*799ON MOTION EOR REHEARING
Hines, J.In one of the grounds of the motion for rehearing it is insisted that we overlooked the decision in Jackson v. State Highway Department, 164 Ga. 434 (138 S. E. 847). In that case the authority of the State Highway Board to relocate a State-aid road connecting two county-sites was not involved or decided. The petition in that case did not allege that the road from Greensboro to Sparta had been designated as a State-aid road and notice thereof given to the County of Greene, as required by the act of 1919. The petition alleged that before Route 15 was .undertaken by the State Highway Department, there existed, and still exists, a much traveled road between Greensboro and Sparta, being the original county-site road of said county, and that it was being used as such, maintained, topsoiled, and worked by said department. This was the only allegation in that case which squinted at the fact that the old road between Greensboro and Sparta, which the petition. alleged had been in use for 100 years, had been designated and taken over by the State Highway Department as the interconnecting county-seat road between these two cities. The petition did not allege that the State Highway Department was abandoning or changing a State-aid road which it had designated and over which it had taken jurisdiction. It only alleged that the State Highway Department proposed to abandon this original route from Greensboro to Sparta, and to. substitute therefor a new road between said towns. It further alleged that at one time the State Highway Department and the county authorities decided to use the original route between these towns, but now proposed to go said other route. It further alleged that petitioners were unable to know which route would be adopted, having been misled by promises from said authorities in charge that said original route would be finally adopted and used as a link of State Route 15. The petition did not deny the authority of the Highway Department to locate Route 15. Paragraph 21 of the petition in that case was as follows: “Petitioners allege the adoption of said Siloam White Plains route, with the attendant extra and additional cost it entails, and the longer distance of travel, and the inconvenience and extra cost of travel over the said Eatonton and Milledgeville roads to and from all points within this section and territory, and other facts herein alleged, not only amount to abuse of any discretion vested in said State and *800county boards to designate said road, but the same is contrary to the proviso of the State-aid road laws of Georgia, that due consideration shall be given in designating such roads to topographic and construction difficulties, and that the total mileage of such roads shall be limited, which said provisions have not been complied with in making said designation, and therefore reviewable by the courts.”
Paragraph 22 was as follows: “Petitioners show that both Si-loam and White Plains are incorporated towns in Greene County, and it is illegal to use State-aid road funds or State money to build roads through said incorporated towns, which is attempted to be done on said Siloam White Plains route; and petitioners allege that the law passed by the General Assembly of said State, and approved April 21st, 1922, undertaking to amend provision 5, sec. 5, article 5, Laws 1919, and amendments thereto, Acts 1921, by providing that said State Highway Board is authorized to construct and maintain State-aid roads in and through towns and cities of not more than 2500 people, as set out in Acts 1922, page 177, is unconstitutional and null and void, in that it violates the provision of the constitution of the State of Georgia as embodied in section 4, article 1, paragraph 1, of the constitution, and section 6391 of Park’s Code.” An amendment to the petition alleged that the Highway Department had abused the discretion resting in it by law, in designating the Siloam and White Plains route; and that said designation of that route was illegal, in that no recognition of the unnecessarily expensive difficulties in laying out said road were considered or recognized, and that said designation was arbitrary, and of such unnecessarily enormous cost to petitioners and taxpayers of the State as to be oppressive and burdensome. The facts upon which the plaintiffs relied to show that the Highway Board was abusing the discretion vested in it by law appear from the opinion in that case. In the brief of counsel for plaintiffs in error, filed in this court in that case, it was said: “Unless the petition shows defendants in error abused their discretion, as alleged in paragraph 21 of plaintiff’s petition and in the amendment to petition, or are proceeding contrary to law in regard to said route as alleged in paragraphs 21 and 22 and said amendment to petition, the petition would not withstand general demurrer. But if either of said propositions are shown by the allegations of the petition, *801plaintiffs in error contend the demurrer should not be sustained nor petition dismissed.” It will thus be seen that the plaintiffs in the ease cited did not question the authority of the State Highway Department to locate Route 15; but simply contended that there was an abuse of discretion in locating that route instead of designating the old road between these towns as a State-aid road. As appears from the above extract from their brief, plaintiffs’ counsel did not question the authority of the Highway Department to locate Route 15, but only contended that there was an abuse of their power in so doing. So the question decided in the present case was in no way made, involved, or decided in the case cited.
It is next insisted that this court overlooked the fact that the map which it was contended showed that the road via McBean had been designated as the interconnecting county-seat road between Augusta and Waynesboro was prepared in September, 1921, before the act of 1921 went into effect on January 1, 1922, and consequently there could be no official designation of a road prior to the act giving the State Highway Board authority to do so; and that there is nothing in the record to authorize the conclusion that the State Highway Department had designated the McBean Route officially. The mere fact that the designation of this road is on a map made prior to the time the act of 1921 went into effect does not make illegal a designation of this highway on said map, after said act became effective. Furthermore, the act of 1921 provides “that the said Highway Department shall take over the State-aid roads as above mentioned on or before January 1, 1922.” This necessarily implies that the State Highway Department could proceed in designating these roads under the act of 1919. Furthermore, it appears from the record that the McBean Route had been taken over by the State Highway Department under the act of 1919, and had been maintained for a number of years prior to the attempt of the State Highway Board to relocate it as a State-aid road. If it had not been designated as a State-aid road, the State Highway Board would have been without authority to relocate it. Relocation of a State-aid road necessarily implies that it had been designated and taken over by the State Highway Board in accordance with law. So a majority of the court are of the opinion that the motion for rehearing is without merit.
Rehearing denied.