The Commonwealth for &C. v. Boone County Court

• Decision Date: 03 April 1885
• Parties: The Commonwealth for &c. v. Boone County Court.
• Court: Kentucky Court of Appeals

82 Ky. 632

The Commonwealth for &c. v. Boone County Court.

Court of Appeals of Kentucky.

April 3, 1885.

APPEAL FROM BOONE CIRCUIT COURT.

W. LINDSAY AND L. C. NORMAN FOR APPELLANT.

WARREN MONTFORT AND S. W. TOLIN FOR APPELLEES.

JUDGE HOLT DELIVERED THE OPINION OF THE COURT.

Chapter 28, article 16, of the General Statutes, says that the "county courts have jurisdiction to lay and superintend the collection of the county levy, erect and keep in repair necessary public buildings, bridges and other structures, and superintend the same."

Section 29, article 1, chapter 94, provides that "if in the opinion of the surveyor the task of erecting or repairing a bridge or causeway be too onerous to impose on his force, he may report the case to the county court, whose duty it shall be to provide by proper means for the necessity;" while section 35 reads thus: "When a bridge or causeway shall be necessary on a road, and the expense of erecting or repairing the same is too great to impose on the precinct, the county court of the county shall have the same erected or repaired, and levy the cost thereof on the county."

The provisions supra of the general law were not repealed either expressly or by necessary implication as to Boone county by the act of the Legislature, approved January 29, 1874, entitled "An act relating to opening and repairing roads in Boone county," or by that approved March 30, 1882, entitled "An act to amend and reduce into one all the laws relating to opening, repairing, keeping in repair, and levying and collecting taxes for the benefit of public roads in Boone county;" nor was the general law, as found in chapter 94 of the General Statutes, entitled "Roads and Passways," repealed as to said county by said two acts, save so far as its provisions are in conflict with them. They expressly provide that "acts in conflict" with them are repealed. It is true that the one first above named provided that the general road laws of the State should remain in force entire as to Boone county until April, 1875; but this was because the act, if ratified by a majority of the voters of the county at the succeeding August election (as it had to be, to be operative), was not, according to its provisions, to be put into operation until April, 1875, when, if so ratified, it repealed the general law to the extent that it conflicted with it.

To show that this construction of the acts in question is correct, but one illustration need be given. The one approved March 30, 1882, provides that the surveyor of each road precinct shall notify each person within it "who is required by law to work upon public roads" of the time when, and place where, he must do so, and a penalty is provided against any person "liable to work upon public roads" who fails to comply with the notice; while the other requires that in the allotment of road districts each shall contain the same number of persons that are by law required to work on the roads, and also provides for the levy of a poll-tax upon them; and yet neither act prescribes the persons who may be required to so work, and their provisions in the main are nugatory, unless supplemented by the general law upon the subject so far as they do not conflict. Neither of them provide for the erection or original construction of bridges, and speak only of their repair.

The rule is well established that a statute is repealed only when a subsequent law expressly so provides, or by necessary implication, and the latter is not favored and is only effectual when they are so inconsistent with each other as to be incapable of reconciliation; and when one is local in its application, and the other is general, they will both be upheld as a consistent whole so far as they are not absolutely inconsistent.

The appellants first presented a petition to the Boone County Levy Court asking it to erect a bridge, at a cost of about $5,000, over Wolfer creek, about one and a fourth miles from where it empties into the Ohio river, and upon the county road leading from Bellevue to Petersburg, a distance of about seven miles. The creek being the line between two road precincts, the petition was accompanied by the reports of the surveyors of those precincts, stating that the erection of the bridge was necessary, and that its construction by the two precincts would be too onerous upon them. The ground of the application was that the rise of water in the creek from freshets and the back water from the Ohio river often...