Sallee v. Dalton

HART, J.,

(dissenting). The dissent of Mr. Justice Wood and the writer in this case is that the act in question is mandatory in its terms and substitutes the judgment of the commissioners for the district for that of the county court in violation of article 7, section 28 of our Constitution, which reads as follows:

“The county court shall have (exclusive original jurisdiction in all matter relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, the apprenticeship of minors, the disbursement of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties. The county court shall be held by one judge, except cases otherwise herein provided. ’ ’

In construing this section the court has uniformly held that, while the Legislature may prescribe the method of procedure in laying out public roads and altering those already established, it has no power to interfere with the discretion given the county court in the matter under the sections of the Constitution quoted above. Road Improvement District No. 1 v. Glover, 89 Ark. 513; Parkview Land Co. v. Road Improvement District No. 1, 92 Ark. 93, and Craig v. Greenwood District of Sebastian County, 91 Ark. 274.

. In the last mentioned case the court said:

“The Constitution of the State wisely leaves it to the county court to determine when and where public roads shall be established and, when once established, what alterations thereof shall be made. Expense .of care of public highways cannot be forced upon a county, nor can compensation for land taken for such purposes be demanded of a county without the concurring judgment of the county court establishing the road.”

This principle has been approved in our later decisions bearing on the question. In our judgment the majority opinion does not set out all the sections of the statute necessary for its correct interpretation. Therefore we set out sections 1, 3 and 5, which we consider necessary to a proper decision of the question of whether the statute takes away from the county court its discretion in laying out and establishing roads and altering those already established. Section 1 reads as follows:

“All of Randolph County west of Current and Black rivers be formed into a road improvement district for the purpose of macadamizing with crushed rock or gravel and with the necessary bridges, the following roads in Randolph County.

(1) . A road from Pocahontas to Mcllroy’s Perry on Current River, following the old road, ¡as nearly as practicable.

(2) . Prom Pocahontas to Maynard via Brockett, following the old road as nearly as practicable.

(3) . Prom Pocahontas to Elm’s Store via Lorine, Eleven Points and Dalton, following old road as nearly as practicable.

(4) . Prom Pocahontas to Imboden via Birdell to Spring River, which is the county line between Randolph and Lawrence counties (Imboden being just across the river and in Lawrence County), following the old road as nearly as practicable.

(5) . A road from Dalton south to the intersection with the last named road, at the most convenient point.

(6) . A road from Dalton to Ravenden Springs, following the old road as nearly as practicable.

(7) . A road from Maynard southeast, dividing near Current River and going to Richardson’s Perry and Biggers’ Perry, following the old road as nearly as practicable.

(8) . A road from Pocahontas to Noland, following the Pocahontas and Imboden road to a point about two (2) miles west of Pocahontas thence in a southerly direction to Noland.

(9) . A road leaving the road between Pocahontas and Dalton at a point to be selected by the commissioners and running west across Eleven Point River to intersect the road running from Dalton to Imboden.

(10) . A road connecting Warm Springs with the road from Pocahontas to Maynard at a point to be selected by the commissioners.

(11) . A road from Maynard to the Missouri State line to be selected by the commissioners.

Said roads will follow the best route attainable and adhere to the existing roads as near as practicable.”

Section 3 is as follows:

“Section 3. If any part of said road has not been laid out as a public road, it is hereby made the duty of the county court of Randolph County to lay the same, out in accordance with Act No. 422 of the acts of the G-eneral Assembly of the State of Arkansas for the year 1911, entitled, ‘An act to amend section 7329 of Kirby’s Digest of the statutes of Arkansas,’ approved May-31, 1911.”

Section 5 is as follows:

■ “Section 5. It is made the duty of said commissioners to proceed as rapidly as possible with the improvement of the road hereinbefore described, improving it in. such manner as they deem to the best interests of the property owners, and they shall also maintain said road in good condition after its completion. As soon as possible, the commissioners of said district shall form their plans for the improvement with the aid of the State Highway Department and of such engineers as they see fit to employ, and shall file the same with the county clerk of Randolph County, along with specifications and an estimate of the cost. If said commissioners deem it to the best interests of the district to vary the line of the road, as hereinbefore laid out, they may report that fact to the county clerk of Randolph County, and in that event, if the county court approves of the report, it may make an order changing the route of the road,and if necessary, it shall, in that event, lay out the new road in the manner hereinbefore provided.’’

It is a cardinal rule of construction that an act should be read from its four corners in interpreting the language used by the Legislature. Section 1 of the act provides for the establishment and improvement of a road from Pocahontas to Mcllroy’s Perry on Current River, following the old road as nearly as practicable. So, too, in the roads provided for in subdivision 2, 3, 4, 5, 6, and 7, the direction is that the old road shall be followed as nearly as practicable. It will be seen that gives the commissioners the power to change the old roads if the road as already established by the county court is not deemed practicable by them. This construction is borne out by the directions given in the subsequent subdivisions of section 1.

Subdivision 8 provides for a road from Pocahontas to Noland, following the Pocahontas and Imboden road to' a point two miles west of Pocahontas* thence in a southerly direction to Noland. It will be observed that the concluding part establishes a new road in a southerly, direction to Noland.

Section 9 provides for a new road leaving the road between Pocahontas and Dalton at a point to be selected by the commissioners and running west across Eleven Point to intersect the road running from Dalton to Imboden.

Section 10 provides for a" road connecting Warm Springs with a road from Pocahontas to Maynard at a point to be selected by the commissioners.

Section 11 provides a road from Maynard to the Missouri State line, to be selected by the commissioners.

So it will be seen that as to the last named four roads the commissioners are directed to lay out new roads. The section concludes by providing that said roads will follow the best route obtainable and adhere to the existing roads as near as practicable. This language plainly gives the commissioners power to lay out new roads and to alter those already established when in their judgment the existing road is not a practicable one. This, in effect, substitutes the judgment of the commissioners for that of the county court and is in direct violation of the section of the Constitution quoted above.

On this point in Cox v. Road Imp. Dist. etc., 118 Ark. 119, the court, upon motion for a rehearing said:

“It is first contended that the proceeding is void because its purpose is to authorize the construction of new roads. If such is its purpose, then the proceedings are void. In the case of Road Imp. Dist. v. Glover, supra, it was held that road improvement districts could not be formed and authorized to lay out and establish new public roads and impose upon the county court the duty to maintain them.”

It is said that section 3 still leaves it within the discretion of the county court as to whether new roads shall be laid out or alterations shall be made in old roads. We do not think the language of that section is susceptible to that construction. It plainly says that if any part of said road has not been laid out as a public road, it is made the duty of the county court of Randolph County to lay the same out in accordance with the general act of the Legislature with reference to laying out public roads. It will be readily seen that the language is mandatory and makes it obligatory upon the county court to lay out the roads as established by the commissioners. Of course, it does direct the county court to follow the method of procedure prescribed by the general act in laying out roads, but this does not change the mandatory character of the language. It is in plain terms made the duty of the county court to lay out the roads as established by the commissioners. The direction to follow the usual mode of procedure in doing so does not leave any discretion to the county court in deciding whether or not the roads as established by the commissioners are to the best interest of the public.

This instruction is borne out by the language used in section 5. Section 5 gives the power to the commissioners to change the road after they have once established it. The language used is that if the commissioners deem it to the best interest of the district to vary the line of the roads as hereinbefore laid out, they may report that fact to the county clerk, and if the county court approves the report it may make an order changing the route of the road. The words “as hereinbefore laid out” refer to the first laying out of the roads by the commissioners provided for in section 1. The evident intention of the Legislature was to give the commissioners the power to change the road if they should later decide that they had made a mistake in laying it out as provided in section 1. We are of the opinion that the language of the act is mandatory, and has so limited the power of the county court with respect to laying out roads and altering those already established as to destroy its freedom of judgment in the matter.

It is clear from the language used that it was the intention to make any adjudication by the county court the result of dictation by .the commissioners, and this the Constitution does not allow.

As we have frequently said, this jurisdiction was appropriately given to the county court. Otherwise the conflicting interests of various towns and localities in the county through which the country roads run might prevent such a location of them as would be for the public good. Under our Constitution counties are units of government, and it was deemed best to place their internal affairs, and as well the laying out of roads, in the county courts, to the end that a uniform system of roads might be established which would best subserve the public interest.

As stated in Thompson v. Grand Gulf Railroad and Banking Co., 3 Howard (Miss.) 240, “To determine between the Constitution and the Legislature is often embarrassing, and always demands a cautious and deliberate investigation. In the inquiry is involved the highest function of the judicial department. The acts of the Legislature should 'be sustained, if possible; the Constitution must be preserved inviolate.”

Therefore we respectfully dissent from the opinion of the majority.