This case is to be determined as the law stood prior to the enactment of Chapter 101, laws of the Forty-second General Assembly, known as the "Road Control" law. The election was held in Woodbury County, June 1, 1927, and the statutes which we must construe to determine the issues were as they appear in the Code of 1924, in Chapter 241 thereof, as amended by the Forty-first General Assembly.
Section 4687, Code, 1924, states the intention of the legislature to be to divide the highways of the state into two systems, a primary and a secondary, and "to provide for the substantial and durable improvement of such primary roads of each county, to pay for said improvements on such primary roads from federal aid funds, motor vehicle registration fees, * * *."
Section 4690 created the primary road fund and provided that said fund "shall embrace all federal aid road funds, and all funds derived from year to year by the state under acts regulatory of motor vehicles, * * *."
Thus it is apparent from reading the two sections above referred to, that the primary road fund was to be used for the improvement of the primary roads. The primary roads were defined in Section 4689, Code, 1924, as follows: *Page 1159
"The primary road system shall embrace those main market roads (not including roads within cities), which connect all county seat towns and cities and main market centers, and which have already been designated under Section 2 of Chapter 249 of the Laws of the Thirty-seventh General Assembly, accepting the provisions of the act of congress approved July 11, 1916, known as the federal aid road act; provided that the said designation of the roads shall, for more efficient service or more economical construction of the system, and with the consent of the federal authorities, be subject to revision by the State Highway Commission. Any portion of said primary system so eliminated by any change shall revert to and become a part of the system from which originally taken * * *."
The language just quoted excludes in general "roads within cities."
It is to be observed, however, that there are special statutory provisions in regard to the use of the primary road fund within cities and towns. The legislature has recognized the fact that the primary road system does not necessarily break off at the limits of a city or town, but may continue on in one connected system through a city or town. In Section 4691, Code, 1924, this thought is put in the following language:
"Where any town or city, including special charter, commission plan and manager plan cities, having a population of less than twenty-five hundred has heretofore, and since the enactment of this chapter procured at its own expense right of way for aprimary road, the board of supervisors is authorized to reimburse said city or town from the primary road fund for the cost of such right of way."
Also in Section 4731, as amended by Chapter 111, Acts of the Forty-first General Assembly, wherein it is said:
"The board of supervisors is hereby given plenary jurisdiction subject to the approval of the council to purchase or condemn right of way therefor and grade, drain, bridge, gravel, or hard surface any road or street which is a continuation of the primary road system of the county and which is:
"1. Within any town, or *Page 1160
"2. Within any city, including cities acting under special charter, having a population of less than twenty-five hundred, or
"3. Within that part of any city, including cities acting under special charter, where the houses or business houses average not less than two hundred feet apart.
"The primary road fund shall not be charged with the cost of hard surfacing within the cities and towns specified above in excess of the cost of hard surfacing which is eighteen feet in width.
"After the completion of such improvement the same shall be maintained by the city or town and such city or town shall rest under the same obligation of care as to such improvements as is now provided by law for roads and streets generally.
"Any such city or town through its council and each county of the state through its board of supervisors are hereby authorized to enter into written agreements subject to the approval of the state highway commission to determine the location of such improvements within such cities or towns. In case of disagreement the matter shall be referred to the state highway commission, whose decision shall be final. The board of supervisors shall not drain, grade, gravel, or hard surface any highway within the limits of cities other than those specified herein."
Section 4732, Code, 1924, provides:
"In the improvement of extensions of the primary road system within cities or towns hereunder, the board of supervisors shall have power to purchase or condemn the necessary right of way therefor, and such condemnation proceedings shall be under the same laws as now apply to the condemnation of right of way for roads outside of cities and towns on primary roads."
Section 4733 provides:
"Any town, through its council, may, by resolution, make application to the board of supervisors of its county for the grading, draining, graveling, or hard surfacing of any road or street in said town or along its limits, which is a continuation of the primary road system of the county, by filing the resolution making application therefor with the county auditor. The *Page 1161 board of supervisors shall examine said application and shall within thirty days after the filing thereof with the county auditor take action thereon. The board may approve said application in whole or in part or may wholly reject the same, whereupon the resolution, together with a record of the board's action thereon, shall be forwarded to the state highway commission for final review. The state highway commission shall examine said resolution and the action of the board thereon, and shall within thirty days make final determination thereof. * * *"
It is thus apparent that while in general the roads within cities were not included in the primary road system, certain roads within cities might be included in the system by appropriate action, under the provisions of the statutes hereinbefore referred to.
The primary road system is either to be a connected and continuous system of roads crossing the state, or, if the construction urged by appellants herein is followed, a disjointed and patchwork system, with gaps or omissions at the limits of every city through which the road would otherwise pass.
In construing the statutes involved we must take into consideration the intention of the legislature and of the people of this state, as expressed by them through their representatives, over a period of a number of years. The growth and development of the primary road system is a matter of history with which we are all familiar. It was the intention of the legislature and of the people that the primary roads should be a connected and continuous system of roads joining "county seat towns and cities and main market centers." In order to provide such a system it was necessary that the roads designated as "primary roads" should, for the purpose of establishment and construction, be under the supervision of the board charged with the establishment and construction of the primary roads generally. Thus when a primary road was established or designated (under the provisions of the statutes hereinbefore quoted) extending through a city or town, the continuation thereof became a part of the primary road system for certain purposes, including its establishment and construction.
The election in Woodbury County at which the board of supervisors were authorized to issue and sell bonds to hasten *Page 1162 the improvement of the primary roads of the county, was held under the provisions of Chapter 241, Code, 1924, and Section 4720 thereof. Nothing is contained in the provisions of the statute, or of the ballot used at the election, expressly prohibiting the use of the funds derived from the sale of bonds in the improvement of continuations of the primary road system. A large part of the taxable property of Woodbury County is within Sioux City. A major part of the motor vehicle license fees comes from residents thereof. The credit pledged to the payment of the bonds was to a considerable extent based upon the value of property in the city. Unless expressly stated in the law, or ballot used at the election, it would therefore be manifestly unfair and discriminatory to hold that the proceeds derived from the sale of these bonds could not be used to improve parts of the primary roads within the city limits. The primary road fund, as we have heretofore pointed out, may clearly be used for such purpose. We fail to find any legal reason prohibiting the use of funds derived from the sale of county primary road bonds for such purpose. The term "primary roads of the county," used in the statutes and in the ballot, refers to one class of roads made by the legislature, as distinguished from another class, to wit, secondary roads. This classification may be added to or changes and revisions made therein from time to time, as provided by the statutes. "Continuations" or "Extensions" of primary roads in cities, when made according to statute, become a part of the class subject to special provisions in regard to maintenance and care by the city. (Section 4731, Code, 1924.)
Unless we were to take a very narrow and restricted view of the intentions of the legislature as expressed in the statutes referred to, we must hold, as did the lower court, that funds derived from the sale of county primary road bonds, authorized as hereinbefore stated, may be used for the purpose of making the improvement contemplated in this case on continuations or extensions of the primary road system running through the city of Sioux City.
The bonds authorized by the voters of Woodbury County are merely to provide means to anticipate the primary road funds which would have been allotted to that county, and to enable the hastening of the improvement of the primary roads. *Page 1163 Funds derived by the sale of these bonds will not be diverted from their lawful purpose if used in the manner proposed by the appellees.
GRIMM, J., joins in dissent.