Thomas v. Lee County

Mayes, C. J., delivered the opinion of the court. This case is before the court on bill and demurrer. The pleadings and exhibits so thoroughly state the case that we direct the reporter to set forth the pleadings when the case is reported. The suit is a friendly one, instituted for the purpose of testing the validity of chapter 149 of the Acts of 1910, p. 140', and for the further purpose of testing the validity of the proceedings of the board of supervisors in attempting to issue bonds under the authority of the act and for the purposes named therein. We may say in the beginning that the act itself is drawn with exceeding care, and, while numerous causes are assigned for having it declared invalid, none of them have any merit. No clause or section of any Constitution is violated by any provision of the’ act. The questions raised by which it is sought to avoid the act have all been settled time and again by this court, and all that could be gained by a discussion of them here would be to simply repeat the declarations of this court on the same subject, which could not be of any profit. The care which characterized the preparation of the act also characterizes the proceedings of the board in all particulars save one, and this does not in any way affect the validity of the proceedings, or the bonds issued thereunder. Of all the questions propounded to the court, we think only two deserve any discussion, and to these we shall confine ourselves. In the first place, the petitioners, proceeding under section 2 and section 7 .of the act, pray not only for the construction of the highway in district S, the petitioning district, but also prayed that the proceeds of the bonds be used to- extend the roads beyond the district and into others. The board received and approved this petition with its double aspect and gave notice of their intention to issue bonds for the dual [260] purpose prayed for in the petition. Subsequent to this, and after a protest was filed against the bonds, and it became necessary to order an election, the board ignored that feature of the petition which prayed for the extension as provided for in section 7 of the act, and, in ordering the election and giving notice thereof, submitted only the proposition allowed by section 2 of the act; that is, that the bonds should be issued and the proceeds used for the purpose of constructing and maintaining the highway in the third district alone and not for extension. In the face of the petition praying for both, but without any objection from any one, the electors were notified to vote, and did vote on the one proposition only. Appellant contends that the petition containing the dual proposition was the thing which conferred jurisdiction on the board to act, and that the board could only act in accordance with its full prayer. It is the further contention that, when the board ignored the extension feature of the petition and proceeded to issue bonds for one purpose only, it lost all jurisdiction to act in any way, and that the proceedings were void. We thin! this contention is without merit. To begin with, the bonds are issued for the purpose authorized by the act —in fact, the main purpose sought to be accomplished by it. The extension is not the main, but a secondary, right secured by the act. The petition conferred jurisdiction on the board to act in accordance with the powers conferred by the act. After the petition was filed and the notice was published of intention to issue the bonds, all persons in the district were parties to the proceeding and are concluded by the proceeding of the board to which they did not object. At a public meeting, and without objection from any one, the board abandoned the extension feature of the petition, gave notice to this effect by failing to include in it the order and notice of election, and all the district is conclusively presumed to have acquiesced in the action of the board in this particular, since no one objected. No voter was misled in any way. [261] Only one proposition was submitted to be voted on, and only one was voted on. Because the board abandoned the secondary purpose of tbe petition, with the presumed acquiescence of the entire district, its jurisdiction to submit to the electors the main purpose' of the act, complete in itself and not dependent in any way on the abandoned feature, did not in any way affect the jurisdiction. If the-record showed that the qualified electors of the district, both for and against the issuance of the bonds, had appeared before the board after the original petition was filed, and notice of the intention to issue the bonds, published, and protest filed, and asked the board to omit the extension feature of the original petition, it would hardly be contended that this would cause the board to lose jurisdiction in such way as to prevent a submission of the main purpose. What was done was in effect just this. The only other contention we desire to notice is the contention of appellant that section 5 is void because it violates section 170 of the Constitution. The contention is that by virtue of section 170 the board of supervisors are given full jurisdiction over roads, ferries, and bridges; whereas, section 5 of the' act provides for the appointment of three commissioners to construct and supervise the highways. There is a twofold answer to this contention. In the first place, while section 170 confers full jurisdiction, etc., it further provides that this jurisdiction shall be exercised “in accordance with such regulations as the legislature may prescribe. ’ ’ This feature of the act is a regulation prescribed by the legislature and well within the power ’ conferred on the legislature. In the second place, by the terms of the act full jurisdiction is still retained in the board, since the commissioner’s acts and powers are subject to their approval in all respects. The decree of the chancellor sustaining the demurrer is affirmed, and bill dismissed. • Affirmed. Anderson, J., took no part in the decision of the case.