Ponder v. Shannon

McCay, Judge. 1. Original jurisdiction is granted by the constitution to the ordinary or county commissioners over the subject of roads, bridges, etc. The judge of the superior court may, in a proper case, by certiorari, correct the errors of all inferior judicatories. But this is only a power to correct errors, not a concurrent jurisdiction over the subject. It is eminently proper that these matters shall be in the discretion of the county authorities, chosen by the people for the purpose. The judge of the superior court can only interfere when the county authorities violate the law, but so long as they keep within their legal power, the exercise of their discretion ought not to be interfered with. They know far better what the wants of the people are, and are, within their legal power, the best judges upon the whole subject. 2. It is perhaps true that under a citation to alter a road it would not be competent to discontinue the road altogether. But it is obvious that every alteration of a road involves necessarily the discontinuance of the part replaced by the alteration. And we think when the discontinuance is only of the part replaced by the alteration, that it is legitimate to do this under a citation to alter. As a matter of course this should not be used as a cloak to mislead. But we see nothing of that here. Indeed, there is no formal discontinuance by the order, though we suppose that was the intent of the court. But this is just the intent that, in our judgment, is legit-mate. There is no subject upon which men differ so much as on the propriety of a new or alteration of an old road. Many years’ experience satisfies me that on this subject especially, men will look at things to suit themselves, and that as to swamps and hills and levels, and even as to distance, they utterly lose themselves in their own interest or feelings. Under such circumstances it is an ungracious duty the commissioners have to perform, and one that the superior court or this court has not- the means to judge of. For my part I should not be willing to interfere, except in a very clear case. Judgment affirmed.