County Board of Highway Com'Rs v. Wilde

• Decision Date: 27 June 1942
• Citation: 163 S.W.2d 329
• Parties: COUNTY BOARD OF HIGHWAY COM'RS et al. v. WILDE, County Judge, et al.
• Court: Tennessee Supreme Court

Page 329

163 S.W.2d 329

COUNTY BOARD OF HIGHWAY COM'RS et al. v. WILDE, County Judge, et al.

Supreme Court of Tennessee.

June 27, 1942.

Appeal from Chancery Court, Madison County; DeWitt Henderson, Chancellor.

Suit by County Board of Highway Commissioners and others against A. W. Wilde, County Judge, and others, to prevent payment out of county road money for a section of road rebuilt under contract with the quarterly county court after highway commission had refused to authorize such work. From a decree dismissing the bill, both complainants and defendants prayed a special appeal and complainants perfected their appeal.

Decree modified to show that bill is sustained as one for a declaratory judgment and declaration made as indicated in opinion.

John F. Hall and J. L. Harrington, Jr., both of Jackson, for complainants.

S. J. Everett, Hughlon Akin, and Murchison & Manhein, all of Jackson, for defendants.

GREEN, Chief Justice.

This is a suit by the highway commissioners of Madison County, joined by certain citizens of that county, primarily to prevent the payment out of county road money of $5,000 for a section of road rebuilt under contract with the quarterly county court. The highway commission had previously refused to authorize this work. The county, the county judge, the trustee, and others were made defendants to the suit. A preliminary injunction was issued but on final hearing was dissolved and the bill dismissed.

Although the decree recites that the bill was dismissed at complainants' cost, the chancellor made a declaration in part favorable to complainants. Both sides excepted and each prayed a special appeal. The complainants' appeal was perfected.

A highway commission for Madison County was set up by chapter 230 of the Private Acts of 1917. The theory of the bill was that this Act gave the commission exclusive control of the Madison County roads with exclusive power to designate the roads to be opened or improved, and the exclusive power to allocate the funds available for highway purposes.

The defendants, while generally conceding the authority and powers of the highway commission in the premises, in the absence of action by the quarterly county court, answered that the latter body was authorized "to let any particular road * * * to contract" under Code § 2958 and to apply county road funds to such contract.

At the hearing below it appeared that the contract had been performed and the road accepted. At the hearing in this court, as we understood from counsel, the injunction having been dissolved, the contractor had been paid.

The chancellor decreed:

"1st. That under the bill as amended, the complainants had a right to institute this cause of action, the Court was not fully decided as to whether or not the County Board of Highway Commissioners, of Madison County, Tennessee, had a right as a Board to being said cause of action.

"2nd. That the County Court as a Quarterly County Court or otherwise, did not have a right to divert the two cent Gasoline Tax, known as Gas Tax from the State of Tennessee, and that the County Board of Highway Commissioners of Madison County, Tennessee, and no other one had any right or authority to expend said two cent Gasoline Tax, this being provided by Statute.

"3rd. The Court finds that the Bridge and Levee Tax, amounting to more than $8,000.00 a year; levied and collected by County authorities is subject to being handled and controlled by the legislation of the Quarterly County Court; and same amounting to more than $5,000.00 that went into the Budget for 1940-41 and that said County Court had the right to order expenditure from such fund, being Bridge and Levee Tax."

As heretofore stated, the decree thereupon proceeded to dissolve the injunction and dismiss the bill at complainants' cost and then recited:

"The defendants except to so much of the findings of the Court that the complainants, as brought in by amendments, were or might have been authorized to institute the suit; and the defendants further except to so much and those parts of the finding part of the decree as found that the County Court had no authority to use the two cent gas tax and holding that the County Board of Highway Commissioners `Alone had authority to spend' such two cent gas tax.

"Complainants except to so much of the findings of the Court, and the decree of the Court that holds the Quarterly County Court has any control over the Bridge and Levee Tax as levied by the Court and collected by the County authorities after same has been budgeted by the Court; and they further except, to the Court dissolving the injunction in this cause; and in dismissing the bill; and in taxing the complainants with the cost, when the Court partially decrees in favor of complainants; and prays an appeal to the next term of the Supreme Court of Tennessee at Jackson; and the Court is pleased to and doth grant said appeal; conditioned upon complainants making and filing a good and solvent cost bond in the sum of $250.00 within thirty days from this date."

The argument in this court, oral and printed, has taken a rather wide range but our decision is necessarily limited by the condition of the record.

The transcript shows that the appeal of defendants was not perfected and their assignments of error can not be considered. This is so because the complainants' appeal, which was perfected, was a special appeal.

Unless chapter 230 of the Private Acts of 1917 effected an implied repeal of Code § 2958 the quarterly county court was clearly within its right in letting this contract for the road work in controversy. There is no implied repeal of an earlier Act by a later Act unless there is an irreconcilable conflict between the two. Stonega Coke, etc., Co. v. Southern Steel Co., 123 Tenn. 428, 131 S.W. 988, 31 L.R.A., N.S., 278; Crockett County v. Walters, 170 Tenn. 337, 95 S.W.2d 305.

Code § 2958 is taken from chapter 1 of the Acts of 1891 (the general road law), being section 45 of that Act and reads as follows: "The quarterly county court is empowered to let any particular road or road section to contract, in which event the laws applicable to overseers of public roads shall apply to such contractors in working the hands assigned to such roads; and said hands so assigned to work their time on such roads shall bear the same relation to such contractor as they would to an overseer. In case the quarterly county court shall elect to have any road or roads built or worked by special contract, said court shall specify and set out on its minutes, or by written contract with the contractor, the nature and character of the work to be done and extent of the same, and the county judge or chairman of the county court and the commissioners of such road district shall constitute a board for letting such work to contract. The said contractor shall execute a bond, payable to said board, for the use of the county, for the faithful discharge of his contract; and taxes due for road purposes from such road district, and the labor performed by the hands assigned to such...