The Birmingham age-herald., 1924-06-20
Ruling Says Road Board Exclusively Entitled To
 Select Routes
CHAIRMAN ROGERS
 GIVEN CLEAN BILL
Temporary Injunction Se- cured By Boligee Citi-
 zens Is Dissolved
tstats Capital Bureau. ]


 The state highway commission has legal right to detour the Eutaw- Livingston highway via Gainesville, home town of Chairman John A. Rogers, according to a decision by the supreme court today. The court affirmed the decision of Judge Leon McCord, Montgomery circuit judge, in dissolving the temporary injunc- tion obtained by citizens of Greene and Sumter counties against build ing the Gainesville detour. The supreme court held that the high way commission act of 1923 is con- stitutional and that the power to locate roads is vested in the discre- tion of the highway commission whose acts, when free from fraud or corruption, cannot be reviewed by courts. The case was decided in favor of the highway commission at all points.
 With reference to the personal in- terest claimed to have influenced Chair man John Rogers, owing to his pos session of large tracts of land on or within a few miles of the highway the supreme court held that members of tho highway board are not affected by the common law principles governing the qualifications of judges and judicial officers.
 Commission Gets o. K.
 In the attack by complianants on the constitutionality of the highway act, it was claimed that the old highway commission of 12 members was referred to in the highway bond act in such q way as to be adopted into and become q part of the constitution and that the legislature had no power to abolish the old constitution and replace it with one Of three members as was done in 1923.
 On this subject the supreme court said sls. ,as-ss~5 gsS
 We cannot assent to the hroposition that by the adoption of this amend. ment the state highway commission as then constituted became constitutional body above and beyond the power of the legislature to change. The legis- lature has simply decreed that three commissioners can better execute the purposes of the amendment than a commission of 12. It is not for the court to question the wisdom of that decree or to undertake a limitation upon the legislative power, which, ac- cording to an unbroken line of decisions is supreme in the absence of express inhibitations."
 Relative to the charge of corrupt agreement between Chairman John A. Rogers and Commissioner J. F. Suttle in determining upon the Gainesville To- cation, the supreme court said: Ut will suffice to say of this charge that there is no evidence to sustain.
 Rogers ExOnerated
 As to the personal interest of Chair man Rogers, due to his ownership of property on or near the road, the court said: This, we think, is not the in- direct interest prohibited by the act. It might in some circumstances consti- ute an interest in the location of high way but not an interest direct or in direct in a contract for its construction or maintenance within the meaning of the act"
 It was further held that the highway commission is not a court exercising judicial functions, but an adminstra- tive board exercising also some dele gable legislative functions and that members of the commission are not af- fected by the common law principles which govern the qualifications of judges and judicial officers.
 As to the rght of the commission to locate roads the supreme court said {: The location of such highways is not function of the courts. In that mat ter the commission as we have before said in substance, exercises an adminis- l trative and quasi legislative function which, when free from fraud or corrup- tion, cannot be reviewed by the courts.
 Reference was made to the claims of complainants that the people had been led to believe by stump speakers, news papers and others that the highway bond issue money would be spent only when matched with considerable aid. We presume rather that the people in adopting the amendment acted intelli- gently and if so, they say that it con- tained no clause or word holding out the promise that the states money would be expended only when matched by money from the federal treasury" the opinion stated.
 Highway Act Upheld
 The claim of complainant that the title of the highway act of 1923 was de- fective also not sustained by the su- preme court. As to the location, the road in question via Gainesville in stead of by the more direct route via Boligee, the supreme court said ''On the proof submitted we think it is impossible to affirm that the route selected is not the most feasible practicable-having due regard to the public welfare"
 Justice Sayre wrote the opinion of the court, concurred in by Chief Justice Anderson, and Justice Gardner and Miller.
 This suit thus decided originated in Jefferson circuit court, where a tenn porary injunction was obtained against the Gainesville location. This was dis solved by Judge Leon McCOrd after hearing in Montgomery circuit court The injunction was later reinstated by Judge McCord pending decision of the