Cameron v. State Highway Commission

Clarkson, J.,

concurring, in part: I concur in so much of the opinion of Mr. Justice Adams as is germain to the main controversy here, in which he says: “It is clear, therefore, that the Legislature was not willing to confer such extended powers on the commission.”

The plaintiffs, on behalf of themselves and other citizens and property owners of Durham and Granville counties, bring this action praying an injunction against the State Highway Commission from aban-*95cloning what is known as the “Stem Eoute” between the county-seats of Durham and Granville counties, the road regularly taken over by the State Highway Commission and used for several years as part of the State system and kept up by the State, and making an entirely neiv route, known as the “Creedmoor Eoute,” between the two county-seats, and making the new road almost parallel to the old, some 3 to 10 miles distance apart from the old Stem Eoute and going by Creedmoor. Each route is about 29 miles and the hard-surfacing will cost about the same for each. This is an important matter, as the cost of hard-surfacing either road will be about $1,000,000. The only question involved is, Has the State Highway Commission the power and authority in its legal discretion to make this change? We must interpret the State Highway Eoad Act for the answer. In the interpretation, to get the intent of the Legislature — the polar star — we are permitted to examine the Avritten documents that the Legislature had before it on the passage of the State Highway Act — not as binding, but persuasive. Especially is this so if the meaning of any word or phrase is ambiguous, as is contended in the case at bar — ■'principal towns.

Mr. Justice Sanford, of the Supreme Court of the U. S., in Everard v. Day (opinion delivered 9 June, 1924), advance sheets, in construing whether an act of Congress was arbitrary and unreasonable, considered the public hearings before the Judiciary Committee of the House and the report of the committee founded on the hearings, as bearing on the act which the Court was called upon to construe. By analogy, to construe the present State Highway Act, it is legal and proper to consider what the Legislature had before them when they passed the present State Highway Act.

They had a bill entitled as follows:

“North Carolina Good Eoads Association — Suggested Bill: To provide for the construction and maintenance of a State system of hard-surfaced and other dependable highways, together with map, outlining suggested construction districts for an' equitable distribution of construction funds.”

By a careful reading of this “suggested bill” and the State Highway Act, Laws 1921, ch. 2, the two bills are practically similar, with a few changes. The map in each bill is the same, except for some additional roads and the towns they went through added to the map in the act as passed. Each bill has the same towns named on the map and the additional towns added through which the roads to be taken over by the State were to run — from county-seat to county-seat. Each map had “Stem” and the road from the county-seat of Durham to the county-seat of Oxford to run through Stem.

*96Part of section 7 of the act of 1921, ch. 2, is as follows:

“Fifty-five hundred (5,500) miles shall be the approximate maximum limit of mileage of the State Highway System. The designation of all roads comprising the State Highway System as proposed by the State Highway Commission shall be mapped, and there shall be publicly posted at the courthouse door in every county in the State a map of all the roads in such county in the State system, and the board of county commissioners or county road-governing body of each county, or street-governing body of each city or town in the State, shall be notified of the routes that are to be selected and made a part of the State system of highways; and if no objection or protest is made by the board of county commissioners or the county road-governing body of any county, or street-governing body of any city or town in the State within sixty days after the notification before mentioned, then and in that case the said roads or streets, to which no objections are made, shall be and constitute links or parts of the State Highway System. If any objections are made by the board of county commissioners or county road-governing body, or any county or street-governing body of any city or town, the whole matter shall be heard and determined by the State Highway Commission in session, under such rules and regulations as may be laid down by the State Highway Commission, notice of the time and place of hearing to be given by the State Highway Commission at the courthouse door in the county, and in some newspaper published in the county, at least ten days prior to the hearing, and the decision of the State Highway Commission shall be final. A map showing the proposed roads to constitute the State Highway System is hereto attached to this bill and made a part hereof. The roads so shown can be changed, altered, added to or discontinued by the State Highway Commission.” Thus far both sections of the act as passed and the “suggested bill” were similar and the above in italics is the exact language in both bills.

The “suggested bill” gave the State Highway Commission discretion, and the courts could not interfere with the discretionary powers conferred unless their action is so clearly unreasonable as to amount to an oppressive and manifest abuse of the discretion .conferred. Newton v. School Committee, 158 N. C., 186; School Committee v. Board of Education, 186 N. C., 647, and numerous cases cited.

But the Legislature would not accept this “suggested bill,” giving this discretionary power, but added in the bill as passed, in section 7, supra, this proviso: "Provided, no roads shall be changed, altered, or discontinued so as to disconnect county-seals, principal towns, State or National paries or forest reserves, principal State institutions, and highway systems of other States.”

*97Tbe Legislature would take no chances. They bad tbe map in tbe “suggested bill” before tbem, and on it were marked tbe towns through which the roads were shown to run — from county-seat to county-seat. They added to the map more roads and put down the towns through which the roads were to run. They used the words “principal towns.” The legislators saw on the map these towns marked. Why put them on the map if they were not pihncipal towns? They were- responsible to their constituents for what they did, and they deliberately said in the proviso that no roads shall be changed, altered or discontinued so as to disconnect principal toivns. What is the meaning of disconnect? Webster defines it as follows: “To dissolve the union or connection of; to disunite; to sever; to separate; to disperse.”

If the towns marked on the map were not principal towns and the towns the Legislature had in mind, what would there be to disconnect, “to dissolve the union or connection of”; “to disunite”; “to sever,” etc ? If the construction here given was not the intention of the Legislature, the word disconnect is meaningless in the act. The word not only applies to the towns on the map, but to the State or National parks, or forest reserves, principal State institutions and highway systems of other States. Creedmoor was never connected on the system to disconnect, Stem was, and it cannot be discontinued without making a word, the meaning of which is well known in the English language, senseless.

Section 10 (b) of the State Highway Act, supra, does not in any way change the construction and meaning put on principal towns as being the towns marked on the map, and the Legislature so understood. That section is as follows:

“To take over and assume exclusive control for the benefit of the State of any existing county or township roads, and to locate and acquire rights of way for any new roads that may be necessary for a State highway system, with full power to widen, relocate, change or alter the grade or location thereof; to change or relocate any existing roads that the State Highway Commission may now own or may acquire,” etc.

This section, construed with the proviso, supra, clearly means to change and relocate between the principal toiuns on the map. This means to change grades, to make shorter routes -between the principal towns on the map, to avoid railroad crossings, to go under railroads, etc., so as to cheapen construction along the fixed route as mapped between the county-seats, but the State road must go through, or near to, the principal towns on the map.

The construction of that part of chapter 2 of the Laws of -1921, relative to this controversy, has only been before the Court in the case *98of Road Commission of Edgecombe Co. v. State Highway Commission, 185 N. C., 56, but the facts are so dissimilar that tbe decision in that case cannot be considered as authority in the instant case. There the effort was made to shorten a link in the highway between Halifax and Tarboro, to wit, that part between Scotland Neck and Moore's Crossing. In this case it is a complete abandonment of the entire road from beginning to end as shown on the map from the county-seat of Durham to the county-seat of Granville, and in rerouting the highway between two points in different parts of the counties. There they did not disconnect a principal town, as Hobgood (on the map) is on that part of the highway system running from Halifax in Halifax County to 'Wil-liamston in Martin County, and Speed was an unincorporated village (not on the map). In the instant case, the town of Stem, one of the principal ones of the county (and on the map) is disconnected.

The town of Stem was made a party plaintiff, and alleged:

“That said town of Stem was incorporated in the year of 1911, and now has a population of 300, and it is the second largest town in the county of Granville, with the exception of Oxford, the county-seat of said county, and is located on the present highway leading from Durham to Oxford, being twenty miles from Durham and eleven miles from Oxford, and is one of the principal towns of the county of Gran-ville.
“That the defendants were without authority to make a decision to discontinue said highway through said town of Stem as a part of the State system of highways, and to lay out and construct a new route by the town of Creedmoor, which will cut the said town of Stem entirely off from the said highway and will cause a great loss to the citizens of said town, community and section in which it is located, who have bought land and built homes along said highway upon the faith that the same would be continued as a part of the State Highway system.”

From all the facts as they appear from the entire record, I think the State Highway Commission did not have the legislative power or authority to run the State roads except through or near the towns as set forth on the map; that by legislative mandate the towns named on the map, by clear intent, were to remain on a highway running from a county-seat to a county-seat and were principal towns. I do not believe the bill would have been passed if the Legislature had thought that the map was a “scrap of paper,” and the towns named on the map were put there with no meaning. The Stem Route was taken over as a part of the State Highway System, through Stem, by the State Highway Commission, in accordance with the statute, and the road maintained by the State. Counties can build all the roads they want to, *99but this cannot be done at the expense of the State system, or by changing the legislative State Highway System Act to do so. If it can be done in this case, the legislative map is a nullity and should not have been put in the act.

The State Highway Engineer’s report on this matter, which appears in the record, is in part as follows:

Conclusion: “The saving of cost in operation of vehicles on the Stem Route will outweigh the slightly greater cost of construction and small difference in distance. Moreover, flood' conditions can be met with greater certainty on the Stem Route. It is, therefore, my opinion that the engineering factors favor the Stem route. (Italics mine.) The margin is not great, and other factors, such as local service, opening up a new section, and land values, which favor the Creedmoor -route, should be balanced against the engineering features and the advisability of changing the State Highway from its present location on the Stem route.”

W. C. Riddick made affidavit: “That in my opinion it would not be safe to construct the bridge and embanhment over Neuse River on the Creedmoor Route (where the lowgrounds are low and broad), as was shown on the profile of the Highway Commission engineers. I further stated that should the Creedmoor Route be adopted I did not believe the engineers of the Highway Commission, with the facts before them would tahe the rish of constructing the bridge and embanhment as shown on said profile,” and gave his reasons.

The Stem Route would cost about $20,000 less than the Creedmoor Route. The defendant’s engineer, who surveyed these two roads, reported, “It is, therefore, my opinion that the engineering factors favor the Stem Route.” Stem was, under the clear meaning of the law, a principal town (named on the map. Why?); so considered by the Legislature, and, in my opinion, neither this Court nor the State Highway Commission have the power to depart from the mandate of the Legislature and wipe from the road system of the State a road mapjted as going through Stem (named on the map), taken over under the State Act, kept up by the State, and make an entirely new road and hard surface it at the cost of about $1,000,000. If it can be done in this ease, it can be done anywhere in the State, and a great act may become a “football” between contending factions. Such was not the legislative purpose. The map and principal towns named on it were an orderly system, and if followed will make for peace.

On the entire record in this case and the findings of the court below, I go further than Mr. Justice Adams — -that the Legislature was not only “not willing to confer such extended powers on the commission,” *100but they did not — they limited them in going from county-seat to county-seat, to go by principal towns. The towns on the map were the principal towns in the minds of' the Legislature when the act was passed.

The creator of this act, the Legislature, used language positive and unequivocal: “No roads shall be changed, altered or discontinued so as to disconnect principal towns.” The only town on that route on the map was Stem. To disconnect Stem will make the act senseless and meaningless.