CHARLESTON.

#### State *ex rel.*S. L. Barber *et al. v.*County Court Jackson County.

(No. 5558)

Submitted October 27, 1925.

Decided November 3, 1925.

Abatement and *Revival*— In *Mandamus to Require County Court to Put Road in Repair, it is Sufficient Answer That Court is Proceeding to Hear and Determine Matters Arising on Petition of Citizens to Discontinue Road.*

It is sufficient answer to an alternative writ of mandamus, commanding the county court of a county to put in good repair and condition for public travel a public road in said *297county, that a petition by citizens of the county in which said road is located has been filed with the county court, under the provision of chapter 43, section 136, Code, asking that ■said road he discontinued, and that said court is proceeding according to law to hear and determine the matters ■ arising on such petition.

(Abatement and Revival, 1 C. J. § 87; Mandamus, 38 C. J. § 45.)

(Note : Parenthetical references by Editors, C. J. — Cyc. Not part of syllabi.)

Original application by the State, on tbe relation of S. L. Barber and others, for mandamus to be directed to the County Court of Jackson County.

*Writ denied.*

*Lewis H. Miller*and *J. L. Wolfe,*for relators.

*W. F. Boggess,*for respondent.

“Woods, Judge:

This is an original application to this court by S. L. Barber, A. A. Barber, Laura Stone, Julius Donahue and Rachel Kessel, citizens of Jackson county, for a writ to compel the county court of Jackson county, to repair and keep open for travel, a certain county-district road, known as the Mill Creek and Ripley Landing road extending from the residence of one A. G. Taylor to the east end of the concrete bridge at Cottageville, in' Jackson county.

Relators aver in their petition that the said road was legally ■established many years ago, and used as such by the public until about three years ago, when the county court ceased to work it and expend the public monies for its upkeep, with the result that it has been permitted to fall into a bad state of repair and a portion thereof is wholly impassable for public travel thereon; that it is the outlet for the relators from their homes to school, church and the county seat; that it has not been annulled or discontinued according to law; and that the county court with full knowledge of its bad condition of repair, fails and refuses to perform the duty east upon it by law of keeping the said road open, free from obstructions, passable and fit for travel. An alternative writ was awarded *298upon tliis petition, commanding the county court to at once put said road in repair and condition for public travel, or appear and show cause, if any it can, why it refuses to do so.

The respondent, comity court, answered to the effect: (1) that the section of road set out in the writ was abandoned upon the locating and grading of State Highway Route No. 5; (2) that a part of said abandoned road has not been used or traveled by the public for three years; that a part of the same is located in very low and marshy land, now overgrown with marsh weeds and strewn with driftwood, and that it had been impassable a great deal of the time since its location; and, that it would require large sums of money for its. upkeep; (3) that respondent has expended large sums of money on that part of said road from the Barbers down to the east end of the concrete bridge at Cottageville, to provide them an outlet, and that same is in good repair; (4) that on the 5th day of October, 1925, A. G. Taylor, and eighteen other citizens, residents and taxpayers of Union district, Jackson county, presented their petition in writing to the said county court praying a discontinuance of that part of Mill Creek and Ripley Landing public road beginning at the eastern line of lands of S. L. Barber (one of relators) on said road and running thence up Mill Creek the entire distance of said public road which ends near to the residence of said A. G. Taylor, averring in said petition, as a reason for such action, that it would be impossible to maintain a public road on such location that would be of any practical benefit to the public. The court ordered the petition to be filed and directed issuance, publication and posting of the notices required by Section 136, Chapter 43, Code, and the further consideration of the matters arising on said petition was, by order duly entered on the record, continued until the maturity of said notice, to be heard and determined in manner and form provided by statute.

The averments in the petition and the answer thereto, were supported by divers affidavits.

As this court has before held, the duty of a county court to keep and maintain a highway in a proper state of repair, may be enforced by mandamus. *State ex rel Robinson*v. *299
      *Board of Commissioners,*82 W. Va. 724. While the performance of this duty will be compelled, the character of the repairs that shall be made is left with the discretion of the governing bodies. As to whether the part of the road between tlie home of the relators, Barbers, and the concrete bridge at Cottageville, is out of repair, the evidence is conflicting — about evenly balanced. The relators have the laboring oar. All are agreed as to the other part of the road being impassable. However, we are met with the fact that proceedings are now pending in the proper forum to determine whether or not that part of the road in question here shall be discontinued. This action was set in motion by citizens and taxpayers of the same district in which the road is located. Code, Chapter 43, Section 136, provides: “The county court of the county may, upon petition, direct that any county-district road, * * * * be discontinued, but notice of such petition must be published according to the provisions of this act, and in addition, notices must be placed at three public places in every district in which any part of said road or landing may be. • Upon such petition, after notice given as aforesaid, the county court shall appoint two or more viewers or a committee of their own body, who, together with the county road engineer, shall view such road or landing and report in writing whether, in their, opinion, any, and if so, what inconvenience would result from discontinuing the same. Upon such report and other evidence, if any, the court may discontinue the road, * * * * taking care in case of an established post road, not to discontinue the same until another .has been established.” Under this section the legislative purpose was and is to confer upon the county eourt a quasi judicial power and discretion to discontinue any road under its control. This discretion is one to be exercised in the interest of the public. The Legislature rightly assumed that no county court would discontinue a road under such conditions as to ..prejudice the public or to put the people to inconvenience. This discretion may not be controlled by prohibition. *Armstrong*v. *County Court,*54 W. Va. 502. Nor by mandamus. *State*v. *Board,*85 W. Va. 739. In *State*v. *County Court,*33 W. Va. 589, Judge Snyder in delivering *300the opinion of the court, said: ‘ ‘ It is a well established rule both in mandamus and prohibition, that neither will lie where another specific and adequate remedy exists nor to correct the errors of inferior courts in matters properly within their jurisdiction. ’ ’ Where the matter is clearly within the jurisdiction of the inferior court a mere error in the proceeding may be grounds for appeal and review.

We 'hold that the pendency of the proceeding before the county court for the discontinuance of the highway is a sufficient answer to the writ, although it was instituted subsequently to the service of the alternative writ. *People*v. *Commissioners,*1 Thompson & C. (N. Y.) 193. The writ is in the nature of an order to show cause, and any cause which exists at the time fixed for showing cause is available as an answer to the command of the writ. Even if the issuing and service of the writ is to be considered the commencement of an action, still, a fact occurring after the service of the writ, may be set up in the return as a defense, as in an action at law. “If any matter of defense has arisen after an issue of fact has been joined, or after joinder in demurrer, it may be pleaded by the defendant.” 1 Chitty’s PL 696. We are therefore of opinion to deny the writ in this case.

*Writ denied.*