<p>Before Memminger, J., Anderson, March, 1920.</p> <p>Action by John C. Pruitt, J. E. Dobbins, Arthur Rhody, W. C. Bailey and John H. Fox against J.-Mack King, as Supervisor of Anderson County; W. P. Snelgrove et al, as Anderson Highway Commission, and R. H. Wright, to enjoin the use of funds on a certain highway. From an order enjoining defendants, the defendants appeal.</p> <p>The following is the opinion of the Circuit Judge:</p> <p>This case came up before this Court when it was in session in February; and the question was whether the Court would refer issues to a jury, or refer the whole case to a referee, or hear the whole case in open Court, and make its decision upon the oral testimony heard by the Court itself.</p> <p>The Court decided for the last named course, as it believes itself capable of deciding questions of fact in equity cases of this kind, and does not care to dodge that obligation, nor to impose upon the controversy the delay of a reference. Consequently the matter has been heard fully for the past two days, as appears from the stenographic report which has been taken. The controversy is one of great importance, and the Court is glad that it is able to render an immediate decision with confidence.</p> <p>This Court thinks that the highway commission has fallen into an error as to its powers under the act in question, and we catch the secret of the error from the resolutions passed by the commission in reference to the road in question. There it appears that the commission thought that it was their duty to select the most “practicable” route to Williamston, and their subsequent action is based on that idea; whereas, a study of the act shows that the first question for them to determine was what was the “existing route” from Anderson to Williamston. The overwhelmiing weight of evidence shows that that which is referred to as the “upper road,” leading past the Hammond place, was at the time of the passage of the act the “existing route.”</p> <p>This Court accepts the definition of the word “route,” as used in this act, in the light of the facts and circumstances proved in this case, as meaning the customary and predetermined way of travel from the one point to the others. There may be many roads -by which a given point may be reached, but that does not necessarily mean that every such road is the “route.” The “route” means more than a road which may be used to get from one place to another. It means, as used here, the road which is ordinarily referred to and most generally used by the public. And the act distinctly shows in section 11: “The improved roads shall follow as nearly as may be practicable the existing routes of the said roads.”</p> <p>The view taken by this Court, therefore, is that the duty of the commission was to ascertain and determine the existing route between Anderson and Pelzer via Williamston. Piad they done this, there is no doubt but that they must have decided that the upper road was the “existing route” at the time of the passage of the act, as this Court has found from overwhelming and practically undisputed evidence. This fact being settled, it then became their duty not to decide whether or not there was a more practicable route, as they did, but to follow the existing route “as nearly as may be practicable,” which means no substantial departure therefrom. The departure which they made is entire and complete. The Court cannot find from the act that any discretion is left to the commission in respect to this road No. 4.</p> <p>As to some of the other roads, among the 21 named in the act, a discretion is distinctly given; and the well known rule must be applied that the legislature having expressed discretionary powers as to some of the numbers excludes the idea of discretionary powers where not expressed.</p> <p>The selection of the road that- was decided upon by the the commission,' furthermore, involves the clear departure from a terminus. The act requires a road from Anderson to Pelzer via Williamston as a distinct improvement; also, in No. 5, a road from Anderson to Cooley’s Bridge via Neal’s Creek Church (which is the Belton Road) as a distinct and separate improvement. The commission has changed the terminus on the Anderson side of the Williams-ton-Pelzer Road from Anderson to a point on the Belton Road at McCown’s place, two miles from Anderson, thereby bringing together on one stem of two miles all the traffic, both local and through, from Belton and from Pelzer, and making only one terminus in Anderson. This terminus gets into Anderson at a point about a mile distant from the terminus of the upper or ascertained road from Anderson to Pelzer via Williamston. Before entering the city on the Belton Road, it is brought together as a stem also for the Williamston Road and necessitates passage in Anderson over an unpaved street at a different and distant point from where the Williamston Road enters, which latter road enters upon a well paved street.</p> <p>It is well argued by counsel for plaintiff, who brought cases from other States (there being no case from South Carolina upon the point), that if a commission may change a terminus to any extent they may practically eliminate the proposed improvement. There is no charge made nor any evidence but that the commission acted in good faith, and perhaps wisely, from the standpoint from which they viewed the situation, to wit, that they were to select the most practicable road, and this fundamental error has already been pointed out. That was not their responsibility.</p> <p>The purpose of this act was to spend money, economically, of course, but to carry out each of the separate and distinct improvements provided for, and did not leave to the commission a general discretion as to economical roads except where that discretion is specially specified in the act. This commission has no general jurisdiction over roads of Anderson county as a county commissioner has. It is limited to the terms of the act. The scope of the act is wide and separate, and distinct improvements must be made. It is not' for the commission to combine them.</p> <p>The decision of the Court, therefore, is that the plaintiffs have prevailed; and the relief prayed for will be granted, and a formal decree may be taken upon the footing of his opinion.</p> <p>cite: Where statute describes two termini of road, but does not name route, board could choose either one of available routes: 78 S. C. 351; 90 S. E. 167; 2 Jud. 464; 33 Cyc. 114; and need not establish its terminus in any particular part of the city: 13 R. C. L. 52; 37 Cyc. 117, 123; 2E. R. A. (N. S.) 144; 98 N. W. 393 (Mich.) ; 10 Johns (N. Y.) 389; 91 U. S. 343, 348; 23 E. Ed. 428; 86 S. E. 776. Act for public improvements given liberal construction: 2 Lewis Suth. Stat. Const., sec. 682. Work should be enjoined with great caution: 1 High Inj. (4th Ed.) 590; 2 Id., pp. 1324-5. Discretion of local officers: Elliott Roads and Streets, vol. I, pp. 603-4 (3d Ed.) ; Id., vol. II, pp. 719-20.</p> <p>cite: Act in question: 31 Stat. 474. Where termini are named, they are fundamental and not subject to change: 92 S. E. 781 (W. Va.); 58 111. 422; 109 111. 379; 172 111. 415; 50 N. E. 118; 51 N. H. 300; 56 N. H. 332; 29 N. H. 88; 57 Atl. 402; 70 N. J. L. 322; 70 N. J. K. 611; 57 Atl. 130; 14 N. J. R. 385; 125 Minn. 359; 147 N. W. 240; 38 Or. 315; 58 Pac. 36; 25 Wash. 648; 66 Pac. 59; 37 Pa. St. 257; 29 Pa. Sup. Ct. Rep. 179. Right to change route does not include right to change terminus: 36 Wis. 493; 7 W. & P. 6269 ; 83 Ga. 61; 9 S. E. 1106; 23 A. & E. Enc. Raw (2d Ed.) 692. Must follow substantially the route named: 47 Pac. 919; 66 Pac. 59; 39 N. W. 324; 50 N. E. 118; 13 R. C. R. 52; 15 A. & E. Enc. Raw (2d Ed.) 363, 390; 37 Cyc. 116, 117, 118. Relocate means to preserve identity without material change: 37 Cyc. 175, note 77; 189 Mass. 308; 75 N. E. 717.</p>
