concurring: I concur in the able and logical opinion of Mr. Associate Justice Brogden, it may not be amiss to call attention to a few errors that the Chief Justice has fallen into in his dissenting opinion. He seems to indicate that in road building the Legislature by statute cannot control its agency, the Highway Commission, in the building of State highways. That instead of the Legislature, the lawmaking body, being supreme, the Highway Commission is the master and the Legislature the servant, when the clear language of the legislative instruction and command to the Highway Commission was as follows: “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: Provided, no roads shall he changed, altered or discontinued so as to disconnect county seats, principal towns, State or National paries or forest reserves, principal State institutions and highway systems of other states.” The Legislature, responsible to their constituents, took no chances. They had a map, naming the cities and towns on the map, and the roads are shown on the map going through these objectives, and that map was made a part of the act.
*56In the main opinion in the present action, Brogden, J., has fully and logically gone into the pertinent decisions of the Court in respect to the location of roads constituting the Highway System. Can it be supposed for one moment that the Legislature would put into the hands of ten men — if they had the wisdom of Solomon — $85,000,000, with no restraint, but unbridled, to spend this money when and where they please in the State? Such a judicial dream comes not from the realities of life, but from the cloister of the confined student dealing in aircastles of kingly power, such as we read about in the story books long ago. The primary purpose of the State Highway Act was to take care of and foster the agricultural, commercial and industrial interests of the State. The Legislature, in the due exercise of its power, provided for ten Highway Commissioners, an administrative body, to carry out its will and mandate, giving this Highway Commission fixed, certain and limited powers. The largest appropriation ever made in the history of the State was made, and this enormous sum to be spent on roads was not left to a commission of teu, no matter how capable, efficient and honest they may be, without limitations. The mandate of the Legislature was the building -of a fixed system, mapped by it for the commission. The Legislature, the • creator, the commission, the agency. A map was attached to the act. It showed the 100 county seats, and marked on the map were the names of each county seat, without calling it a county seat. Also about 176 other places named on the map and the roads as shown on the map went through the county seats and the other places named, as set forth on the map. The general purpose as set forth in the act, was for the State to lay out, take over, establish and construct and assume control of approximately 5,500 miles of hard-surfaced and other dependable highways running to all County seats and to all principal towns, State parles and principal State institutions, etc., with special views of development of agriculture, commercial and natural, resources of the State; and for the further purpose of permitting the State to assume control of the State highways, repair, construct and reconstruct and maintain them at the expense of the State and relieve the counties, cities and towns of the State of this burden. The intent was to establish and maintain a State system to be hard-surfaced as rapidly as possible, of durable hard-surfaced, all-weather roads connecting the various county seats, principal towns and cities.
Since the Halifax Convention, the whole history of the State was contrary to unlimited or arbitrary power. That convention, on 12 November, 1776, adopted the first Constitution of the State. The preamble is “A Declaration of Rights made by the Representatives of the Freemen of the State of North Carolina.” The very first section was “That all political power is vested in and derived from the people only.” *57It took eight years before the surrender at Yorktown to make good that the divine right of kings to rule was at an end. I believe that this State will never recede from the principle, not only to make the “world” but “North Carolina” safe for democracy. No administrative body appointed by the law-making body with definite and fixed duties, by judicial decision can be given a monopoly of power and destroy any road, mapped, taken over and going through the county seats in the 100 counties of the State and the principal towns.
The dissenting opinion of the Chief Justice proceeds upon the theory that the defendant, Highway Commission, should have more power. It does concede that there are limitations in the statute, but omits to point out what these limitations are or to give any effect to them. The defendant admitted that the location of the road from Philadelphus Church to Pates is not in accordance with the legislative map. If so, the legislative map has been neither a hindrance nor an obstruction to the full exercise of the discretion of the defendant. If the defendant did not locate the road in accordance with the legislative map, then it must necessarily follow that it located it in the exercise of its own discretion and it ought not to complain of its own act and of the exercise of its deliberate judgment in selecting and incorporating into the State system, the highway in controversy. How many times did the statute contemplate that the defendant could exercise its discretion? It claims the right to exercise it in the same matter twice. If twice, why not a dozen times? It was to prevent this very uncertainty in regard to the location of highways that the statute provided the formalities which should be observed in locating highways, and it further provided “and the decision of the State Highway Commission shall be final.” Citizens of the State had a right to rely upon these mandatory provisions of law, and they did rely upon them. They came upon these highways, bought property, built their stores and filling stations thereon with full faith that the General Assembly of this State knew what it was about in prescribing the formalities to be observed in establishing a fixed system of highways for the State and which would avoid the filling of the State with angry discord over the constant juggling of the roads of the highway system. But the dissenting opinion says “that the road has already been located, though unwittingly on the part of everybody.” This language means that the Legislature unwittingly made a map and unwittingly incorporated it as a part of the Eoad Act; that thereupon the defendant unwittingly made a map of the roads in Eobeson County, which it unwittingly proposed “to constitute links” in the State Highway System; that thereafter the defendant unwittingly rendered a final decision in the matter and unwittingly took over, selected and assumed control of the road and has unwittingly maintained it for five years. It *58is doubted if the defendant will admit that it has so unwittingly performed its duty since its creation.
Again, it is said, in referring to the legislative map: “A very remarkable map, indeed! I confess that it does not excite my admiration as a work of art, for it was never intended as such. It was prepared hurriedly by men in Raleigh who had no idea they were actually locating roads ‘by painting highways on a painted landscape.’ ” The suggestion is that the Legislature in making the map by declaring that the map “is hereto attached to this bill and made a part hereof,” was doing a very ridiculous thing. The act was carefully prepared by a committee of the Good Roads Association of the State. It was carefully prepared by the ablest men in the State then in the Legislature. It is considered over the Nation the most practicable piece of road legislation enacted. The two present dissenters do n'ot agree with the combined judgment of that able body of public representatives. An examination of chapter 2, Public Laws 1921, will disclose a map. The legend upon the map is as follows: “Prepared in office of State Highway Commission of Raleigh, N. CP If it is a bad map, defendant made it. If it falls short of being a work of art, the defendant alone is responsible. If it is a “painted highway on a painted landscape,” then the defendant painted the landscape, presumably, according to its own notions of art. Evidently, the defendant, in making this map attached to the act, assumed responsibility for it by putting its name thereon and claiming the authorship of it. It ought not to be permitted to disown its own child. At the time it was incorporated into the law, it was deemed sufficient as a basis of securing votes for the issuance of $50,000,000.00 of bonds. But it is further asserted that if the formalities prescribed by the statute in locating roads should be upheld that this would in effect amount to settling the location of highways by “legislative fiat.” Does this mean that the Legislature has no power to locate a road, but that its servant, the Highway Commission, can do so? If this reasoning is correct, then the servant becomes greater than the master; the part greater than the whole; and the creature greater than the creator. Is there any reason why the Legislature could not locate a road by legislative decree? Every county in the State and every city in the State has been building highways for years by legislative fiat. The governing authorities of counties and cities have passed resolutions directing where streets and highways should be built and how they should be laid out and with what materials they should be paved. Doubtless, they never dreamed that this was building highways .by legislative fiat and forbidden by the law.
Now, if the governing authorities of cities and towns of the State can locate highways by legislative fiat, by what process of reason can it *59be maintained that the governing authorities of the entire State, to wit, its Legislature, cannot wield these mighty powers?
It is further contended that the Court is attempting to locate a road. I do not so construe the opinion. The Court holds that it has the right to determine when a highway runs to a county seat, and also to determine whether a county seat has been disconnected. In the Cameron case, the Court very readily declared that it could determine what a principal town was, althpugh it was a “mixed question of law and fact.” But it is now suggested that the Court cannot determine what a disconnection is when there is no dispute as to the fact. I do not think that the processes of reason have changed" since the Cameron case was written.
It is further said that, “The State Highway Commission, with the aid of the commissioners of Robeson County and other local authorities, has determined that ‘the most practicable route’ from Red Springs to Lumberton is by way of Pembroke.” The same defendant and the commissioners of Robeson County also determined in 1921 that the practicable route from Red Springs to Lumberton was ■ the highway marked in red upon Exhibit “A.” So far as this record discloses the road now is just as it was in 1921. There has been no change in the road. It is, therefore, just as practicable today as it was in 1921.
The dissenting opinion by Mr. Justice Adams sets up an imaginary case as to what would happen if the termination of the road at McNeill’s Bridge had been presented for review. This would doubtless be an interesting proposition if presented, but it seems that no question was raised about this matter in the trial court, all parties apparently being satisfied. The Court, in its opinion, undertook to pass upon the question presented which was, among other things, whether or not the termination of the road at Pates amounted to a disconnection, and whether or not the express command of the Legislature that all roads in the system should “run to” and “connect” county seats had been complied with. Therefore, all fine-spun theories about McNeill’s Bridge is not pertinent to this case.
The opinion says further: “The basic error pervading the opinion consists in assuming jurisdiction of the question which the Legislature has referred to an administrative agency of the State.” The bald proposition, then, is that no citizen of the State can assert or maintain any right with respect to highways because it is “basic error” to assume that such jurisdiction resides anywhere except in the discretion of the defendant. Then again, it is said: “I think the fallacy implied in the questions quoted above lies in the assumption that by connecting with route 20 at Pembroke, route 70 would terminate at this place.” Now, if route 70 does not terminate at Pates, where it intersects route 20, *60what becomes of it? Not another inch of grading or excavation can be done upon it. Not an inch of paving could be laid upon it beyond that point. It becomes a lost road. Does it take to the air at Pates or is it in the contemplation of the mind deemed to continue an intangible ghostlike existence with No. 20? Aside from fine metaphysical distinctions, I think the road as a practical proposition terminates at Pates.
With all deference, I think the dissenting opinions do not undertake to meet, discuss or answer the propositions of law contained in the opinion of the Court, but may be fairly termed “confessions and avoidances” by academic discussion of questions not pertinent and an array of impossible, illogical and impractical conclusions.
The issue is clearly drawn. The dissenting opinions assert that the so-called and imaginary “gyves,” “shackles” and “thraldom” imposed by law should be taken from the defendant, but if their iirayer for relief is granted in the manner and for the reasons given therein, these same “gyves” and “shackles” and this same “thraldom” will be firmly riveted upon the citizens of this State so that they may ask but not be heard; they may knock but it will not be opened. I know not what course others may pursue, but as for me I will stand with undimmed faith for the privilege of the humblest citizen of this State to assert and maintain his rights with respect to the location of the highways.