Ingram v. State Wagon Road Commission

SULLVAN, J. This is an application for a writ of mandate against the state wagon road commission, N. J. Sharp, its president, and John Hunter, its secretary, to compel the execution and delivery to the plaintiff of a contract in due form for the construction of a certain section of the state wagon road, provided for by an act of the legislature entitled, “An act to provide for the internal improvement of the state by the construction of a system of wagon roads,” etc. (Sess. Laws 1893, p. 23.) The alternative writ was issued, and the defendants answered. It appears from the record that all of the preliminary acts required to be performed by the act authorizing the construction of said road had been complied with as to the [141] Salmon river division of said road. It further appears from the record that said section of said road had been let to plaintiff after proper notice given. The only question for determination is whether a single section of a division of said road could be legally let for construction until every section in a division was let for an aggregate sum not greater than the amount appropriated for such division. After a most careful consideration of said act, I am of the opinion that said question should be answered in the" affirmative. At the time the act was passed no survey of the proposed system of roads had been made, and no definite estimate had been or could be made as to the cost of the completion of said roads. It was evidently the intention of the legislature to have the amount appropriated to each division expended toward its construction, and, if the sum appropriated for the construction of each division was not sufficient to complete the same, that such sum should nevertheless be expended toward its completion. A peremptory writ of mandate is granted as prayed for, with costs in favor of plaintiff. Huston, C. J., and Morgan, J., concur.