Marks v. Richmond County

Hines, J. (After stating the foregoing facts.) The correct decision of this case depends upon the proper construction of the resolution of the commissioners of Richmond County, adopted on October 13, 1925, which provided for an election on the' issue of bonds “for paving the stretches of State Highways traversing” said county; and upon the proper construction of the notice given to voters upon that issue. The whole resolution, including caption, preamble, and all, was published as such notice to the voters. Was it the purpose of this bond issue to provide funds for paving State highways, or stretches of such highways, then in existence, or were the bonds voted for paving State highways which had not been proposed, had not been located, and had no existence at the dates of the passage of this resolution and of the election held in pursuance thereof? A casual reading of this resolution shows that these bonds were voted to pave stretches of State highways then in existence, and not for the purpose of paving State highways which had not been located and had no existence at the times the resolution was adopted and the election was held. The preamble of the resolution recites, that “The county authorities of Richmond County, conjointly with the State Highway Department . . with the use of Federal-aid money, have expended large sums of money in reducing grades, making fills, leveling curves upon the sections of State highways traversing Richmond County, and in building permanent bridges over streams crossing such stretches of State highways hi Richmond County, thereby making them conform to the requirements of the State Highway Department . . and to the United. States Government, and thereby fitting and preparing such roads for paving;” that “such highways, as now maintained, are incapable of standing the wear and tear incident to heavy motor-vehicle travel now passing over them;” that “the State Highway Department . . with the use of Federal-aid money will defray one half of the. cost of paving the stretches of State highways traversing Richmond County, if Richmond County will defray one half of the expense of paving such sections of State roads,” that “it will not only be the [323] part of economy at this time to pave such sections of State highways, but the necessity for and the great importance of hard-surfaced highways makes it imperative that such stretches of State highways be paved in their entirety;” and that “it is the sense of this board that an election should be held on the question of issuing $750,000 of paving bonds for paving and improving the stretches of State highways traversing Richmond County.” In the resolution it was directed “that an election be held . . for the purpose of determining whether Richmond County shall issue $750,-000 of . . paving bonds . . the proceeds from the sale of such bonds to be used for the purpose of improving the stretches of State highways in Richmond County.” The notice to the voters of the county declared that the purpose of this bond issue was for “paving with hard surfacing and improving the stretches of State highways traversing Richmond County.” Thus it will appear that the resolution refers to State highways upon which the County of Richmond, in conjunction with the State Highway Board and with the use of Federal money, had expended large sums of money in reducing grades, making fills, and eliminating curves upon sections of such highways traversing that county, and in building permanent bridges over streams crossing such stretches of State highways in that county. 'You can not reduce grades, make fills, and eliminate curves in and from roads which have not been located, and which do not exist even on paper. The reference is to highways which traverse Richmond County. A highway which has no existence can not traverse even Richmond County. In describing these roads the present participle, traversing, is used. Thus, by the facts stated and the language used in describing these highways, the clear and unmistakable reference is to roads already built, and not to roads yet to be built. Again, the reference is to “such highways as [are] now maintained,” and to highways which “are incapable of standing the wear and tear incident to heavy motor-vehicle travel now passing over them.” There can be no heavy motor-vehicle travel over highways which have not been built and which rest in the breasts of the State Highway Board and the commissioners of Richmond County. Even a Ford car can not travel over such a highway. The further reference is to motor-vehicles passing over such roads. Clearly motor-vehicles can not pass over roads which [324] have not been surveyed, located, or built. Again the reference is to the issuing of $750,000 of bonds “for paving and improving the stretches of State highways traversing Richmond County.” A highway which is neither surveyed, located, nor built can not traverse Richmond County. Then in the resolution it is provided that “the proceeds from the sale of such bonds” are “to be used for the purpose of improving the stretches of State highways in Richmond County,” — then in that county; not to stretches of highways which may in the future be found in that county. The resolution and the notice deal with the present, -not the future. The bonds were voted to pave roads then in esse, and not to roads which might come into existence in the future. Such funds are available for paving stretches on existing routes, and not for construction on a new line for a part of the way, constituting a material departure. Thompson v. Pierce County, 113 Wash. 237 (193 Pac. 706). The provision for paving stretches of State highways traversing the county implies the prior existence of such highways and such stretches. Ames v. Trenton Brewing Co., 56 N J. Eq. 309, 317 (38 Atl. 858); Wolff Chemical Co. v. Philadelphia, 217 Pa. 215 (66 Atl. 344). So we are of the opinion that the funds arising from these bonds can not be applied to paving or other work on the Peach Orchard route. These bonds having been voted for the purpose of paving stretches of State highways which were then in existence and which then traversed the County of Richmond, the funds arising from their sale could not be diverted from that purpose and applied to the laying out or paving of new State highways which the State Highway Board might determine to establish, nor to paving stretches of a relocated State highway the location of which was determined upon after the election, especially when such relocation involves material changes in the route and amounts to a virtual abandonment of a State highway which was in existence when the election took place, and stretches of which were improved and ready for pavement. Funds raised by a bond issue for a specific purpose by popular vote can not be diverted to any other purpose whatsoever. They constitute trust funds to be used only for the purpose for which the bonds were voted. Adams v. Helms, 95 Miss. 211 (48 So. 290); Red River Valley Nat. Bank v. Fargo, 14 N. D. 88 (103 N. W. 390); State v. Mikkelson, 24 N. D. 175 [325] (139 N. W. 525); Thompson v. Pierce County, supra; Wolff Chemical Co. v. Philadelphia, supra; Major v. Aldan Borough, 209 Pa. 247 (58 Atl. 490). The voters might not have voted for this large issue of bonds, if the roads on which the proceeds of the bond issue were to be spent were not then in existence, and if such roads were in the future to be established and located by the county authorities or the State Highway Board. Good faith with the voters requires that these funds should be used in paving State-aid roads which had been designated at the time of the passage of this resolution and which were in existence at the date of the election. The diversion of these funds can not be justified upon the ground that the new route is more feasible than the old one, or upon the ground that the State Highway Board and the Federal Bureau of Boads refuse to co-operate with the county authorities in paving the old route, or on the ground that the State Highway Board has selected and designated the new route as a State-aid road, or on the ground of any violation of duty on the part of the State Highway Board in the premises. Section 2 of the act of August 10, 1921 (Acts 1921, pp. 199, 201), in part provides “that nothing in this provision or in any other provision of this law shall be construed to mean that the county can not appropriate and spend any funds they desire on building and maintaining any of the State-aid roads.” 8 Park’s Code Supp. 1922, § 828 (vvv). Hnder this provision, when the State Highway Board designates a county-site road and assumes its maintenance, the county can still appropriate and spend funds for building and maintaining such road. The county authorities are thereby authorized to submit to public vote a bond issue for the purpose of raising funds for building and maintaining a State-aid road, although they are not required so to do;-and when such bonds are voted and funds are raised from such bond issue for such purpose, they must be applied to the building and maintenance of such roads. They become a trust fund for such purpose, and can not be diverted therefrom, although the State Highway Board may abandon such State-aid road. The abandonment of such State-aid road by the State Highway Board, even if it has the authority so to do, will not authorize the county authorities to apply such funds to the building and maintenance of a new county-site [326] road which that board may determine to establish, or to a relocated road when such relocation involves such material changes in the old road as amount to an abandonment thereof. In view of what we have said, it becomes unnecessary to determine whether the State Highway Board, after taking over an interconnecting county-site road, and after having designated it as a State-aid road, and having thus relieved the county from the duty of maintaining such highway, can, by its power to resurvey and relocate such highways, make such changes in existing county-site routes as amount virtually to their: abandonment. This is a question of serious importance; but as it is not necessary to decide it in order to properly dispose of the case in hand, we do not undertake to pass upon it. In view of the rulings set out in the first and second divisions of this opinion, we think the court did not err in overruling the demurrer to the petition, but did err in not granting the interlocutory injunction sought by the plaintiffs. Judgment reversed on the main hill of exceptions, and affirmed on the cross-hill. All the Justices concur, except Russell, C. J., and Atkinson, J., who dissent.