Conway v. Miller County Highway & Bridge District

• Decision Date: 01 November 1915
• Docket Number: 207
• Citation: 179 S.W. 1009,120 Ark. 510
• Parties: CONWAY v. MILLER COUNTY HIGHWAY & BRIDGE DISTRICT
• Court: Arkansas Supreme Court

179 S.W. 1009

120 Ark. 510

CONWAY v. MILLER COUNTY HIGHWAY & BRIDGE DISTRICT

No. 207

Supreme Court of Arkansas

November 1, 1915

Appeal from Miller Chancery Court; Jas. D. Shaver, Chancellor reversed.

Decree reversed and cause remanded.

William H. Arnold, for appellant.

1. In establishing the Highway and Bridge District, the Legislature has attempted to give jurisdiction and control to the commissioners of the district, over such parts of the public roads therein as they may select, not exceeding sixty miles in the aggregate length of such roads which they may take charge of and improve. This is in conflict with the jurisdiction conferred upon the county court by the Constitution, art. 7, § 28, Const.; 89 Ark. 513; 118 Ark. 294. The commissioners have resolved to build five such roads under authority of section 2 of the act creating the district. See also §§ 5, 6, 7 of the act.

These five roads and bridge do not constitute a single improvement within the meaning of the law. Supra. The act is inoperative on account of the indefiniteness of location of the proposed improvement. Swepton v. Avery, 118 Ark. 294.

2. The court was right in overruling the demurrer to the fifth paragraph of the complaint and in enjoining the commissioners from issuing bonds or incurring any indebtedness beyond 15 per cent. in valuation. § 8, Act. Interest on the bonds is a part of the cost of the improvement. 102 Ark. 306.

3. Under the act, the commissioners are required to build the bridge as a part of the improvement, and it is not severable from the remainder of the improvement contemplated by the act.

E. B Kinsworthy and T. D. Crawford as amici curiae.

The act is clearly void under the ruling in Swepton v Avery, 118 Ark. 294.

If the act has authorized the commissioners to combine a number of separate improvements in a single district, it is void. Id.; 89 Ark. 513.

It is void in that it invests in the commissioners the discretion of selecting the location of the bridge, intended to become a public highway and part of a system of public highways. This is a "local matter," the exclusive jurisdiction of which is vested in the county court.

The act is inoperative since it calls for improvements in excess of 15 per cent. of the valuation of all real property in the district.

It is manifest from a consideration of the terms of the act that the bridge and highways were intended to be a single and indivisible improvement. See sections 2, 5 and 6 of the act.

A reasonable construction of the clause "if in the opinion of said commission it may be deemed necessary under this act" is not that it confers upon the commissioners any discretion as to building the bridge, but rather as to the character of the bridge to be built.

Section 8 of the act plainly and without ambiguity limits the cost of the improvement authorized by the act to 15 per cent. of the valuation of the real property in the district. To construe the proviso of this section to mean, as contended for by appellee, that the only limitation on the amount of the improvements is that the district must not issue bonds in excess of 15 per cent. of the valuation would be contrary to legitimate statutory construction, and amount to rewriting the statute. The interest on the bonds must be considered as a part of the cost.

M. E Sanderson, for appellee.

1. It is settled by the decisions of this court that the improvements authorized by this act are not in conflict with article 7, section 28, of the Constitution. This is not an attempt to organize a whole county into a road improvement district, as in the Swepton case, 118 Ark. 294, nor does it authorize the organization of a road improvement district with power placed in the hands of directors or commissioners to establish new public roads and impose their maintenance upon the county court. On the contrary, section 5 of the act expressly provides that, "The commission shall only improve such public highways as may have been laid out, or may hereafter be laid out, by the county court of Miller County." Acts 1915, p. 622; 92 Ark. 93; 96 Ark. 416; 104 Ark. 425. See also section 36 of the act.

2. There is no merit in the contention that the contemplated improvement of five roads as shown by the resolution of the commissioners does not constitute a single improvement, that the act is deficient in failing to provide that it shall be made in such manner as to be a connected single improvement, and inoperative on account of indefiniteness of location of the proposed improvement. See sections 2, 5 and 6 of the act, from which it is seen that the purpose of the Legislature in creating the district was to provide for the construction of a connected system of highways leading from the city of Texarkana to the Red river on the north and east of the city. It was not intended to limit the commission to building the main road from the city of Texarkana to a fixed point on the Red river. The closing words of section 2 expressly grants power to the commission to build other highways than the main road, but only in connection with the highway leading to said bridge. There is no "roving commission" here, as was the case in Cox v. Improvement District, 118 Ark. 119. There is no indefiniteness as to the location of the improvement. The Legislature only undertook to describe it in a general way, leaving the plan or system of highways and bridge to be developed by the commission so as to serve the best interests of the people as a whole in said territory. The roads to be improved are accurately described upon the plat adopted by the commissioners.

3. It was not the purpose of the act to limit the cost of the improvement to 15 per cent. of the valuation of real property in the district, including interest on the bonds. The real meaning of the language used in section 8 is that the money to be actually expended for the work and the expenses incident to it, was to be borrowed at a rate of interest not exceeding 6 per cent. per annum, and to that end negotiable bonds were to be issued not exceeding 15 per cent. of the valuation of the real property in the district. See also sections 2, 5 and 6.

4. The proposed improvement as to the highway and bridge portion of the act is not inseparable. Section 5 vests in the commissioners the discretion to build the highways and bridge where, in their opinion, it is most practicable to "locate and end" them, and the discretion as to whether or not the bridge over Red river should be built at all.

That it was intended that the necessity for the building of the bridge should be left to the judgment of the commissioners, is made plain in section 2 and other language of the act showing that the grant of power was permissive in its nature, and not compulsory as to the building of the bridge.

OPINION

SMITH, J.

Appellant brought suit to restrain the Miller County Highway and Bridge District from proceeding with the construction of certain highways pursuant to plans adopted by said highway and bridge district under the purported authority of Act No. 153 of the Acts of the General Assembly of 1915. It was alleged in the complaint that the said district was formed for the purpose of building a bridge across Red River at a point to be selected by the commissioners between the towns of Fulton and Index, and to build a highway leading to said bridge, and other highways in connection therewith. That by the terms of said act it is provided that "the improvements herein undertaken shall not exceed 15 per cent of the value of the real property of said district, subject to improvement district assessments as ascertained by the State and county assessments." That the real property of said district amounts to only $ 4,000,000, so that the district is authorized to undertake no improvement that will cost exceeding $ 600,000, and the bridge across Red River would cost almost that sum, and after building it the district would have no funds with which to build the highways which by the terms of said act it is required to build. That said improvement was intended to be a unit, and there being no funds with which it can be constructed as such, the said district has no right to proceed with the construction of any part of said improvement. That nevertheless, the commissioners have formed plans for the building of a system of highways and have abandoned the idea of constructing such a bridge.

There were allegations in the complaint questioning the authority of the commissioners to construct the highways because the diversity of the public interests of said district was such that the roads could not be a single improvement.

The fifth paragraph of the complaint alleged that by the terms of said act the interest upon the bonds authorized to be issued is made a part of the cost of the improvement, but the commissioners have...