Dudley v. Blountsville & Windsor Turnpike Co.

Pettit, J. The appellee petitioned the board of commissioners of Randolph county for leave to construct its turnpike over, on, and along a certain public highway in that county, under section 4, I G. & H. 475. The appellants appeared before the board, and filed a remonstrance against granting the prayer of the petition. The board, after hearing evidence, refused to consent that the highway might be used by the company for the construction of its turnpike. The appellee appealed to the court of common pleas, in which court the appellants moved to dismiss the appeal for want of jurisdiction, there being no appeal from the exercise of a mere discretion vested in the board. This motion was overruled, and exception taken. There was a trial, and judgment for the company, giving it the right to use the highway for the construction of its turnpike, notwithstanding the refusal of the board of commissioners. The overruling of the motion to dismiss the appeal is assigned for error. We hold that the section above referred to vests a mere discretion in the board of commissioners, that no other body, court, or tribunal can exercise, control, or direct; and from the exercise of -which, either way, no appeal lies to any court. The language of the law, and the nature of the case, alike warrant this conclusion. The judgment is reversed, at the costs of the appellee, with instructions to the court to dismiss the appeal for want of jurisdiction.