I concur in the conclusion reached in the opinion written by Judge ANDERSON in this case, and in most of the reasoning therein, but I do not believe that chapter 1080, *Page 559 Laws 1926, is valid, or has any curative effect whatever; nor do I believe that the case of Robertson v. Leflore County,112 Miss. 54, 72 So. 852, affects the decision of the question here. That case had nothing to do with the construction and laying out of roads, while chapter 277, Laws 1920, expressly provides for the construction and maintenance of highways for the convenience of the traveling public.
The dominant purpose of chapter 277, Laws 1920, is the construction and maintenance of public roads. Clause (l) of section 90 of the state Constitution prohibits special laws for laying out, opening, altering, and working roads and highways. If chapter 277 were unconstitutional (which I do not believe), it would not be cured by a special, local curative act. While this clause is express in its terms and clearly prohibits any special road law, under any guise or form whatever, regarding the subjects therein named it is not the only provision of the Constitution upon the subject. By section 85 of the Constitution, it is provided: "The legislature shall provide by general law for the working of public roads by contract or by county prisoners, or both. Such law may be put in operation only by a vote of the board of supervisors in those counties where it may be desirable."
It will be noted that the requirement here is by general law, and, by implication, prohibits special laws; and chapter 277 is one of the laws enacted by the legislature to carry out the provision of this section. Again, section 88 of the Constitution provides for general laws for the protection of local and private interests, wherever they can be enacted, and reads: "The legislature shall pass general laws, under which local and private interests shall be provided for and protected," etc. These sections clearly indicate that the policy of the state is to have general laws enacted to cover a particular case wherever they can be enacted, while clause (l) of section *Page 560 90, as above stated, prohibits absolutely the enactment of local or special laws upon the subjects therein named; and it is clearly beyond the power of the legislature to enact a local or special law, as it undertook to do, in chapter 1080, Laws 1926, upon this subject.
One of the purposes to be conserved by the Constitution is to have wise, considered, legislation wherever that can be had. It is well known that the legislature is much more careful in the enactment of general laws than it is of local or special laws. General laws are enacted for the whole state, and for the people within the state who fall within the subject-matter of the legislation. When laws are being passed, the enactment of which affects the interest of the whole people, or the state, their effect will be much more carefully studied and considered than will be the case where they affect a portion of a territory, or only a portion of the people of the state. Men will be more careful of their votes if the effect of the law is general. Special laws either confer special privileges or advantages, or else impose special burdens. Local laws, however, affect only a particular portion of the state and a certain class of people, or particular individuals, and for this reason the Constitutional Convention clearly indicated a definite purpose to have only general laws where such could be applied. These constitutional provisions should be given a fair construction by the court in order that they may serve the purpose for which they were enacted.
Since the original opinion was rendered in this case (which was withdrawn after suggestion of error was filed), I have come to doubt the constitutionality of the general act referred to in Judge ANDERSON'S opinion, chapter 278, Laws 1926, but my doubts, however, are not strong enough, with the construction put upon it by the court and the authorities cited from the United States supreme court, to warrant my dissenting. I think, however, that chapter 277, Laws 1920, is constitutional and *Page 561 needs no curative act. By section 1 of that act, it is provided that: "The board of supervisors of any county in this state are hereby authorized and empowered to construct, or construct and maintain, or maintain one or more highways for the convenience of the traveling public, by contracts in one or more supervisor's districts of said county, or part of one supervisor's district, or two or more or parts of two or more supervisor's districts in such county, and for that purpose are authorized to issue and sell bonds and to levy and to collect taxes to pay such bonds and to maintain such roads so constructed in the manner herein provided."
In my opinion, the board of supervisors, by this section, have full power to create the road district, and are not limited in that power to petition, or other action, by the people. Sections 2, 3, and 4 of the act provide for the issuance of bonds, and, while the language of section 2 thereof is not clear, reading — "That upon presentation to the board of supervisors of any county of a petition containing the names of twenty per cent of the qualified electors of any one or more supervisors districts of any territory proposed to be created and organized into a roaddistrict of such county asking that such district or districts or territory be permitted to come under the provisions of this act it shall be the duty of such board of supervisors to order an election," etc., its language does not restrict the board's right to create road districts, but is applicable to the bond issue. By reference to section 85 of the Constitution, above quoted, it will be seen that a law of the character of chapter 277 can only be put in force by the board of supervisors; and the purpose of the petition is to have the board adopt the law, if it will, and make effective the purpose of the statute. The section of the act does not specifically provide that it shall be the duty of the board to grant the petition regardless of its desire and judgment in the matter; in other words, the duty is not imposed upon *Page 562 the board to create a district, but is imposed merely for the purpose of securing a bond issue to provide money to make the scheme effective. The board may, independent of the people, create a road district under section 1 of the act; it may refuse to do so if it thinks proper. If it does refuse, no proceeding can be had under the law. I think it plain that in construing sections 170 and 85 of the Constitution together with section 1 of chapter 277, the board's jurisdiction and power is plenary in creating a road district. I think, therefore, Bryant v.Yalobusha County, 133 Miss. 714, 98 So. 148, should be modified or overruled. When that case was decided, the constitutional questions involved here were not presented and argued in that case. But I agree with Judge ANDERSON'S opinion that the board of supervisors, in that case, are not required to create a district, and that they may refuse to do so. This being true, the board has legislative discretion to create a road district, and such discretion, conferred by section 170 of the Constitution, does not require notice and hearing on the part of the people or taxpayers.