State ex rel. Scott v. State Highway Commission

[438] The opinion of the court was delivered by Dawson, J.: The state invokes mandamus to compel the state highway commission to proceed in conjunction with the board of county commissioners of Dickinson county to let contracts to complete certain improvements heretofore authorized on a state highway in Dickinson county. The material facts set out in the application for the writ, and which are conceded to be true by defendant’s motion to quash, are these: Some three years ago the board of county commissioners of Dickinson county, in conjunction with the state highway commission and with the approval of the proper federal authorities, designated one of the principal public roads running south from Abilene to the county line as a state highway. The road has heretofore borne the name of the “Sunshine Trail” and its official designation is now state highway No. 15. The state highway commission adopted a resolution that this highway should be improved with federal aid, and projects to that end were perfected and termed projects No. 370A and No. 370B. In furtherance thereof the Dickinson county commissioners employed civil engineers at a cost of $4,000 to prepare plans and specifications for the proper construction of the road. Under these plans and specifications the road was field checked and approved by the highway commission. In further pursuit of this undertaking and in conformity therewith the Dickinson county board purchased five feet of land on both sides of the road to give it the requisite width of. 60 feet. This cost $2,500. Other land required to conform to the engineering plans cost $500. Hedges were uprooted at a cost of $6,400. These necessary expenditures have already exceeded $17,000; and in addition thereto certain abutting landowners, in reliance upon the official proceedings for the improvement of the road, have permitted their trees to be cut down to widen the road without charge to the county, but such parties will have a just and heavy bill for compensation for their trees if the road improvement .is not prosecuted to a conclusion as officially determined. Other allegations of plaintiff’s application for the writ show that the requisite funds are available to warrant the letting of contracts to complete the authorized improvements of the highway, and that [439] the Dickinson county board are and for some months past have been ready to let the contract for the completion of the road. But the defendant, the state highway commission, declines to give its assent thereto and declines to cooperate with the county board in any manner toward the prosecution and completion of the improvement to which it has unreservedly committed itself. On plaintiff’s application, based upon the foregoing allegations of fact, an alternative writ of mandamus was issued to the state highway commission. That body makes response by filing a motion to quash the writ on the ground that the facts alleged do not constitute a cause of action. The question of law thus raised has been briefed by the parties, and the cause has been argued and submitted for determination. The prosecution contends that all the discretionary matters concerning the improvement of this road have already been determined by the cooperative and conjunctive action, sanction, and approval of the county board, the state board, and the federal authority, and that nothing remains but the ministerial or administrative duty of letting the contract for carrying to complete fruition what all these official functionaries have already determined to do. On the other hand, the state highway commission contends that, notwithstanding its earlier action approving this road improvement and all that it has hitherto done for that purpose, the matter still continues to be one wholly within its discretion, and that it has discretionary power to refrain from carrying to completion this road project to which it has given its sanction and approval. A majority of this court espouse this view of the powers of the state highway commission. The court notes particularly the absence of any pleading which fairly or impliedly charges the state highway commission with arbitrariness, abuse of discretion or bad faith; and the court therefore feels bound to give to the commission the benefit of the usual rule of law that official duty or official conduct is always presumed to have been rightfully discharged, and that the commission may have had excellent reasons for not going ahead with the road projects concerned herein. The motion to quash is sustained and the cause is dismissed.