Illinois Central Railroad v. Swalm

delivered the opinion of the court.

There is no merit in any of the contentions of the appellant. The objection that the railroad was constructed and put into operation long before the highway was laid out and opened is settled by the case of the I. C. R. R. Co. v. Copiah County, 81 Miss., 685; s. c., 33 So., 502. No objection can bo made to the action of the board of supervisors in establishing this highway, upon the ground of mere irregularities. That would be to permit a collateral attack upon the judgment. No appeal had been taken. The only grounds upon which it is seriously urged that the judg*639ment of tie board of supervisors was absolutely void are: First, that tie order establishing tie highway contained the proviso-“that the petitioners will pay all the expenses Or damages that may be incurred in laying out working, and maintenance of said highway for three yearssecond, that the three commissioners appointed to examine and report upon the highway were all of the district in which the highway was to be constructed. The case of State of N. J., etc., v. The Mayor et al. of Orange, 14 L. R. A., 62, together with the authorities cited in the note, is- conclusive that the addition of this proviso to the order does not affect its validity; such addition was not against public policy.. Neither could it otherwise, if surplusage, affect the validity of the order, perfectly proper in all other respects. This proviso held out no offer of personal advantages to the board of supervisors. The court well says in that case: “It is almost always- necessary, in deciding upon the propriety of a public improvement, to consider, on the one hand, the advantages which are likely to accrue to the public from it, and, on the other hand, the expense and burden which will be imposed by reason of it. These considerations lie at the root of the question whether it shall be done. "Where the amount of expense is so great that the undertaking is dropped, a public gain is lost by reason of this unfortunate obstacle. If the expense can in any way be reduced so that the balance, after weighing these counter considerations, is in favor of the benefit over the burden, then the public reap the advantage. It seems to follow that an offer to diminish the expense which should fall upon the public is a gain, and not a loss, to the public.”

As to the second objection, very earnestly pressed, it is completely answered by the act of March 23, 1896, amending § 3892 of the code of 1892, which act seems to have entirely escaped the attention of the learned counsel for appellant. This act ought to have been interleaved in the published acts of 1896, between pages 152 and 153. That amendment expressly provides that the committee shall consist “of two disinterested free holders of *640the district of the road.” The fact that three disinterested freeholders of the district of the road acted as the committee, of ■course, mates no difference. The proper number required by the amendment acted, and that was sufficient.

Affirmed.