Wright v. Edwards Hotel & City R. R.

McLean, J., delivered the opinion of the court. The appellee and its predecessors operated a street railroad in the city of Jackson, having first obtained a franchise from the city. It also obtained a franchise from the board of supervisors of Hinds county, authorizing it to extend its line on the public road in the county. The railway company .built its track out West Capitol street as far as a point known as Battle Hill, and after-wards' the line was extended to where the Old Ladies ’ Home is now located. Afterwards, in the year 1903, a suburban park, known as Livingston Park, was opened up, and a pavilion where vaudeville performances were conducted was erected in said park. This park was about three hundred and fifty feet west of the western terminus of the street car line. The owners of this park, conceiving it to be to their interest to have the car line extended out to a point immediately in front of its pavilion, induced the railway company to extend its line to that point. The owners of the park were to furnish the steel rails, and the street railway company was to furnish the other materials and to construct the line, which was done. Prior to January, 1909, the lease on the Livingston Park expired, the pavilion was torn down, and the park discontinued. Thereupon the lessees of the park demanded of the street railway that it [477] purchase the steel rails which had been furnished by the park company, or pay rent on the same for the use thereof. The railway company declined to do either, and •discontinued running its cars out from the Old Ladies’ Home to this park, which is a distance of about three hundred and fifty feet. The appellants, being property owners near the Livingston Park entrance, were thereby deprived of the car service for this distance of about three hundred and fifty feet; and thereupon, on the second day of August, 1909, the appellants filed a petition for a writ of mandamus, praying the judgment of the court for a writ of mandamus to require the railroad company to continue to operate its cars to the point at the end of the line opposite Livingston Park. While this suit was pending, and before it came to trial, the board of supervisors, at the regular September term, 1909, made an order to the effect that: “It appearing to the board that for a distance of about three hundred and fifty feet beyond the present terminus of the street railway line, in front of the Old Ladies’ Home, a railroad track was constructed for the benefit of the Livingston Park Company, said track being built, as is show by the recent survey of the public road, partly upon the public highway and partly upon the lands belonging to S. Livingston, the fine between the lands of the said S. Livingston and the public road being located at or near the center of the said track, and it further appearing to the board that said track has been abandoned for the purposes for which it was constructed, and is no longer used to run cars upon, and is an impediment and obstruction to the public highway, and interferes with the proper drainage of the road, it is now ordered that the said track be taken up and removed from the public road, from a point at the entrance of what is known as Livingston Park, for a distance of about three hundred and fifty feet, to the point in front of the Old Ladies ’ Home, where the street cars are now [478] stopping. It is further ordered that Joe Lewis, sergeant of the county convict camp, he and is hereby directed to take up and remove said track as an obstruction to the highway.” On a subsequent day of the same term the appellants in this case presented their petition to the board of supervisors, praying the board to vacate its order theretofore made, and, this petition coming on to he heard, it was rejected and refused by the board. These petitioners did not appeal from this order, but the order of the hoard stands in full force and effect. The petition for the mandamus coming on to be heard, and tried by agreement before the circuit judge, it was adjudged that the petitioners were not entitled to the relief prayed for, and the petition was denied, and the suit dismissed, and from that judgment an appeal is prosecuted to this court. Upon the very threshold of their case, appellants are met with the proposition that the hoard of supervisors found that the track of the defendant railway company had been abandoned for the purposes for which it had been constructed, and" declared it a nuisance, ordered it to be removed, and in pursuance of said orders the sergeant of the county convict camp removed the said railroad track. The argument of the appellant is that the order of the hoard is void because it was procured through fraud; the evidence of fraud being that the order was passed at the instance of the street railway company, and that consequently the defendant cannot defend under such circumstances. Granting that the order was procured at the instance of the defendant, there can be no question that the appellee had the right to surrender its franchise with the consent of the board that granted the franchise. The hoard has full jurisdiction over the public roads, conferred upon it by the Constitution, and manifestly, in a proceeding like this, the courts have no power to interfere on the sole ground that the action of the board was unwise or not condu [479] cive to the public good, if, indeed, in any proceeding, the courts have this power. Monroe County v. Strong, 78 Miss. 565, 29 South. 530. Suppose that this court should grant the prayer of appellant’s petition, and command the street railway company to restore the track; would not the board of supervisors still have the power to deny to the street railway company the right to lay and maintain its track upon the public roads of the county? Courts will not do a vain thing. Under the proceedings in this case the question as to the power of the board to revoke the franchise and to cause to be torn up the track of the street railway company cannot be raised. This is a mere collateral attack made upon the judgment entered by the board, and if this judgment can be annulled, the fact that the street railway company consented to the order is not sufficient to justify us in holding that the order was void. The granting by the board of supervisors to the railroad company of the privileges or franchises as being grants of vested rights, of which the grantee cannot be deprived at the will of the board, is not involved in this controversy. It may be and doubtless is true, but as to which we express no opinion, that the grant is a vested right, and that the railroad cannot be deprived of it, except by a judicial proceeding, of which it must have due and legal notice. But as the grantee has not and does not complain of the action of the board in ordering the track removed, we are not aware of any principle which will authorize, in a proceeding like this, any court to compel the railroad to rebuild the track and to resume its service. Affirmed.