Moore v. Polsgrove, County Judge

• Decision Date: 04 March 1927
• Parties: Moore v. Polsgrove, County Judge, et al.
• Court: United States State Supreme Court — District of Kentucky

219 Ky. 410

Moore v. Polsgrove, County Judge, et al.

Court of Appeals of Kentucky.

Decided March 4, 1927.

1. Statutes. — The word "or" may be substituted for the word "and," when necessary to make the statute express the true legislative intent as gathered from conduct and circumstances attending its enactment.

2. Highways. — Acts 1926, c. 281, establishing and designating state highway, held to create a project comprising alternative routes to be determined by state highway commission and its engineer, in accordance with Ky. Stats., Supp. 1926, section 4356t-3, although requiring substitution of word "or" for "and" in provision

designating route, in view of inability to establish route as described therein.

3. Injunction. — Where neither order of fiscal court, calling for submission to voters of bond issue, nor question submitted to voters required spending any part of money to be raised by bond issue on particular state highway project, injunction will not lie to require expenditure of any part of money on certain state project.

4. Highways. — Where bond issue was passed for use in construction of state primary highway projects, proceeds cannot be devoted to construction of highways which are not a part of state system, notwithstanding that particular project was named as state project at time bond issue was passed, since order calling for election did not contemplate money to be spent in construction of road wherein state would lend no aid.

Appeal from Franklin Circuit Court.

GUY H. BRIGGS for appellant.

CHAS. H. MORRIS for appellees.

OPINION OF THE COURT BY JUDGE DIETZMAN.

Affirming.

Among the numerous road projects established by the General Assembly of 1924, is the following, found in chapter 168 of the Acts of that year:

"That there be and is hereby established as a part of the primary system of public roads in the commonwealth the following route between Frankfort, Franklin county, Kentucky, to New Castle, Henry county, Kentucky, county seats of said respective counties, same to be known as project 64 1/2, as follows, to wit:

"Project 64 1/2. From Frankfort to Honeysuckle, to Bald Knob, to Bailey's Mill to Pleasant View, all in Franklin county, then to DeFoe, to Pleasureville, to New Castle, latter named in Henry county.

"Said road to be established and maintained as provided in chapter 17, Acts of 1920, and entitled to all benefits presented therein."

At its 1926 session the General Assembly passed the following Act, which is chapter 261 of the Acts of that session:

"Changing that chapter 168, page 514 Acts of the General Assembly of Kentucky passed at its 1924 session, be and the same is hereby amended by striking out the word `Honeysuckle,' and inserting in lieu thereof the words `Bryant's schoolhouse,' so that said act as amended shall read as follows, to wit:

"`Project 64 1/2, from Frankfort to Bryant's schoolhouse, thence to Bald Knob, thence to Bailey's Mill, thence to Pleasant View, all in Franklin county, Kentucky, then to DeFoe, thence to Pleasureville and thence to New Castle, the last two being in Henry county.'

"The said project to be established and maintained as provided in chapter 17, Acts 1920, and when established be entitled to all the benefits provided therein."

The title to this Act reads:

"An Act amending chapter 168 of the Session Acts of 1924, being entitled, `An Act relating to public roads.'"

In the light of these two acts, it cannot be doubted that so far as project No. 64 1/2 is concerned, the route now goes by way of Bryant's schoolhouse and not by way of Honeysuckle. Chapter 261 of the Acts of 1926 specifically amends chapter 168 of the Acts of the 1924 session, and, by way of such amendment, it specifically states that the word "Honeysuckle" is to be stricken from the described route known as project No. 64 1/2, and the words "Bryant's schoolhouse" are to be substituted therefor. There is nothing left here for construction. It is perfectly plain that the Legislature meant to abandon the Honeysuckle route and to adopt in lieu thereof the Bryant schoolhouse route.

At the same 1926 session the General Assembly also passed the following act, which is chapter 281 of the Acts of that session:

"That the road leading from Frankfort, Kentucky, via Honeysuckle and Bryant schoolhouse in Franklin county; thence via Jacksonville and Elmburg in Shelby County, via Pleasureville in Henry county and New Castle, the county seat of Henry county, approximately 25 miles in length, be and the same is hereby established and designated as a part of the primary system of state highways of the commonwealth of Kentucky, to be known as State primary road project No. —."

Before considering this act, a brief description of the geography of the region covered by the various road acts we have quoted herein is desirable. Honeysuckle lies in a northwesterly direction from Frankfort. The road described by project No. 64 1/2 and that described by chapter 281 of the Acts of 1926 is the same for a distance of some 3 miles from Frankfort. As this road leaves Frankfort, it bears in a northwesterly direction. About 3 miles out from Frankfort the road forks. The right-hand fork, bearing north a little by west, runs along Stony creek until it comes to what is known as the Bald Knob high school. This fork passes through Honeysuckle. The left-hand fork bears in a decidedly northwesterly direction until it comes to Bryant's schoolhouse, which is located on top of a ridge about 2 miles, as the crow flies, in a fairly westerly direction from Honeysuckle. There is no road from Honeysuckle to Bryant's schoolhouse, nor is it practicable to build one between the two places on account of the conditions of the topography of the country. There is no direct road from Bryant's schoolhouse to Bald Knob high school, but state road project No. 64 1/2 contemplated the building of a road along the top of the ridge running from Bryant's schoolhouse in a northeasterly direction to Bald Knob, which road, if constructed, would resemble in a general way the curved portion of a hockey stick. There is a road, however, which leads due west from Bryant's schoolhouse for a little over a mile, then turns north for about 2 miles where it joins a road which runs due west from Bald Knob high school. After these two roads thus join they run in a westerly direction towards Jacksonville. State project No. 64 1/2, above referred to, after it leaves Bald Knob high school, runs in a due northerly direction to Bailey's Mill, thence in a northwesterly direction to Pleasant View, thence in a westerly direction to DeFoe.

From this statement, it is plain that the project created by chapter 281 of the Acts of 1926, to which no number was given by the Legislature, is a distinct project from that of No. 64 1/2, although in some part it uses a portion of the same route. However, the chapter 281 of the Acts of 1926 presents a troublesome question because it describes, in part, the route as "the road leading from Frankfort via Honeysuckle and Bryant's schoolhouse." Now there is and was at the time of the passage of this act no road leading from Frankfort via Honeysuckle and Bryant's schoolhouse, and, as stated above, it was not and is not practicable to build a road connecting these two points. In the case of Felts v. Edwards, 181 Ky. 287, 204 S.W. 145, we held that to ascertain the intention of the Legislature it is proper to look to the purpose which it had in view in enacting the statute, the subject matter, and the entire context of the statute, and the consequences of its enactment. In the case of James v. United States Fidelity & Guaranty Company, 133 Ky. 299, 117 S.W. 406, we held that the word "and" may be substituted for the word "or" when necessary to make a statute express the true legislative intent as gathered from the context and the circumstances attending its enactment. By a parity of reasoning, the word "or" may be substituted for the word "and," when necessary to make a statute express the true legislative intent as gathered from the context and the circumstances attending its enactment. If we substitute the word "or" between the words "Honeysuckle" and "Bryant's schoolhouse" in chapter 281 of the Acts of 1926, instead of the word "and" as now appears, we undoubtedly arrive at the true legislative intent. After the road running from Frankfort forks about 3...