Trippeer v. Couch

BROWN, J. The petitioners and appellants complain that the County Court refuses to construct a paved road from Island City to The Cove, in Union County. As a result of such refusal, they caused an alternative writ to issue, commanding defendants to show cause why a permanent road has not been con — 454 — structed between tbe named points and paved “with concrete, asphalt, bitulithic or some similar hard surface pavement. ’ ’ In the case of James et al. v. City of Newberg et al., 101 Or. 616, 622 (201 Pac. 212), we quoted the following definition of “pavement” from 9 Nelson’s Encyclopedia: “ ‘Pavement’ is a hard covering of the surface of a road or footway commonly composed of macadam, granite blocks, brick, sheet, or block, asphalt or wood for vehicular traffic, and blue flagstones, cement or tar * * .” Likewise, we quoted from The New International Encyclopedia, Volume 15, page 464: “ ‘Pavement.’ This term, in its broader sense, includes any firm, hard covering for areas subjected to the wear and tear of human feet or of hoofs and wheels, designed to keep the feet or wheels from the ground or earth, and to present a more or less dry, durable, and smooth surface.” The petitioners assert that a macadam road is not a permanent highway, within the meaning of Chapter 103, Laws of 1913. “ ‘Macadamization.’ The process of laying carriage-roads, according to the system of John Loudon Macadam, a Scottish engineer (1756-1836) who carried it out very extensively in England. In the common process, the top soil of the roadway is removed to the depth of 14 inches. Coarse cracked stone is then laid in, to a depth of 7 inches, and the interstices and surface-depressions are filled with fine cracked stones. Over these as a bed is placed a layer 7 inches deep of road-metal or broken stone, of which no piece is larger than 2% inches in diameter. This is rolled down with heavy steam or horse-rollers, and the top is finished with stone crushed to dust and — 455 — rolled smooth.” The Century Dictionary and Encyclopedia. “Permanent,” as used in the statute, is not equivalent to “perpetual.” If the County Court were compelled to build a road between the points named that would last forever, the amount of funds on hand would be clearly insufficient. We take the following excerpt from the American Encyclopedia, which illustrates the life of roads even when constructed with extraordinary efforts to attain durability: “Herodotus tells us that in Egypt a ‘Great King’ built a magnificent road across the sands for the transportation of the materials for the ‘Great Pyramid,’ employing for this purpose one hundred thousand men for a period of ten years. This road, ten feet thick in places, was built of massive stone blocks * * . Traces of what may 'be a part of this road are found near the ‘Great Pyramid,’ probably the oldest authentic remains of a road surfaced with stone * * . Early historians speak of wonderful roads radiating from Babylon, on or before 2000 B. C. * * . The ancient Persians, Assyrians, Carthaginians, Chinese and Peruvians were all great road builder's. Their works, however, have all passed into decay, and the records of their achievements lost or largely forgotten. ‘ ‘ The* Eomans are the first systematic road builders of which we have definite knowledge. * * The construction of the main Eoman roads was extremely massive, consisting of four courses having a total thickness of about three feet, and generally a width of from sixteen to thirty-two feet or more * * . With the fall of the Eoman Empire, its magnificent system of roads began to decay, and, as a result of the following thousand years of neglect, ceased to exist. Not until about the close of the middle ages did 'road building begin to revive, and then not in Italy, but in England and Prance.” — 456 — However, it is unnecessary to look backward through ancient history to determine that the word “permanent,” as used in our road laws, is a relative term. The term, “permanent roads,” has a well-defined meaning' in the jurisprudence of Oregon. In the ease of Stoppenback v. Multnomah County, 71 Or. 493, 499, 500 (142 Pac. 832), that term, as used in Article XI, Section 10, of the Constitution, and in the statute (Chap. 103, Laws 1913), was thus defined: “ * * A public bridge being thus a part of a road which the structure makes passable, such span and approaches are permanent, within the meaning of the Constitution of Oreg’on, when they are put up with the intention that they shall remain at least until they are rendered useless by decay, or injured or destroyed by natural causes. The bridge proposed to be built is undoubtedly a part of a permanent road.” In Lowell v. French, 6 Cush. (Mass.) 224, it was said: “In a strict sense, no sidewalk is permanent, and all are temporary. But we are of opinion that a sidewalk need not be made of stone or bricks in order to be ‘permanent,’ in contradistinction to ‘temporary,’ within the meaning of the charter. A wooden sidewalk which lasts eleven years, and for which an assessment is collected of the owners of adjoining buildings, who are liable to be assessed only for a permanent one, must be regarded as permanent.” “An elevated roadway constructed in a street, partly on posts resting on mudsills and partly on piles, the posts and piles being surmounted with capping or stringers and the whole overlaid with planks, constitutes a ‘permanent improvement’ for which an assessment may be levied against the benefited property. * * Knickerbocker Co. v. City of Seattle, 69 Wash. 336 (124 Pac. 920, 922); Id., 69 — 457 — Wash. 365 (124 Pac. 922, 923). 3 Words & Phrases (2 Series), 970, 971, 972. “In common nse, the term [permanent] does not mean forever or lasting.”. 22 Am. & Eng. Ency. of Law (2 ed.), 698. In this state the practical construction placed upon the term “permanent roads” includes macadam highways. Pre-election statements seem to he largely responsible for this litigation. However, the outgoing members of the County Court could not, by unofficial utterances, bind the hands of the present officials constituting the County Court. The County Court is a court of record and speaks through its journal. The present County Court of Union County could not escape, if it would, the responsibility of selecting the type of road to be constructed from Island City to The Cove. It is a duty the law places upon the court. The electors provide the funds, but the court plans and constructs the road. The title of the act itself provides the purposes of the election held under the provisions of Chapter 103. The title reads: “ * * To authorize the several counties of the State of Oregon to hold special elections for the purpose of submitting to the voters of the county the question of the issuance of bonds and warrants * * .” The body of the act is in line with the title. It will be seen that the election was not held for the purpose of determining the kind or character of permanent road to be constructed, but that the people voted upon the question as to whether or not they should empower the County Court to issue bonds and warrants for the purpose of building and maintaining a permanent highway. Section 13 of the act provides: — 458 — “All moneys raised under the provisions of this act shall be used in constructing permanent public roads in that county, which roads shall be constructed by the county court under its exclusive jurisdiction and such expert assistance as they may employ.” Section 24 reads: “The County Court shall prepare plans and specifications of said road, and shall invite bids in conformity to such plans and specifications, and may also receive and consider any and all bids in conformity to any plans and specifications furnished by any individual, firm, or corporation offering to bid on such road. The County Court shall have power to reject any and all bids.” The petition filed with the court was drawn in accordance with the provisions of the statute, and requested the County Court of Union County to call a special election for the purpose of submitting to the voters of that county the question of issuing bonds to provide for the construction of permanent roads in the county. The petition is in harmony with the title and the body of the act. Also, note the language of the election notice: “ * * to determine whether the County Court shall issue bonds of said county to provide for permanent road construction, to the amount of-Dollars, to mature in-years, no more than - Dollars to be issued in any one year, and to bear interest at the rate of-per cent per annum, and the funds so raised shall be expended in building permanent roads * * .” Section 6, Chap. 103, Laws 1913. The writ of mandamus may be used for the purpose of compelling an officer or the County Court to exercise the discretion vested in him or it; but we have no power to determine how such officer or court shall exercise such discretion: 2 Bailey on — 459 — Habeas Corpus, Mandamus, § 209. This court may compel the County Court to proceed to act, when it neglects to perform a legal duty. Such is a well-established principle of law. But it is a rule equally familiar that this court is not empowered to compel the County Court to determine a matter in any other way than according to the dictates of its judgment: United States v. Lawrence, 3 Dall. (U. S.) 42 (1 L. Ed. 502); Ex parte Hoyt, 13 Pet. (U. S.) 279 (star page), (10 L. Ed. 161, see, also, Rose’s U. S. Notes). The writ of mandamus may be issued— “to any inferior court, corporation, board, officer or person, to compel the performance of an act which the law specially enjoins, as a. duty resulting from. an office, trust or station; but though the writ may require such court, corporation, board, officer or person to exercise its or his judgment, or proceed to the discharge of any of its or his functions, it shall not control judicial discretion.” Section 613, Or. L. A text-writer wrote that— “It will be observed that there is an important distinction between the writ as directed to inferior courts, and where the writ is directed to officers or bodies clothed simply with the exercise of ministerial functions. In the former, the mandate is simply to proceed within its acknowledged powers, without direction as to the particular judgment it shall render, or the manner in which it shall proceed; while in the latter the mandate is to do some particular act or proceed in the manner directed. This distinction is important and should always be kept in mind, otherwise a party may be misled.” 2 Bailey on Habeas Corpus, Mandamus, § 209. In the case of Croasman v. Kincaid, 31 Or. 445 (49 Pac. 764), this court, through Mr. Justice Wolverton, wrote: 0 — 460 — íí # * y\rhen the duty is one which necessarily involves the exercise of discretion and judgment, * * mandamus will not lie to direct or control the decision or determination of the functionary to whom the discharge of such duty is confided; and this is so because it is the discretion and judgment of that functionary, not that of the court, which is to be exercised. But, while courts will not direct and control discretion and judgment, they will require its exercise, not with a view to any particular result, but that the officer shall proceed in the discharge of his duty, and determine matters proper for his cognizance and declare, according to his own judgment, the result of his consideration: Miller v. County Court, 34 W. Va. 285 (12 S. E. 702); State v. Oliver, 116 Mo. 188 (22 S. W. 637); Wailes v. Smith, 76 Md. 469 (25 Atl. 922); Burton v. Furman, 115 N. C. 166 (20 S. E. 443); State v. Boyle, 38 Wis. 92; People v. Board of Supervisors, 26 Barb. (N. Y.) 118; Dechert v. Commonwealth, 113 Pa. 229 (6 Atl. 229); * * Spelling on Extraordinary Belief, §1459.” This case was followed in Irwin v. Kincaid, 31 Or. 478 (49 Pac. 765), which involved a claim for printing blank assessment-rolls. The claim was presented to the Secretary of State, and it was sought to require him to 'audit and allow and draw his warrant upon the treasurer for the sum of $221.50, the amount asserted to be due the plaintiff. While holding that it was the duty of the Secretary of State to examine and determine the claim and draw his warrant therefor as by law provided, the court said:' “But the act required is one involving the exercise of discretion and judgment. He must satisfy himself touching the quality of the work and materials furnished, and determine upon the reasonableness of the charge, or whether in accord with the contract, if any. The writ of mandamus can therefore only require that he act in the premises, not direct how or to what effect he shall act.” — 461 — The record does not disclose error because of the court’s ruling on a question relating to “what was understood by the use of the word ‘permanent,’ as used in the petition.” It follows that the judgment of the lower court is affirmed. Affirmed. Rehearing Denied. Mr. Justice Burnett did not participate in the consideration of this case.