Cowan v. Thompson

• Court: Arkansas Supreme Court
• Writing for the Court: MCHANEY, J.
• Citation: Cowan v. Thompson, 9 S.W.2d 790, 178 Ark. 44 (Ark. 1928)
• Decision Date: 15 October 1928
• Docket Number: 185
• Parties: COWAN v. THOMPSON

9 S.W.2d 790

178 Ark. 44

COWAN v. THOMPSON

No. 185

Supreme Court of Arkansas

October 15, 1928

Appeal from Mississippi Chancery Court, Osceola District; J. M Futrell, Chancellor; reversed on cross-appeal; affirmed on appeal.

Judgment affirmed in part, reversed and remanded in part.

MCHANEY J. KIRBY and MEHAFFY, JJ., dissent.

OPINION

MCHANEY, J.

Counsel for appellees has correctly stated the case and the issues as follows: "The Luxora & Little River Road Improvement District No. 2 was created by orders of the county court under the Alexander Road Law, many years ago, and the limit of its right to issue bonds to the extent of 30 per cent. of the assessed value, as provided by the Alexander Road Law, was raised to 50 per cent. of the assessed value by special act No. 253, passed by the General Assembly in 1920. Bonds were issued amounting to approximately 50 per cent. of the assessed value of real property in the district, and the proceeds thereof applied toward the construction of about forty miles of highway within said district, some of which were only graded dirt roads, while others were covered with a layer of silica or gravel. The dirt roads, on account of the peculiar condition of the soil, have deteriorated to the point where they are impassable in wet weather. The silica roads, which are constantly traveled, have deteriorated to the point where they are rough and full of chuck-holes. The original district had no authority to issue additional bonds. To remedy this unfortunate condition of the property owners, R. E. Lee Wilson and many others in the district petitioned the county court to create a maintenance and repair district under C. & M. Digest, §§ 5463 to 5488. The petition of the property owners was granted, and the district was created and organized. On account of the peculiar condition of the soil, the commissioners concluded that it would be a waste of money to attempt to repair the dirt roads by merely smoothing over the surface. Likewise they were of the opinion that it would be necessary, in order to put the silica roads in a good state of repair, to place thereon a thin coat of warrenite. Cowan, a property owner in the district, filed a bill attacking the plans of the commissioners, on the following grounds:

"(1) That the law passed in 1919 providing for the organization of maintenance and repair districts was repealed by the Martineau Act. (2) That a district organized under the maintenance and repair act has no right to issue bonds for any purpose. (3) That the maintenance and repair act applied to proceedings commenced in the year 1919 only. (4) That a maintenance and repair district was bound by the plans of the original district, and could use no material for repairing and maintaining roads other than the material specified and provided for in the plans of the original district."

The lower court sustained the latter contention. In other words, the lower court held that a dirt road could be repaired only with dirt, although the plaintiff concedes that the application of a thin layer of silica would be better and more economical in the long run, and that a silica road could be repaired only with silica, although the complaint concedes that the application of a thin layer of warrenite to the silica road would be better and more economical in the long run.

Both sides appealed.

1. Appellant first says that the act of February 11, 1919, §§ 5463-5488, C. & M. Digest, the first section of which is as follows: "Improvement districts may be formed for the purpose of keeping in repair roads and bridges now or hereafter improved by road improvement districts, created either by special act or under general laws," was repealed by act 11 of 1927.

The complaint alleges, with reference to the roads proposed to be repaired, that "none of said roads have been taken over for construction, repair or maintenance by the State Highway Department." The Martineau Act, act No. 11 of 1927, has to do only with State highways. Taylor v. Rogers, 176 Ark. 156, 2 S.W.2d 56. In that case we said: "There is no prohibition in the several acts against the building of county roads, or roads not a part of the State highway system, under the Alexander Road Law, and we do not understand that the Alexander Road Law has been repealed by the provisions of the Acts of 1927." Not only was the act under consideration not repealed by the Martineau Act of 1927, but we think it will serve a useful purpose in the repair and maintenance of roads and bridges not forming a part of the State highway system, and which were originally constructed by road improvement districts. The chancellor correctly held there was no repeal.

2. Appellant next says that, because the form of notice prescribed by §§ 5469, C. & M. Digest, reads "on the .... day of . ... 1919," the act was only in force during that year. Section 5463 above quoted clearly refutes that idea and conclusively shows that it was a mere clerical error or misprision of the scrivener in writing 1919 instead of 19..... Again the chancellor correctly so held.

3. Neither is there any merit in appellant's claim that, although the district may "issue negotiable evidences of indebtedness," as provided by § 5468, C. & M. Digest, it cannot issue bonds maturing over a period of years. This court has recently decided to the contrary, and the chancellor correctly so held. Ark. State Highway Com. v. Kerby, 175 Ark. 652, 300 S.W. 377.

4. The appellees contend that the court erred in holding, as it did in effect, that the dirt roads could only be repaired with dirt and the silica roads only with silica, the language of the decree in this regard being: "They are perpetually enjoined from graveling the graded dirt roads and from putting a warrenite surface on silica roads, and no bonds can be issued for that purpose." We think the court erred in this regard, and placed too narrow a construction on the act. A careful reading of §§ 5468 and 5469, C. & M. Digest, appears to us to be conclusive of this fact. We will not set them out, as they are too long, but the former defines the powers of the commissioners, and makes it their duty to keep in repair the roads constructed by the original district, and to do this they are given broad powers. "Before doing any work of improvement on any of said roads," they are required to get the "approval of the county court of the work they propose to do." By the latter sectio...