(dissenting).- Judge Wood and the writer are content to declare the law, as we find it written, and therefore dissent from that part of the opinion -which holds that the statute does not authorize or empower the commissioners to maintain and repair the roads.
The section which confers the power and duty upon the commissioners to make the improvement is the same in each district. In District No. 3 it is section 6 and reads as follows: “The said hoard of commissioners shall have, and they are hereby vested with the power and authority, and it is hereby made .their duty to build, construct, maintain, and repair said road or roads within said district as herein provided, and to carry out the improvements herein contemplated, and in so doing shall expend all necessary sums of money authorized to be levied and collected under the authority of this act, provided, that said commissioners shall not expend more than four thousand dollars ($4,000) per mile in building and constructing the highway or highways herein designated or those that may be designated by said commission under the provisions of this act. Said four thousand dollars to be exclusive of State and Federal aid, and exclusive of all funds derived from the assessment of benefits of railroads and tramways, and said sum to be also exclusive of the amount of interest that shall be required to be paid on bonds of said improvement district.”
The framers of the act must be understood to have used words in their natural sense and to have intended what they said. When the language of a statute is plain and conveys a clear and definite meaning, courts should give to the statute the exact meaning conveyed by the language, adding nothing thereto and taking nothing therefrom. When tested by the language used, it is evident that the power to maintain the roads is as plainly and clearly conferred as is the power to construct them in the first instance.
The section provides that the board is hereby vested with the poyer and authority, and it is hereby made its duty, to build, construct, maintain, and repair said road or roads as herein provided. The language is too plain to need construction. The power to repair and maintain is as plainly conferred as the power to construct. This is shown by the latter part of the section which limits the cost of construction to $4,000 per mile. If the act is too indefinite to confer the power to make assessments for the repair and maintenance of the roads, it is likewise too indefinite to confer the power to levy assessments to construct the roads. If it is too indefinite to be capable of enforcement in the matter of repairs and maintenance, it is subject to the same vice with regard to construction. The language in the one case is as plain as in the other. The words “as herein provided” as clearly and definitely refer to the maintenance of the roads as they do to the construction thereof. To hold otherwise would be to hold that the General Assembly meant to say that which it did not say, and that it did not say that which in the clearest and plainest language it has said.
But it is said that there is a certain section which provides for the continuation of the commissioners in office, and that it bears out the construction of the majority.
In district 3 this section is No. 1. It first provides that the lands hereafter described are hereby made an improvement district for the purpose of improving certain highways in Benton County, Arkansas. Commissioners are then provided for whose terms of office are fixed at six years. It is then provided that the commissioners, not less than thirty days before the expiration of their term of office, shall elect five commissioners to succeed themselves, whose term of office shall be six years, and who shall hold office until their successors are elected and qualified which shall be done in the same manner. Continuing the sections reads “after which the commissioners of said district shall be maintained in succession in the same way as a board of improvement for the preservation and maintenance of the highway or highways herein contemplated. ’ ’ It will be noted that the language used is not for the preservation and maintenance of the districts in order to provide for collecting assessments and paying the cost of the improvement. That purpose is provided for in subsequent sections. The language used is that the board shall be maintained in succession in the same way and as a board for the preservation and maintenance of the highways. As we read the law, the maintenance of the board for the preservation and maintenance of the highways does not and can not (except as made so by the decision of the majority) mean continuing the board “merely to provide for collecting assessments and paying the cost of the improvements and the bonds sold for that purpose.”
For the sake of convenience it may not be inappropriate to discuss that portion of the opinion which approves the manner of selecting commissioners in succession. As we have just seen, the section provides that the original commissioners shall hold office for a term of six years, and they in turn shall elect their successors for a like term.
In Board of Improvement of Sewer District No. 2 v. Moreland, 94 Ark. 380, the court held that the commissioners of the improvement district within a city are public officers. The statutes creating the districts in the case at bar speak of the terms of office of the commissioners. In the first place, we think it is contrary to our American institutions that officers should perpetuate themselves in office, or even that they should be given the power to elect their successors in office. The power given to the board to continue itself in succession is also opposed at least to the spirit of section 19 of our Bill of Rights, which provides that perpetuities and monopolies are contrary to the genius of a republic.
Having reached the conclusion that the statute gives to the commissioners the power to maintain and repair the roads, it becomes necessary to consider whether the authority conferred is violative of article 7, section 28, of the Constitution, which confers upon the county courts exclusive original jurisdiction in all matters relating to roads, bridges, etc. Inasmuch as this question has not been discussed in the majority opinion, and is therefore a matter subject to judicial determination hereafter, it will be only necessary to briefly state our views on this point. This court has expressly held that under .the section of the Constitution just referred to, the Legislature has no power to vest any other tribunal than the county court with jurisdiction over the expenditures of the road funds raised under the general revenue clause of the Constitution. El Dorado v. Union County, 122 Ark. 184.
This court has repeatedly recognized the wisdom of giving exclusive original jurisdiction to the county courts, not only in laying out, vacating and altering public roads, but also in preserving, repairing and maintaining them. The reason is that the roads are devoted to public use. A public road is a county road which the entire public travels and in which it is interested. Of course, the jurisdiction over roads might have been conferred upon some other tribunal, had the framers of the Constitution seen fit to do so, but, under our Constitution, counties are the units of government, and it was deemed best to vest in them the exclusive original jurisdiction over roads and bridges. It was manifestly intended that one tribunal should have the exclusive original jurisdiction, not only of establishing, vacating and altering highways, but also of preserving, repairing and maintaining the same for thé purpose of acquiring uniformity in the system and to the end that the public interests might best be subserved. Otherwise the conflicting interests of the various towns and localities in the county might prevent such a location and maintenance of the roads as would be best for the public good. To illustrate: Benton County is a large county, and there are other public roads in the county that are not to be improved under the acts under consideration in this case. At present the county court has the exclusive jurisdiction to preserve and maintain these roads. If the commissioners should be given charge of the preservation, maintenance and repair of the roads enumerated in the acts in question and the other public roads are under the jurisdiction of the county court for the same purpose, it is evident that there is and can be no uniformity in preserving, maintaining and repairing the roads of Benton County as a whole. The conflicting interests of the various towns and localities and the divergent views of the various officers given charge of the matter will inevitably result in injury to the public interests.
It is suggested in the majority opinion that if the county court abuses its discretion in any particular, the courts could curb it. Does this mean that the county court is to be a mere figurehead and obey the mandates of the commissioners and approve their suggestions? If so, where is its freedom of judgment or real jurisdiction over roads? To exercise jurisdiction over a subject means to give thought and direction to the subject within well defined limits; but it does not mean that the tribunal exercising the jurisdiction must approve the acts of another body or else be deprived of any voice or judgment in the matter at all.
Again, other road-districts might be created until every public road in the county is included in some district. Suppose the commissioners who construct the roads are given jurisdiction to preserve, maintain and repair them; there are usually from three to five commissioners in each district, and they are given the power to appoint agents and servants to aid them in their work. If this should be done, then indeed we shall have, not only an unwieldy and expensive system of maintaining, preserving and repairing our public roads, but one where the conflicting interest of the various districts and localities may work to the injury of the public. We think the framers of the Constitution had in mind the probability, or at least the possibility, of these evils or injurious consequences to the public good, when they placed the exclusive original jurisdiction over roads and bridges under the same tribunal in the various counties. The people vested the exclusive jurisdiction over roads in the same tribunal in each county to the end that there might be uniformity in the system of constructing and maintaining roads, and to the further end that the tribunal vested with control over them should be elected by the whole people and accountable to them.
We are constrained to concur in that part of the opinion of the majority which holds that the act should not be held invalid because no notice of the intention to apply therefor was given in accordance with the provisions of article 5, section 25, of the Constitution, but for an altogether different reason. We think that the provisions of section 25, article 5, of the Constitution were intended to be mandatory, and should have been so construed in the case of Davis v. Gaines, 48 Ark. 370, instead of having been held to be directory merely. We would be in favor of overruling altogether the holding in that case to the effect that the question of whether notice was given as required by the Constitution was not open to judicial review, were it not that such decision would operate retrospectively and would disturb vested rights.' It is true that some of the reasoning in the recent case of Booe v. Road Imp. Dist. No. 4 of Prairie County, 141 Ark. 140, is opposed to this view, but the reasoning was not necessary to the decision made and was used to show that the court would not be in favor of making a decision which would disturb vested rights. The opinion proceeded on the theory that the decisions of a court operate retroactively, and rights which should be regarded as certain and fixed should not be disturbed. Property is purchased and investments are made upon the faith of the stability of the decisions of a court, and more harm than good would result from rendering decisions which would impair the obligation of contracts or disturb vested rights, even though the decisions overruled were manifestly wrong- and unjust. All that was necessary to decide in the Booe case was that the passage of an act is conclusive of the fact that due notice of the intention to apply for the passage of a special bill was given unless the records of which the courts may take judicial notice show otherwise, As pointed out in that opinion, courts can not act upon admissions or proof made by tbe parties in determining the constitutionality of statutes. If this were so,laws could be made or abrogated by agreement or by proof made during the trial at the option of litigants. Where courts have record evidence to guide them as to the question of notice, all uncertainty with regard to the giving of the notice will be eliminated.
The section of the Constitution with regard to giving notice provides that the Legislature may prescribe the manner of giving it. It further provides that the evidence of such notice having been published shall be exhibited in the General Assembly before such act shall be passed. One of the meanings in law given to the verb exhibit, by Webster, is to file for record. Hence we think the framers of the Constitution intended that evidence of the notice should be filed for record in the Legislature. The court then could judicially take notice of that record and conclusively ascertain whether or not the mandate of the Constitution had been complied with. If any evidence of such notice having been published appeared on file as a part of the records of the Legislature, the court for the reasons above given would not inquire into the sufficiency of the notice, but would indulge the conclusive presumption that the Legislature had determined that it had been given in the manner required by the Constitution. On the other hand if there was nothing filed of record in the Legislature, this would be conclusive proof that the evidence of the notice having been published had not been exhibited to the Legislature and that the mandatory provision of the Constitution had not been complied with.
If any of the reasoning in the Booe case should be ■opposed to this view, it could be eliminated without overturning the soundness of that decision and would not disturb vested rights. The case of Davis v. Gaines, supra, however was decided at the November term, 1886, of this court, and since that time many special acts have been passed and rights have grown up under them. To set aside the line of decisions on this question following that case at this date might result in more harm than good in the administration of justice and would necessarily disturb vested rights In expressing the view that a decision now overruling a former decision construing a provision of our Constitution would have a retro ative effect, we are not unmindful of the long established doctrine of the Supreme Court of the the United States to the effect that the question arising in a statute in a Federal ■ court where vested rights have acrued is to be determined by the law as judicially declared by the highest court of the State when the rights accrue and that the rights and obligations accruing under such state of the law would not be -affected by a different course of judicial decisions subsequently rendered any more than by subsequent legislation. Loeb v. Columbia Township Trustees, 179 U. S. 472. The court however in that case recognized that the decision of the State court overruling a former decision acts retroactively, and pointed out that this was the effect of the holding in Central Land Co. v. Laidley, 159 U. S. 103. In the latter case it was held that under the statute giving the Supreme Court of the United States authority to review the judgment of the highest court of the State, the Supreme Court of the United States was without jurisdiction if the action of the State court was impeached simply on the ground that it had not determined the rights of the plaintiff in error in accordance with its decisions in force when those rights accrued, but had followed its decisions of a contrary character rendered after his rights had accrued.
In Tolliver v. Barnett, 47 Ark. 359, the court held that the- decision of a court -overruling a previous decision .of a court operates retrospectively. Chief Justice Cockrell said: “A decision of the court when overruled stands as though it had never been, and the court in the reversing judgment declares what the rule of law was in fact when the erroneous decision was made. ’ ’
Again in Apel v. Kelsey, 52 Ark. 342, the court in discussing the question, speaking through Judge Sandels, said that former interpreations of the law have become rules of property, and can not be overturned without uprooting the title to one-fourth of the property of the State.
What we have said in the dissenting opinion in Johns v. Road Imp. Dist. applies with equal force to this case and need not be repeated here.