McLeland v. Marshall County

• Decision Date: 18 December 1924
• Docket Number: 36245
• Citation: 201 N.W. 401,199 Iowa 1232
• Parties: W. E. MCLELAND et al., Appellants, v. MARSHALL COUNTY et al., Appellees; ALBERT L. NOLTA et al., Interveners, Appellants
• Court: Iowa Supreme Court

201 N.W. 401

199 Iowa 1232

W. E. MCLELAND et al., Appellants, v. MARSHALL COUNTY et al., Appellees; ALBERT L. NOLTA et al., Interveners, Appellants

No. 36245

Supreme Court of Iowa, Des Moines

December 18, 1924

OPINION ON REHEARING APRIL 10, 1925.

Appeal from Marshall District Court.--JAMES W. WILLETT, Judge.

ACTION to enjoin the board of supervisors of Marshall County from selling $ 800,000 of bonds authorized at a special election held on August 14, 1923, and from hard-surfacing the primary road system in Marshall County; and enjoining improvement of any portion of the primary road system in said county. Involved is the right of resubmission to the voters of the county of the question of hard-surfacing, following affirmative action on that proposition at a special election held on July 14, 1919. Also involved is the question of whether the Primary Road Law, Chapter 237 of the Acts of the Thirty-eighth General Assembly, is contrary to certain provisions of the Constitution of the state of Iowa; and also whether said Primary Road Law is contrary to Section 1 of the Fourteenth Amendment to the Constitution of the United States. Other issues are presented. Facts are set forth in opinion. From decree and judgments denying relief and dismissing petitions, plaintiffs and interveners appeal.

Affirmed.

F. E Northup, H. C. Lounsberry, and Aymer D. Davis, for appellants.

C. H E. Boardman, for interveners, appellants.

E. N. Farber and Roy L. Pell, for appellees.

Ben J. Gibson, Attorney-general, and Herbert A. Huff, Assistant Attorney-general, Amici Curiae.

ARTHUR, C. J. EVANS, PRESTON, STEVENS, FAVILLE, DE GRAFF, and VERMILION, JJ., concur.

OPINION

ARTHUR, C. J.

I.

There is no substantial dispute in the facts relating to any issue in the case. The questions presented are of law, and call for the interpretation and construction of statutes. The questions are many. To avoid repetition, we shall not here set forth the issues, but will later state the several questions involved, when considering and discussing them.

II. A brief recital of legislation pertaining to roads and proceedings in Marshall County will be helpful. In 1916, Congress passed an act providing for Federal aid to the states in the construction of rural post roads, and appropriated $ 75,000,000 for that purpose, and provided for furnishing certain amounts thereof during the years 1917, 1918, 1919, 1920, and 1921. Act of July 11, 1916, Chapter 241, 39 Statutes at Large 355. In February, 1919, Congress passed an act amending the act of July, 1916, and appropriating $ 50,000,000 for the year 1919, making it available immediately; $ 75,000,000 for the year ending June 30, 1920; and $ 75,000,000 for the year ending June 30, 1921. In November, 1921, Congress passed an act amending the act of July 11, 1916, and appropriating $ 75,000,000 for the year ending June 30, 1922. In June, 1922, Congress passed an act for the purpose of carrying out the provisions of the act of July 11, 1916, and appropriated $ 50,000,000 for the year ending June 30, 1923; $ 65,000,000 for the year ending June 30, 1924; and $ 75,000,000 for the year ending June 30, 1925.

In April, 1917, the state of Iowa, by Chapter 249 of the Acts of the Thirty-seventh General Assembly, accepted the proposal of the United States government, as set forth in the act of Congress of July 11, 1916, and assented to the provisions of the act of Congress. By said act, the state pledged its good faith for the construction and maintenance of rural post roads, and caused to be made available funds sufficient to equal the sum apportioned to the state of Iowa by the United States government. By the provisions of said act, the state funds were provided from the motor vehicle road fund, which was created by funds raised under the provisions of Chapter 2-B, Title VIII, Code Supplement, 1913.

Without repealing Chapter 249 of the Acts of the Thirty-seventh General Assembly, the Iowa legislature enacted Chapter 237 of the Acts of the Thirty-eighth General Assembly, creating primary and secondary road systems, and providing for the primary road fund, which embraced the fund created by Chapter 249 of the Acts of the Thirty-seventh General Assembly, and all additional and further Federal aid road funds, and all funds derived from year to year by the state under acts regulatory of motor vehicles, commencing with and including all fees for the year 1920, with certain exceptions. The highway commission had been previously created by the thirty-fifth general assembly and the thirty-sixth general assembly.

Pursuant to the Federal and state legislation, at an election held in July, 1919, the question of hard-surfacing the primary road system of Marshall County was submitted and carried. At a special election held on August 14, 1923, issuance of bonds in the amount of $ 800,000, for the purpose of hard-surfacing the primary road system of the county, was authorized.

On September 11, 1923, a petition of electors was filed, requesting that a special election be called for submission of the identical question which was voted on in 1919, namely: "Whether hard-surfacing shall be done on the primary road system, or any portion thereof, in said county of Marshall."

The petition was denied, and this suit was instituted.

III. The constitutionality of the primary road statutes is challenged. We deem it advisable to consider these propositions first. Attacks upon the statutes as to their constitutionality, in substance, are:

(1) They delegate legislative power to the highway commission.

(2) They pledge the credit of the state to pay the debts of the county, and the state assumes and becomes responsible for the debts of the county.

(3) The statutes violate the Constitution of the United States and of the state of Iowa, in that they take property without just compensation, or due process of law, and deny to plaintiffs and interveners the equal protection of the law.

Section 2 of Chapter 237 of the Acts of the Thirty-eighth General Assembly reads:

"The state highway commission is empowered, on behalf of the state, to enter into any arrangement or contract with, and required by, the duly constituted Federal authorities, in order to secure the full co-operation of the government of the United States, and the benefit of all present and future Federal allotments in aid of highway construction, reconstruction, improvement or maintenance. The good faith of the state is hereby pledged to cause to be made available each year, sufficient funds to equal the total of any sums now or hereafter apportioned to the state for road purposes by the United States government for such year and to maintain the roads constructed with said funds. The board of supervisors of each county is empowered to enter into any arrangement or contract with, and required by, the state highway commission, in order to fully carry into effect the provisions of this act."

Further defining the duties of the commission, Section 1527-s2, Code Supplemental Supplement, 1915, reads:

"The duties of said commission shall be:

"1. To devise and adopt plans of highway construction and maintenance suited to the needs of the different counties of the state, and furnish standard plans to the counties in accordance therewith.

"2. To disseminate information and instruction to county supervisors and other highway officers, answer inquiries and advise such supervisors and officers on questions pertaining to highway improvements, construction and maintenance and of reasonable prices for materials and construction.

"3. To keep a record of all important operations of the highway commission, and to annually report the same to the governor by the first day of January, which report shall be printed as a public document; but the summary report of the county highway engineers shall be reported not later than February first.

"4. To appoint such assistants as are necessary to carry on the work of the commission, define the duties and fix the compensation of each, and terminate at will the terms of employment of all employees, provide for necessary bonds, and fix the amount of same.

"5. To make investigation as to conditions in any county, and to report any violation of duty, either of commission or omission, to the attorney-general, who shall take such steps as are deemed advisable by him to correct the same.

"6. The state highway commission shall have general supervision of the various county and township officers named in this act in the performance of the duties here enjoined, and shall have full power and authority to enforce the provisions of this act.

"7. To make surveys, plans and estimates of cost for the elimination of danger at railroad crossings on highways and streets, and to confer with local officials, railroad officials and the Iowa railroad commission in the elimination of such dangers at railroad crossings.

"8. The state highway commission shall assist the county board of supervisors and the attorney-general in the defense of patent suits relative to road or bridge construction, make surveys for the state board of control when so requested, and perform all other duties required by law."

It may be conceded, as contended by appellants, that the highway commission is an administrative body only, and cannot properly exercise legislative power. The inquiry is, then, do the statutes in question attempt to confer legislative power upon the commission? We think, upon careful examination and analysis of the statutes in question, that they do not lend support to the position of appellants that they confer legislative duties and power upon the commission. The exact line of demarcation between legislative power and administrative duties, in some cases, is not easily...