTICE I think that the judgment here appealed from should be reversed for the further reason that the extraordinary writ of mandamus should never be issued to require the doing of a useless thing at public expense.
While the judgment of the trial court requires only that the Highway Commission shall appraise the value of the links of paved highway in Hinds County involved herein and which are alleged to have been constructed at a local expense of $451,890.80, the court was also asked in the petition for the writ that the Commission be required to pay for the said links of highway, at their appraised value as of the date of the filing of the suit, and it is the obvious purpose of the county in seeking to have this judgment affirmed to then proceed to ask the court to compel the Commission to pay for the highways in question. Otherwise the appraisal could serve no useful purpose, and, therefore, the court should not require an appraisal to be made at public expense in obedience to a writ of mandamus.
Moreover, the court as a basis for requiring the said links of highway to be appraised should not anticipate *Page 879 that the legislature might perchance at some future time make available the necessary funds with which the appraised value thereof could be paid. If, on the other hand, the Highway Commission has the funds already available and the law specially enjoins upon the Commission the duty to do that which is here sought to be compelled — a necessary requisite to the issuance of a writ of mandamus in any case — and without any precedent action being hereafter taken by the legislature in the premises, then the trial court should have rendered a judgment requiring both an appraisal of the highways and payment of the appraised value thereof, as prayed for by the county, if the facts were deemed by the court to be such as to warrant the issuance of the writ of mandamus for any purpose.
The judgment appealed from herein is not as harmless as it may seem. It can be invoked as a precedent to require the Highway Commission to make appraisals in all other counties having links of such paved highway constructed in whole or in part at local expense, and upon a petition filed by the City of Jackson in that behalf an appraisement of the value of North State Street and South State Street, which together form a link of Highway 51 as presently located from the northern corporate limits of the city to the underpass on Highway 80 in South Jackson, may be compelled as well as the granting of similar relief to every other municipality in the state, the streets of which now form a link in a continuous paved state highway, since the statute in question is not limited to counties as the only local units allegedly entitled to such relief.
Since the statute contemplates both an appraisal of and payment for such links of pavement, for the reason that the appraisal could serve no useful purpose unless payment is to be made, it is impossible to forecast either the enormous cost of the appraisals alone throughout the state and the extent to which the undertaking will disrupt the work of highway construction and maintenance *Page 880 or to how great an extent payment of such appraised values will retard the proposed farm-to-market road building program, whether the Commission shall use its own official personnel and engineers or employ other persons to do the appraising and whether it shall pay for these links of highway out of gasoline funds already designated for intended construction and maintenance or pledged as the sole security for the payment of outstanding bonds heretofore issued for highway construction.
Therefore, because of the importance of the case now before us, as well as from a conviction that the legislature has for many years treated the particular section of the Act of 1930 here involved as a wholly obsolete or dead-letter law in that it has failed to specifically designate any funds for use by the Highway Commission in carrying out its provisions, and has, on the other hand, continually undertaken to ear-mark the funds for other and different purposes when making them available to the Commission, I feel impelled to set forth my reasons for not concurring in the controlling opinion of the Court in this case.
It was no doubt the intention of the legislature of 1930, when it enacted Chapter 47 of the Laws of that session (now Section 5004, Code of 1930, Section 8036, Code of 1942), that whenever in the course of the highway construction program the time should be reached that a link of paved highway constructed at local expense would have been regularly constructed by the Highway Commission and "connection is made with such paved highway and same becomes a part of a continuous paved state highway" and to be "utilized as a part of the final location of the continuous completed paved state highway so connected," the said commission should cause to be appraised the pavement on such highway which had been constructed in whole or in part at local expense, and should pay to the local unit the proportionate part contributed by it for the cost of the same according to its "then existing appraised value," taking into consideration *Page 881 "the original cost of such pavement and the wear, depreciation and deterioration of the same," but this intention was manifestly based upon an anticipated issuance of highway construction bonds for such purpose as a part of the contemplated construction program, and not with any thought that said legislature could bind the succeeding state administrations to use the gasoline taxes or license tax revenues at this late day either for defraying the cost of appraisals not yet made or for paying the value of such links of highway as of the time of the filing of suits by the local units in that behalf — an authorization not even attempted to be made in the statute as enacted.
Moreover, no succeeding legislature has either directly or indirectly manifested any intention whatever that such links of highway should be appraised or paid for out of current revenues. In fact they have negatived such intention by pledging a portion of the gasoline funds collected by the state to the payment of a $60,000,000 highway construction bond issue, the entire proceeds of which have long since been entirely expended, and by allocating the remainder of such gasoline funds to the counties, and which funds so allocated to the counties have been and are being used in paying off bonds issued by the local units for constructing the links of highway with which the "connection" was made as parts of continuous state paved highways, and for other purposes.
Nor can it be said with any degree of assurance that any legislature subsequent to 1930 has felt obligated to carry out the provisions of this statute by setting aside any part of the proceeds of the road construction bonds for that purpose. It was not until 1936 that any funds were made available to the Highway Commission for the construction of highways either from bonds issues or otherwise, assuming that reimbursement to the local units for paved highways already built is to be deemed "construction" within the meaning of Chapter 182, Laws of 1936, authorizing the issuance of $23,000,000 of highway *Page 882 construction bonds, or Chapter 130, Laws of 1938, authorizing the issuance of $60,000.000 of such bonds out of the proceeds of which the first issue was to be taken up and paid, and which said bond issues were authorized in order to "match" federal aid funds designed to provide employment in future construction work.
At any rate, the proceeds of said bond issues have been expended and the revenues to be derived from gasoline taxes have been irrevocably pledged as the sole security for the payment of the said $60,000,000 bond issue as hereinbefore stated. The Court in a three to one decision in the case of Bank of Morton v. State Bond Commission (Miss.), 199 So. 507, upheld the constitutionality of Chapter 109, Laws of 1940, authorizing the issuance of refunding bonds with which to take care of the maturing semi-annual payments due on the said $60,000,000 bond issue, and so as to enable the Highway Commission to use the current gasoline taxes for future construction and maintenance, although said funds were pledged as security to the bond holders as aforesaid. This was held not to be in violation of Section 16 of the State Constitution against the impairment of the obligation of a contract, and evidently upon the theory that there would remain sufficient current gasoline funds with which to take care of the future semi-annual installments on the original bond issue when the same should become due. Nevertheless, it has become necessary that other refunding bonds should be issued pursuant to similar acts of the legislature subsequently passed for that purpose. It is now pertinent to inquire whether this security in favor of the original bondholders is to be further impaired by compelling the Highway Commission to appraise and pay for all links of highway constructed at local expense and to the probable complete depletion of such current revenues. It will necessarily follow as an incident to the affirmance of the judgment here appealed from that every other county and the municipalities similarly *Page 883 situated would be entitled to demand such an appraisal and payment.
It is to be conceded that the legislature has been aware of the fact at all times, through a period of many years, that the Highway Commission has not undertaken to either appraise or pay for a single mile of the paved highways which were built at local expense; that in order for the Commission to carry on the work of needed construction and maintenance the legislature has by language as clear and unequivocal as that contained in the statute here invoked, designated and required all funds which have been made available to the Highway Commission to be used for other specially designated purposes than sought to be compelled by this proceeding.
The statute in question clearly prescribed the time at which the legislature of 1930 intended that such an appraisal and payment should be made in a proper case. The time therefor is fixed by the express language of the Act as being when the time shall be reached that a link of road built at local expense would have been regularly constructed as a part of the paved highway program and "connection is made" with such highway as a part of a continuous paved stated highway on final location, and it is also provided therein that the same is to be paid for according to its "then appraised value," taking into consideration its wear, depreciation and deterioration. If such time has been reached at all in the instant case, as the county contends it has, it was reached many years ago, and, in my opinion, it was never intended that any local unit could wait to avail itself of the remedy of mandamus until long after the proceeds of the highway construction bonds have been expended and until it is too late as a practicable proposition to fairly administer the provisions of this statute as to all the local units involved even if a part of the proceeds of said construction bonds had once been available for such purpose upon the theory that reimbursement to the local units was part of the construction contemplated. *Page 884
For instance, a portion of Highway 51 as now located through Pike County from Summit to Magnolia is built and over a vitrified brick pavement which was constructed at local expense and is now concealed. Nor would it be at all feasible to appraise much of the concrete pavement in Harrison County along the coast over which a much wider road bed has now been constructed, or those links of such highways in many other localities in various sections of the state. The legislature doubtless had this in mind when the statute was enacted in 1930, and the time was therein fixed for making the appraisement, and the lawmakers are presumed to have known that this Section of the Act of 1930 could not be fairly administered unless the appraisals were made at the time the "connection" was made with such links of highway and before the road was reconstructed thereon in many instances.
Nor is it required under the Act in question that the Commission should continue to use the same road as built at local expense and without resurfacing the same, but only that the same be utilized as part of a paved state highway if it is on final location; nor does the Act itself require that the same shall have been paved with "concrete" as distinguished from other types of "pavement," nor that it would have been regularly constructed by the Highway Commission of the same width or material — the requirement being that it be connected with and utilized as a part of the paved highway on its final location. Therefore, it will be readily seen that it is wholly impracticable at this late day to appraise and pay for these highways in such manner as would be fair among the several local units similarly situated as originally intended by the legislature.
Moreover, the statute is not self executing in that no funds have been set apart and designated for such purpose. Nor is there any scheme or plan set up in the Act for the making of such appraisals or declaring the effect thereof. Whether the appraisement should be made by *Page 885 the Highway Commission through its own organization and personnel or by disinterested persons is not disclosed. Whether the appraisal by the Commission itself would be binding upon the local unit without the right of appeal does not appear. Nor is it provided that if the appraisal, which would entail considerable cost, is made by other and disinterested persons, the Highway Commission would have the right to reject or disapprove the same.
The situation is, as contended by the appellant, somewhat analogous to Section 212 of the Constitution which fixes the rate of interest on the fund known as the "Chickasaw School Fund" and other trust funds for educational purposes for which the state is responsible, and which constitutional provision requires that as long as said funds are held by the state the interest thereon shall be six percent per annum from and after the close of the fiscal year 1891, and that the distribution of said interest shall be made semi-annually on the first day of May and November of each year. The Court held in the case of State ex rel. Barron, Dist. Atty. v. Cole, Auditor, 81 Miss. 174, 32 So. 314, that this constitutional provision was not self executing but required a legislative appropriation for its enforcement, and denied the petition for mandamus against the State Auditor to require him to issue a warran to pay the interest, even though the Constitution itself required that it be paid.
But it is urged that this Court has heretofore committed itself in favor of the right of a county to at least have an appraisal made of the value of the links of highway in question, by what is said in the cases of Madison County v. Mississippi State Highway Commission, 191 Miss. 192, 198 So. 284, and State ex rel. Cowan, Dist. Atty. v. State Highway Commission et al., 195 Miss. 657,13 So.2d 614. In response to this contention it should be observed that in the Madison county case, supra [191 Miss. 192, 198 So. 286], it was stated that "assuming for the purpose of this decision, and for that purpose alone, *Page 886 that the legislature in enacting section 5004 of the Code, supra (a section of Chapter 47, Laws of 1930), intended to create a liability and cause of action in favor of a local unit at whose expense a link or section of paved highway had been theretofore constructed so as to enable such local unit to compel the making of such an appraisement, it is then clear that the writ of mandamus is appropriately designed to afford the necessary remedy for that purpose." The opinion in that case further stated that "if the statute invoked by the appellant is effectual to require the appellee to cause the appraisement to be made, then the circuit court is vested with full power . . . to grant relief by mandamus . . ."; and that "therefore, a plain, adequate, and complete remedy by mandamus at law is afforded if a right of action has been granted on behalf of the local unit to compel such appraisal." The remedy there sought to be invoked was that of a mandatory injunction, and it will be seen that the court did not hold, but was careful not to say that a cause of action had in fact been created on behalf of the local unit.
However, in the Cowan case, supra [195 Miss. 657, 13 So.2d 619], the Court held that what was said in the Madison County case therein quoted had the effect of requiring "at least an appraisal by the Commission," but limited the holding to a case where the conditions prescribed by the statute shall "have come about." But in the case now before us, which was heard in the trial court on the pleadings and full proof, it affirmatively appears without substantial conflict in the evidence that Highway 51 in its entirety and 7.7 miles of Highway 80 through Hinds County, which were constructed at local expense, are not to be utilized as a part of the "final location of the continuous completed paved highway so connected," as is required as a condition precedent to the appraisal and payment therefor.
Even though the Court might be of the opinion that Highway 80 from Clinton to the Hinds-Warren County *Page 887 line and Highway 51 from the Madison County to the Copiah County line should remain in the future where they are now located, and that the same should be so considered by the Highway Commission to be on a final location, the fact remains that the legislature has committed to the Highway Commission, and not to the courts, the province of determining whether or not the said links of highway are on such a location.
It is for the Highway Commission to determine in the exercise of its sound judgment and discretion whether the needs of the traveling public through the rapidly growing capital city may soon require the relocation of Highway 51 from the Madison County line to a point some distance south of Jackson toward the town of Terry and its conversion into a four or eight lane highway (via the Municipal Airport and through west Jackson so as to avoid the "bottleneck" at Fondren and other traffic difficulties); also whether or not the 7.7 miles of Highway 80 through Bolton and Edwards is on a final location.
In the case of Board of Sup'rs of Smith County v. Hawkins,192 Miss. 330, 5 So.2d 684, 685, when the boards of supervisors possessed a jurisdiction over county roads and bridges such as that now exercised by the Highway Commission over certain designated state highways, the Court said that "the law confers upon the supervisors power and supervision over the county highways and bridges. The supervisors are in much better position than the courts to know the comparative needs of the roads and bridges and when they best serve the public." In the case at bar it is shown, according to the testimony of the officials of the Commission and the maps, surveys and plans already under consideration in regard to Highway 51 and the 7.7 miles of Highway 80 referred to as being between Clinton and the Hinds-Warren County line, that the same are not on final location.
Also, in the case of Wilkinson County v. State Highway Commission, 191 Miss. 750, 4 So.2d 298, 299, the Court cited the case of Trahan et al. v. State Highway Commission *Page 888 et al., 169 Miss. 732, 151 So. 178, to the effect that "the highway commission was and is fully empowered to relocate the line of a state highway between the points designated by the legislature, and thereby to abandon the original line." Then the Court further stated "we will not further elaborate upon what was there said except that we now add that in the relocations by the commission in eliminating curves and shortening distances and in otherwise finding a better location, the new line may depart from the old as much as eight to twelve miles, as was done in the case now before us. So long as done for any good reason in the interest of through traffic, the authority in that respect is wholly at the discretion of the State Highway Commission."
In the Wilkinson County case, supra, the Highway Commission demanded, in writing, that the county release a graveled highway constructed at local expense from Woodville north to the Adams County line, a distance of eighteen miles, for use by the Commission as a part of State Highway 61. The county acquiesced in this demand. The link of road was under the supervision of the Commission as a part of the state highway for seventeen years, when it abandoned eleven miles thereof. It was held that the Commission had the right to abandon the same. And the fact that the road there involved was a graveled one does not render inapplicable in the case at bar the principle of law hereinbefore quoted. The decision would necessarily have been the same if the old paved highway from Jackson to Clinton had been there involved after having been used for thirteen years as a part of Highway 80 and after the Commission had constructed the overhead bridge thereon at the end of West Capitol Street. The fact that it had been used for many years as a part of a paved state highway was immaterial, unless and until the Commission should determine it to be on a final location.
The acquiescence of the legislature in the non-action of the Highway Commission in regard to appraising the *Page 889 highways in question may be explained upon the theory that it has known through the years that the Commission was expending more of its own funds in Hinds and all other large counties where links of highway were built at local expense than in any of the other counties of the state; and that since the money for building said links at local expense would not in any event be refunded to the taxpayers, it would be better that current gasoline funds be expended by the Highway Commission under the advice of expert engineers than by local authorities.
By further prolonging this opinion other reasons could be given which, in my opinion, would lead to a reversal of the judgment herein, and there are other court decisions which would sustain the proposition that the writ of mandamus should not be issued in this case. The case has been well briefed on both sides, but, in my judgment, the reply brief on behalf of the Highway Commission fully answers the contentions of the appellee, and the same is so logical as to be unanswerable. But for the reasons hereinbefore stated I think that the judgment appealed from herein should be reversed and the proceeding dismissed.
Sydney Smith, C.J., concurs in this dissenting opinion.