England v. State Highway Commission

• Decision Date: 07 May 1928
• Docket Number: 428
• Citation: 6 S.W.2d 23,177 Ark. 157
• Parties: ENGLAND v. STATE HIGHWAY COMMISSION
• Court: Arkansas Supreme Court

6 S.W.2d 23

177 Ark. 157

ENGLAND v. STATE HIGHWAY COMMISSION

No. 428

Supreme Court of Arkansas

May 7, 1928

Appeal from Lonoke Chancery Court; Frank H. Dodge, Chancellor affirmed.

Judgment affirmed.

Chas A. Walls and Ben B. Williamson, for appellant.

Reed & Beard, H. W. Applegate, Attorney General, Claud Duty, Assistant, and Coleman & Riddick, for appellee.

OPINION

SMITH J.

Appellant brought this suit to enjoin the State Highway Commission from entering upon and appropriating a portion of her farm, and for her cause of action alleged that she was the owner of a tract of land in Lonoke County through which a section of a State highway ran. That, on October 29, 1927, the county court of Lonoke County entered an order widening, extending and changing the right-of-way of said road, in doing which three acres of her land were appropriated. This order was made at the request of the State Highway Commission, and, pursuant thereto, certain persons under contract with the Highway Commission are about to enter upon and take possession of said land, which was alleged to be of the value of four thousand dollars. It was alleged that, inasmuch as the road which the Highway Commission was about to widen and straighten was a part of the State highway system, the county court was without jurisdiction to make the order condemning plaintiff's land.

The order of the county court, which was made an exhibit to the complaint, recited the facts to be that the proposed changes in the road are practicable and will be for the best interest of the county, and are of sufficient importance to the public to warrant the payment of damages, if any, for the land taken. It was also alleged that the county court was without jurisdiction to make the order for the proposed changes in the road or to allow a claim against Lonoke County for the damages occasioned thereby.

In the answer filed by the Highway Commission it was admitted that the road which it was proposed to widen and straighten was a part of the State highway system, and that the order was made by the county court at the request of the commission, and it was denied that the county court was without jurisdiction to make the order or to allow a claim covering the damages which the execution of the order would occasion. It was alleged that Lonoke County had sufficient funds appropriated for roads and bridges available to pay plaintiff for the additional right-of-way which the Highway Commission was about to use and the damages incident to such taking of her property.

A demurrer to the answer was filed and overruled and the cause was dismissed, and the plaintiff has appealed.

The order of the county court was made under the authority of § 69 of act No. 5 of the Acts of 1923 (Acts 1923, Special Session, page 84), commonly called the Harrelson Law, and the question for decision is whether that section conferred jurisdiction on the county court to make the order under which the Highway Commission is about to appropriate the plaintiff's land, in view of later legislation on the subject.

It is very earnestly insisted that this § 69 has been repealed by act No. 11 of the Acts of 1927 (Acts 1927, page 17), commonly called the Martineau Road Law, and by act No. 116, passed at the same session of the General Assembly (Acts 1927, page 352).

The argument in support of this contention is that § 1 of the Martineau Road Law declares it to be the policy of the State to take over, construct, repair, maintain and control all the public roads in the State comprising the State highways as defined in that act. Section 3 of the same act provides that "All roads of the road districts referred to in this section are hereby taken over by the State, but only such portions of said roads which are now or may hereafter be embraced in the State highway system shall be maintained by the State." By § 4 of the same act it is made the duty of the Highway Commission to construct the roads in the State highway system which are not now constructed, the work of construction to be pushed as rapidly as funds are available for that purpose.

It is further insisted that § 69 of the Harrelson Road Law has been repealed by act No. 116 of the Acts of 1927, supra, § 5 of which provides that "The State's right of eminent domain may be exercised by the State Highway Commission in the same manner as in the case of railroads, telegraph and telephone companies for the purpose of condemning land for highways, bridges and their approaches, for securing building material, and for any other use which said commission may, under the laws of this State, require property for the carrying out of enterprises intrusted to its supervision, but without the necessity of making a deposit of money before entering into possession of the property condemned."

It is not contended that either act 116, from which we have just quoted, or the Martineau Road Law expressly repeals § 69 of the Harrelson Road Law, but it is insisted that there is an implied repeal, resulting from the repugnancy between those statutes.

It is pointed out, in support of this argument, that it was held by this court, in the case of Connor v. Blackwood, 176 Ark. 139, 2 S.W.2d 44, that the effect of the legislation passed at the 1927 session of the General Assembly was to give the Highway Commission the right of eminent domain in the construction of State highways, and that the exclusive original jurisdiction of the county courts extends only to county roads and county bridges, and that the county courts do not have exclusive original jurisdiction over State roads and State bridges, and therefore the Highway Commission might condemn rights-of-way for State highways independently of the county courts. It was not held in that case, however, nor has it been held in any other case, that § 69 of the Harrelson Road Law has been repealed. No act passed at the 1927 session of the General Assembly professes to repeal § 69 of the Harrelson Road Law, and no canon of construction has been more uniformly followed than the one that repeals by implication are not favored.

In one of the latest cases on the subject, that of Ouachita County v. Stone, 173 Ark. 1004, 293 S.W. 1021, we quoted from the slightly earlier case of State v. White, 170 Ark. 880, 281 S.W. 678, as follows:

"In a recent decision we undertook to cover this subject in the following statement: 'It is a principle of universal recognition that the repeal of a law merely by implication is not favored, and that the repeal will not be allowed unless the implication is clear and irresistible, but there are two familiar rules or classifications applicable in determining whether or not there has been such repeal. One is that, where the provisions of two statutes are in irreconcilable conflict with each other, there is an implied repeal by the later one, which governs the subject, so far as relates to the conflicting provisions, and to that extent only. * * * The other is that a repeal by implication is accomplished where the Legislature takes up the whole subject anew and covers the entire ground of the subject- matter of a former statute, and evidently intends it as a substitute, although there may be in the old law provisions not embraced in the new' (Citing cases)." See also Cordell v. Kent, 174 Ark. 503, 295 S.W. 404.

We think it will appear from a consideration and comparison of the 1927 road legislation with § 69 of the Harrelson...