July 20, 1910. The opinion of the Court was delivered by The judgment of the Circuit Court herewith reported, together with the exceptions thereto, should be affirmed for reasons therein stated.
While the Judge hearing the application does not try the case upon its merits, it is incumbent upon plaintiff to make out a prima facie case that temporary injunction is reasonably essential to protect his rights.
Temporary injunction does not follow automatically when the complaint states a cause of action. Northrop v.Simpson, 69 S.C. 554, 48 S.E., 613; Marion Company v. Tilghman Co., 75 S.C. 221, 55 S.E., 337; Crawford v. Lumber Corporation, 77 S.C. 83, 57 S.E., 670.
If plaintiff's prima facie case depends upon allegations that a statute is unconstitutional, the Judge hearing the application must consider that matter in determining the reasonable necessity for temporary injunction, and if he holds the statute valid the necessity is not made to appear. The question is one of law, in which the presumption is in favor of the validity of the statute. In order to reverse the refusal of temporary injunction in such a case, this Court must review the constitutional question.
In Riley v. Union Station Co., 67 S.C. 84,45 S.E., 149, the Judge hearing the application for injunction did not consider the constitutional question, hence there was no basis for a review of that matter by this Court, but in that case the Circuit Judge held that there was no prima *Page 406 facie showing that the lands proposed to be condemned were not necessary for the construction of the proposed Union station, and this Court reversed the order of refusal upon the grounds:
1. Because the statute did not furnish an adequate remedy when the right to condemn was in issue.
2. Because the allegations of the fact made a prima facie case showing that injunction was necessary to preserve plaintiff's rights.
In that case there were allegations showing that the taking of the proposed land would prevent plaintiff from further use and occupation of her home, and would destroy an established industry and business thereon to her irreparable injury, and that the taking of the property was not necessary, but oppressive.
After trial upon the merits, Riley v. Union Station was again appealed to this Court, 71 S.C. 482, 51 S.E., 485, and this Court held: "That the grantee of the power to condemn must not abuse the discretion confided by the legislature and spoliate a private property by taking for pretended public use more than a reasonable necessity requires. We find no abuse of discretion or bad faith in defendant's proposal to condemn plaintiff's property, and the general rule is that if there be no bad faith or abuse or discretion on the part of the grantee in the matter of location, his discretion will not be intefered with."
From this it appears that in order to prevent a merequasi public corporation organized for private gain, authorized by law to condemn land, from proceeding to condemn what it decides to be necessary, it must be shown that there was abuse of discretion or bad faith in the location and selection of property to be condemned.
But we are dealing now with a strictly public corporation which seeks merely an easement over plaintiff's land for strictly public use. The danger of oppression or spoliation *Page 407 of private property for gain is very slight, if any. Hence there is greater reason in this case to require a showing that the public officers are about to abuse their discretion or act in bad faith, or oppressively, in changing the location of the old road.
The statute, section 1343, volume I, Code of Laws, as well as the act of February 26, 1902, p. 998, authorizes the county board of commissioners to "open new public roads and widen or change the location of old public roads where, in their judgment, such change would be for the material interests of the traveling public. They may obtain the right of way by gift or purchase, or they may condemn the land therefor and assess the compensation and damages therefor, as hereinafter provided."
The statute thus plainly confides the matter of determining the necessity for the new road or alteration of the old road to the judgment and discretion of the commissioners, and the complaint shows that the commissioners have determined that the proposed change in the old road will be material for the interests of the traveling public.
The original and amended complaint contained this allegation that might be regarded as having some bearing: "That there is at present, and has been for a number of years, a public highway extending through plaintiff's said plantation, connecting the same communities that are proposed to be connected by the said proposed highway, which present highway, according to the best knowledge, information and belief of plaintiff, is as convenient and affords as short a route to the traveling public of the neighborhood as would this proposed new road."
The amended complaint contains this additional allegation: "That, according to her best knowledge and belief, it is entirely practicable to make the said established highway into a highly improved and wholly efficient highway at very slightly, if any, greater expense to the county than will be required for the opening and establishing of said proposed *Page 408 new highway, and she charges that there is no necessity for such new highway."
There is no allegation showing abuse of discretion, bad faith or oppression. It is greatly in favor of the new road, that it may be opened and established at an expense not exceeding what would be necessary to repair and improve the old road, and it may well be inferred that the future cost of maintenance would be greatly in favor of the new road, and it may be that the new road would be safer than the old. Moreover, the commissioners are to consider what is the material interest of the "traveling public," a much broader scope than the "traveling public of the neighborhood," to which the allegation of the complaint is confined. There is nothing to show that the commissioners did not in good faith consider and determine the matter with a view to the material interests of the traveling public, as required by the statute. Furthermore, there is nothing in the complaint to show that the mere work of laying out and constructing the new road would entail irreparable damage to plaintiff's land, and if on the trial of the case on its merits, the Court should enjoin the new and restore the old road, for all that appears, plaintiff would be restored to her alleged rights, the loss of construction, etc., falling upon the county. Northrop v. Simpson, 69 S.C. 554, 48 S.E., 613.
The exceptions should be overruled, and the order of the Circuit Judge affirmed.
MR. JUSTICE GARY concurs in the result. *Page 409