CHARLESTON.

#### State *ex rel.*Cecil A. Robinson v. The Board of Commissioners of The County of Ohio.

Submitted October 8, 1918.

Decided October 22, 1918.

1. *Highways*— Board *of Commissioners*— Maintenance *of Sighwa/y*— ■ *Statute.*

By reason of the acceptance of the provisions of chapter 10 of the Acts of the legislature of 1890, by the Board of Commissioners of Ohio County, the duty and obligation devolved upon that board to properly maintain that part of the Cumberland road lying within said county of Ohio. (p. 726).

2. *Same*— Maintenance *of Bead*— Extent.

Such duty and obligation extends to the roadway being actually used as tbe Cumberland or National road, even though such actuallv-used roadway may not be upon the exact location originally selected for the said road. (p. 726).

3. *Mandamus*— Duty *' of County Commissioners*— Mamtenanee *of Sighway.*

Where it is the duty of a board of county commissioners to keep and maintain a highway in a proper state of repair, mandamus will lie to compel the performance of this duty. (p. 727).

Certified question from Circuit Court, OMo County.

■ Mandamus by tbe State, on relation of Cecil A. Robinson, against tbe Board of Commissioners of tbe County of Obio. Demurrer to alternative writ overruled, and question certified from tbe circuit court.

*Affirmed.*

*Charles J. Schuek,*for plaintiff.

*David A. McKee and Carl G. Bachmann,*for defendant.

Ritz, Judge:

In tbe early part of tbe last century tbe National Government entered upon a policy of internal improvements, included in which was a national road extending from a point upon tbe Potomac river, near the town of Cumberland, Maryland, to a point west of tbe Ohio river, in the then territory of Indiana. This road was partially constructed and main-*725tamed by tbe National Government at large expense. Before tbe project was entirely completed a school of statesmen came into control of. governmental affairs wbo beleved that the National Government did not possess the power under the Constituton to carry on such works, and that every day this road was maintained and owned by the Government constituted a flagrant violation of the fundamental law. This resulted in 1835 in an Act of Congress making an appropriation to complete the road and put it in good repair, after which it was to be turned over to the several states through which it passed. That part lying in the state of Virginia was accepted by thát state by an act of its legislature. From that time until the formation of the state of West Virginia that part of the road lying in what is now the state of West Virginia was under the control of the Board of Public Works of the state of Virginia. Upon the formation of the state of West Virginia this part of the road became the property of the state of West Virginia, and the control and management of it was placed in the Board of Public Works until the year 1890 when, by an act of the legislature, said road was turned over and ceded to the board of commissioners of Ohio county, in which county it lay, upon condition that said board of commissioners maintain the same and accept the grant thereof by the legislature. Said board, on the 25th day of November, 1891, passed an ordinance accepting the cession of said road so made by the act of 1890, and assuming the máintenanee, care and control of the same. Subsequently, in the year 1917, an act was passed by the legislature definitely locating the road through the city of Wheeling in Ohio county, and defining the duties of the board of county commissioners of Ohio county in regard thereto. So far as it attempted to prescribe the duties to be performed in connection therewith by the board of county commissioners, it did no more than recite the obligation said board took upon itself by the acceptance of the road under the provisions of the act of 1890. The only effect of the act of 1917, if indeed it had any effect at all, was to fix the location of the road upon the ground, it being recited in the act that there was some controversy as to the location of the road, *726. but no controversy as to its actual location upon the ground. It is averred in the alternative writ that at at least one point on the line oí this road in Ohio county the board of county commissioners has allowed it to become in bad repair, that .one of. the retaining walls supporting the same is falling down, and that the same has become dangerous for travel, and that unless immediate attention is given to the repair of it it will become impassible. The purpose of the writ is ’ to compel the board of county commissioners to make the repairs necessary, and to maintain the road in a reasonably safe condition.

It will be observed from the history of this highway, as above stated, that it is on a very different basis from the ordinary county road. It was constructed by the National .Government at a considerable expense, its promotors expecting that it would form a great highway or link connecting the peoples in what was then considered the far west, the Territory of Indiana and the State of Ohio, with those living in the more enlightened eastern states. After its construction settlements were established and grew into considerable towns along almost its entire length, and the subsequent prosperity enjoyed by these thriving commercial cities testifies to the wisdom of the promotors of the project. When the .■National Government, however, abandoned the policy of in'ternal improvements the state of Virginia, so far as the road •lay therein, took upon itself the burden of maintaining it, .with the right to the National Government to use the same ..free of any tolls for such use, and this obligation upon the .formation of the state of West Virginia devolved upon and iwas assumed by that state, until the board of county commissioners of Ohio county, in the year 1891, took upon itself the 'burden of performing this obligation. There can be no doubt ■ that this was within the power of said board. This board :by- thi's1 act received a valuable piece of highway over which .it .had theretofore no jurisdiction. The assumption of the ,'Obligation to maintain the'road, in consideration of this transfer to’-it, "was a'perfectly legitimate' governmental function, and one which it cannot now avoid. The fact that' the part .of this roád which it is complained is out of repair lies with*727in tbe corporate limits of tbe city of Wheeling cannot relieve tbe board of county commissioners of tbe duty voluntarily assumed by it. It may be that because of the fact that tbe road runs through the city of Wheeling the city authorities might, in order to make it still a better road, contribute something to its improvement and maintenance, but the primary obligation to maintain it and keep it in repair is upon the board of county commissioners. It is contended that the act of the legislature of 1917, above referred to, is unconstitutional. Whether this is the case or not makes no difference. The duty and obligation resting upon the board of county commissioners was not fixed nor in any wise affected by the act of 1917, but became absolute by the acceptance by that board of the provisions of the act of 1890 by which this road, with the obligation to maintain it, was taken over by said board. There is some question it seems as to whether or not the road at the present time is on the exact location that it was when established by the National Government. It does not appear, however, that there is any question as to. the actual location of the road on the ground, or at leash, that there is a road located, improved and maintained upon the ground known as the Cumberland road, whether it is-, upon the.exact location established by the National Government when the road was first located or not. It cannot be expected that a highway .of this character will, for more than a hundred years, occupy in all respects the same location that it occupied when first laid out. Slight variations in all probability have been made from time to time, but this fact does not change the obligation of those charged with its maintenance. The road upon such changed location is just as much the Cumberland road as though it was upon the original location selected at the time it was established, and the obligation of those charged with the maintenance and upkeep of the road to maintain it upon the location over which it is actually used, even though this may be in some instances a different location from that originally selected, is the same as though it had never been changed in the slightest degree.

The one remaining question is the propriety of the remedy *728adopted in this ease. As we have before determined, the obligation is upon the board of county commissioners to maintain this road in proper repair, but is mandamus an appropriate remedy to compel the performance of this duty? In Bailey on Habeas Corpus, Mandamus, &e., at p. 1085, it is said: “It being the duty of supervisors of towns in some states, and in others commissioners of highways, to keep and maintain highways in a suitable state of repair, mandamus will lie to compel the performance of this duty, but will not interfere with the discretion of such bodies or officers as to the character of the. repairs that shall be made.” This text seems to be well supported by authority. *Borough of Union-town*v. *The Commonwealth Ex Rel. Beech,*34 Pa. St., 293; *Hammar*v. *The City of Covington,*3 Met. (Ky.) 494; *State Ex Rel. Cutter*v. *Kamman, Trustee,*151 Ind. 407; *The People Ex Rel. Burke*v. *The Mayor and Council of the City of Bloomington,*63 Ill., 207; *Union Drainage District No.*1 v. *O’Reilly,*34 Ill. App. 198; *Perrault*v. *Les Syndics des Chemins A Barrieres de Montreal,*Rap. Jud. Quebec, 9 C. S. 512.

It follows from what we have said that the demurrer to the alternative writ of mandamus was properly overruled, and we answer the question certified accordingly.

*Affirmed.*