The testimony developed the fact, as is stated in the concurring opinion of Mr. Justice HART, that the State of Missouri had laid out and unproved a highway from Kansas City, in that State, to a point on the Missouri line near Mammoth Spring, in this State, and it is just here that I think the engineer of the district fell into error. He evidently thought it would be a good idea to extend this road as far as possible into this State; but that purpose, however laudable, was not authorized by the act of the General Assembly authorizing the improvement.
The purpose of the act under review was to improve four existing roads, having a total length of 125 miles, running through a mountainous, sparsely settled country, and the roads to be improved were the existing roads at the time of the passage of the act, and the authority conferred was not to build new roads, with designated termini, which should run through certain named towns and villages, but to improve the roads then existing, having the termini named, and which ran through the towns and villages named. *Page 70
It is my opinion, as stated in the opinion of the Chief Justice, that, subject to the approval of the county court, material changes might have been made in the roads; but I do not agree that the act conferred any such wide discretion in this respect as the engineer undertook to exercise. In my opinion, material changes were to be made only in straightening and improving the existing roads, and there was no intention to confer, even with the approval of the county court, the authority to lay out, practically speaking, new roads.
I do not agree that the good faith of the engineer is the only test to be applied in determining the compensation he may charge the district for his services. He must, of course, have acted in good faith, but even so he cannot charge for services which the act creating the district did not authorize him to perform, however much or however honestly he may have been mistaken.
The commissioners themselves could confer no greater authority upon the engineer than the act which authorized them to employ an engineer conferred on them, and it is my opinion that the engineer wholly misconceived the nature of his employment and the extent of his powers thereunder.
Section 2 of the act designates the roads to be unproved, and those were the existing roads, which were to be changed only when change was necessary to straighten or widen them. This section of the act clothed the commissioners "with power and authority to construct any bridges across any of the rivers or streams at or near the point where the said public roads intersect said streams," and the undisputed testimony shows that these bridges were located at crossings of rivers and streams without any reference to the existing crossings of such rivers and streams.
The opinion of the Chief Justice, as well as the concurring opinion of Mr. Justice HART, refer to and describe the road from Mammoth Spring, through Hardy, to Williford, and the road surveyed between *Page 71 these points is typical of the other three roads. It does begin at Mammoth Spring, and it does run through Hardy, and does terminate at Williford; but that is as much as can be said for it. Certainly, the survey of the engineer did not contemplate the improvement of the existing road which ran from Mammoth Spring, through Hardy. On the contrary, as appears from both of the opinions referred to, the engineer ignored even a river. Equally as little attention was paid to the existing roads in the survey of the other three roads which the district proposed to improve.
It may be admitted that, from an engineering standpoint, good reasons for the changes in the location and route were given. On behalf of the engineer, it was testified that the existing roads were not suitable to become improved highways, and the excuse given for many of the changes made was that excessive grades were eliminated. It was explained that State and Federal aid would not be given an improved road having grades exceeding seven per cent., and that much of the existing roads exceeded that limitation. But many witnesses on behalf of the district testified that these changes involved the acquisition of practically new right-of-way for the roads, and that much damage would be done through obstructed drainage, and much expense would be incurred by reason of the blasting excavations, fillings, and bridges which would be required to construct the new road which was being surveyed.
The county judge of one of the counties testified that he informed the commissioners, while the survey was progressing, that he would not pay or authorize the payment of the damages which would result from the laying out of the new road, and yet the survey continued.
One of the commissioners testified that the board of commissioners gave the engineer no authority or direction to shift the road to the opposite side of the river, nor was the engineer given any authority or direction to deviate from the old roads to any extent; and another *Page 72 commissioner who corroborated this statement testified that such suggestions as he did make were disregarded. In this connection, it may be said that it was not contended that the road had been shifted to the opposite side of the river for the purpose of straightening or widening it. No such discretion was vested as was here exercised, and the engineer's case would not be bettered had the commissioners themselves directed him to ignore the provisions and purpose of the act and to lay out the kind of road which he, as an engineer, regarded as most desirable.
No attention whatever appears to have been paid to the requirement of the act that the bridges of the district should be constructed "at or near the point where the said public roads intersect said streams." This language, of course, means where the roads existing at the time of the passage of the act intersected said streams.
In the recent case of Plum Bayou Levee District v. Pocket Cypress Drainage Dist. No. 1, 165 Ark. 576, legislative authorization was given for a drainage district to cross the line of the levee of a levee district, and the appeal involved a suitable place for the drainage district to intersect the levee. The act gave the privilege of crossing at or near a certain mile-post. In construing the use of the word "near," there used, we said: "Of course, the use of the word `near' gives a little latitude, but it clearly means that the point of passage should be approximately at the mile-post between the designated sections."
So here I think the language of the act set out above was a legislative direction showing clearly that the roads to be improved were the existing roads.
The court below made the following finding of fact:
"The court finds further that under the provisions of said act it was the purpose and intention of the General Assembly to improve and repair the existing public roads only, not to construct or build an entirely new *Page 73 and different road. That the route as surveyed by plaintiff was almost entirely along a new route, and, in order to have used said survey, it would have been necessary to build many bridges over Spring River and other streams, and have purchased right-of-way, and to have built an entirely new road, in some instances miles from the established public road on the opposite side of Spring River from the present road.
"That said survey so made by plaintiff was worthless to the said district, and could not have been used or adopted by the commissioners of the district for the reason that the said special act creating said district did not authorize such departure from or change in the existing roads, and for the further reason that the route surveyed and laid out did not belong to the respective counties, and could not have been used without the exercise of the right of eminent domain and at a great cost to the respective counties, which was not authorized by said act No. 32."
Certainly, this finding of fact is not clearly against the preponderance of the evidence. Many witnesses gave testimony fully supporting this finding. Indeed, as I understand the testimony, the finding is sustained by the undisputed evidence. I copy from appellant's own testimony the following questions and answers: "Q. Then, your survey, as made by your man, was made according to your idea of laying out a new road from Mammoth Spring by way of Hardy, Ash Flat, Franklin, and Melbourne, down to Mount Olive, was it not? A. Well, I don't know whether you would regard it as a new road entirely or not. It was made with the view of improving the old road, but in making the improvement according to the act as we understand it it was practically necessary to construct a new road. Q. And that was your object? A. Yes sir."
Under this testimony and the finding made by the court, the rule announced in Kern v. Booneville Sanatorium Highway Dist., 154 Ark. 107, should be applied. In that *Page 74 case the engineer did complete his preliminary survey, while here that was not done. The testimony of numerous witnesses shows that appellant did not complete the preliminary survey, for he was not permitted to do even this, and the undisputed testimony shows that the chief cause of the dissatisfaction was the apparent attempt to lay out what were regarded as practically new roads.
In the Kern case the estimate of cost far exceeded the particular benefits, though the point of assessing benefits was never reached. Here, of course, no benefits were assessed because there was not even a preliminary survey; but it is equally as certain in this case, as it was in that, that the roads could not have been built within the limitation upon the cost imposed by the act Section 14 of the act limited the cost of the improvement, exclusive of interest on borrowed money, to a sum not exceeding thirty per cent. of the value of all the lands and real property in the district as shown by the last county assessment, including railroads.
The engineer was proposing to construct four practically new roads, which would have had no grades exceeding seven per cent., through a sparsely settled country, having high hills and deep valleys, and which is largely undeveloped, and that this could not be done at a cost not exceeding thirty per cent. of the assessed value is a fact which is as certain, although no betterments were ever assessed, as that the Booneville road could not have been built within the estimated and authorized cost of that road; and I think it is as certain here, as it was there, that the surveys of the engineer could not have been of any value to the district, because in this case, as in that, the cost of the road would have exceeded the limitation upon the cost, the limitation in that case being imposed by the commissioners themselves, while in the instant case the limitation was imposed by the act creating the district. The doctrine of that case should be applied here for the additional reason, which I have *Page 75 shown, that the engineer surveyed roads which the district was not authorized to build at all, whereas Kern did at least survey a road which that district was authorized to improve, and compensation was denied him only because the cost was too great.
In my opinion, appellant should have compensation for all the work he did, or should be denied any compensation. His work was authorized or it was unauthorized, and his plans could have been used by the district if he had completed them, or they were worthless. The route he was surveying could have been adopted, or it must have been rejected as being unauthorized by the act creating the district.
Mr. Justice WOOD concurs in what is herein said, except that he does not think the act conferred authority to make any material changes in the existing roads; but as we both agree that the act authorized no such disregard of the legislative purpose as is shown by the testimony in this case, we are of the opinion that the decree of the lower court should be affirmed.