Haws v. County Court of Wayne County

Ritz, Judge: Upon tbe petition of tbe requisite number of citizens and taxpayers tbe County Court of Wayne County submitted to tbe voters of that county tbe question of tbe issuance and sale of one million dollars of bonds for tbe purpose of constructing and improving tbe public roads. In tbe petition praying for tbe submission' of tbe question a number of roads were specified, to tbe, improvement and construction of wbicb tbe money was to be applied in tbe event of a favorable issue of tbe election, and this petition was set out at length in tbe order submitting the question to tbe voters. At the election tbe requisite majority of 'the votes oast were in favor of tbe issuance of said bonds, and they were accordingly issued and sold. Among tbe roads specified in tbe order was a road from Kenova to Wayne, tbe, county seat of the county. Tbe plaintiffs in this case contend that the county court is attempting to divert tbe fund appro [652] priated. for the purpose of improving and constructing this road from the location specified in the order to a different location, and upon their bill a temporary injunction was granted inhibiting the county court from expending the money for the construction and improvement of the road upon the location selected by it. This injunction, on the motion of the county court, was dissolved, and this" appeal is prosecuted from that order. The road about which the controversy arises is described in the petition and order as, “A road beginning at Kenova, thence up Twelve Pole via Lavalette to "Wayne, county seat of Wayne County.” It appears that the, county of Wayne borders on the Ohio River for a distance of about 7% miles, and that the western boundary of this county is the Big Sandy River: that Twelve Pole River extends practically through the center of the county, emptying into the Ohio River just above Ceredo. The town of Kenova is located upon the Ohio and Big Sandy Rivers, and the town of Ceredo just to the east of the town of Kenova, the western corporate line of the town of Ceredo and the eastern corporate line of the town of Kenova being a common line. Twelve Pole River does not actually touch the corporate limits of the town of Kenova, but runs within one mile thereof. At this point there is a bridge across Twelve Polo connecting what is called the, Piedmont Road, one of the highways of said county extending from the Cabell county line to the town of Ceredo, with the public streets of that town, and the town of Kenova is reached from this bridge over the. paved streets of the town of Ceredo. The contention of the plaintiffs is that the road intended to be improved by this bond issue, is the road extending from Kenova through Ceredo and up Twelve Pole to Wayne. It is shown that there is also another road leading from Kenova to Wayne. This road extends up what is called Happy Hollow; thence along Sweet Run and.Dock’s Creek; thence over on to Buffalo Creek, a tributary of Twelve Pole, and down that creek to its mouth, reaching Twelve Pole at the town of Bunleith, seven and one-half miles from the town of Kenova. It is the location of the road between these points, Dunle,ith and Kenova, that is in dispute. From Dun-leith to Wayne there is no controversy about its correct location. The county court found that the description contained [653] in the order submitting the question to the voters was so ambiguous that it would apply equally to either of the locations above referred to, and this being true that it was its duty to select the location upon which the road should be- constructed. It thereupon selected the road leading out of Kenova up Happy Hollow and reaching Twelve Pole via Sweet Run, Dock’s Creek and Buffalo Creek, while the plaintiffs, as before stated, contend that the road described in the order is the one leading up Twelve Pole. It may be observed that the Happy Hollow road selected by the county court is one of the well known roads of the county, and that the waters of Sweet Run and Dock’s Cre,ek are not Twelve Pole waters, but waters of the Big Sandy, and the road upon this location does not even reach tributary waters of Twelve Pole until it crosses over on to Buffalo Creek, a short distance from the, mouth of that creek at Dunleith. The right of the voters to limit the county court or other authorities in the expenditure of money granted by the issuance of bonds is not questioned, and we have heretofore held that when the voters do in the grant of such money specify the purpose to which the same is to be applied, no administrative authority will be permitted to apply it to any other purpose. Lawson v. County Court, 80 W. Va. 612; Hamer v. County Court, 80 W. Va. 626. The only question involved here is the proper construction of the language used in the grant by the people. The plaintiffs, of course, contend that when the people voted money to build a road from Kenova up Twelve Pole to Wayne the plain meaning is that this road should reach Twelve Pole by the most direct and shortest practicable route, and that the language used will not permit the expenditure of the money for the construction of a road from Kenova for a considerable distance over wate,rs tributary to the Big Sandy, and not reaching the stream designated in the order until a distance of 71/2 miles has been covered. And it occurs to us that this contention is sound. It must be borne in mind that the road by way of Happy Hollow, which the County Court now seeks to improve with this money, was a well known road over streams whose names were well known ,to the people of the community and the county court, and the fact that none of these streams are mentioned in the [654] order is significant that there was no intention that their waters should be traversed before reaching Twelve Pole. Por the purpose of thei expenditure of this money it may be said that Twelve Pole is practically at the town of Kenova. The streets of Ken-ova are improved and paved, likewise the .streets of Ceredo, so that Twelve, Pole can be-reached from Kenova over paved city streets. Unless there is some other controlling factor it would seem clear that when the voters granted this money for the purpose of constructing the road from Ke,nova up Twelve Pole to Wayne it was a plain direction for those charged with the expenditure of the money to extend the road from Kenova to Twelve Pole by the, nearest and most direct practicable route, and when that stream is reached to improve the road along the same. It would require a stretch of the imagination to say that the voters could have contemplated that a road constructed up Happy Hollow, down Sweet Run, up Dock’s Creek, across the hill separating the Twelve Pole and Pig Sandy watersheds, and down Buffalo Creek, a distance of 7% miles, was a road up Twelve Pole. It seems that these streams were as well known as Twelve Pole itself, and the defendant says that this Happy Hollow road was known by that designation, and was one of the frequently-used roads of the county, and notwithstanding this none of these streams are mentioned in the order. We cannot construe this order as warranting the action of the county court in appropriating any part of this fund to the improvement of the Happy Hollow road. Clearly it was its duty in applying the fund -to improve a road from Kenova up Twelve Pole, reaching the same at the nearest practicable point from Kenova, and not at the most distant point. There is another thing in the order upon which the, people voted, which renders this conclusion irresistible, and that is that the order provides for a road from Dunleith up Buffalo Creek in addition to the road here referred to. If the construction of the county court is correct, then the voters did the anomalous thing of providing for the road here In question, a Class A road down Buffalo Creek to-Dunleith, and for a Class B road up Buffalo Creek from Dunleith. We cannot assume that they ever intended to do such a thing as this, and the fact that this latter provision is made in the order is, to say the [655] least, very strong evidence that the construction placed the,reon by the plaintiffs is the proper one. We will, therefore, reverse the de,cree of the Circuit Court of Wayne County, reinstate the temporary injunction, and remand the cause. Reversed, injunction reinstated, remanded^