Rhodes v. Barton

• Decision Date: 19 May 1919
• Docket Number: 229
• Citation: 212 S.W. 333,138 Ark. 497
• Parties: RHODES v. BARTON
• Court: Arkansas Supreme Court

212 S.W. 333

138 Ark. 497

RHODES v. BARTON

No. 229

Supreme Court of Arkansas

May 19, 1919

Appeal from Crittenden Chancery Court; Archer Wheatley, Chancellor affirmed.

Decree affirmed.

Harry Spears, for appellant.

The act is unconstitutional and void because it delegated the right to the commissioners to select the roads to be improved. It usurps the jurisdiction of the county court, which is exclusive. 118 Ark. 119; 120 Id. 44. It was error to sustain the demurrer. The decree should be reversed and a decree entered here enjoining appellees as prayed.

A. B Shafer and S. V. Neelley, for appellees.

Article 7, section 28, Constitution, is not self-executing. The Legislature has power to prescribe how roads shall be built and improved. 92 Ark. 93; 122 S.W. 241; 117 Id. 544; 89 Ark. 513; 118 Id. 119; 176 S.W. 676.

The cases cited by appellant are not in point.

The Legislature can designate a road to be improved or delegate it to commissioners as an agency of the State. 125 Ark. 325 188 S.W. 822; 120 Ark. 277; 179 S.W. 486.

Act No 55, Acts 1919, expressly guards the exclusive jurisdiction of the county court and is not unconstitutional. The plans, etc., are to be approved by the county court and when the road is completed it is to still exist and be preserved in repair by the county court. The commissioners are merely agents of the county court to improve the road and keep it in repair. On the whole case the decree is right and should be affirmed.

The provisions of the act are in accordance with Acts 1911, p. 365, amending Kirby's Digest, section 7328. This act was held constitutional in 203 S.W. 260.

HUMPHREYS, J. Judge SMITH did not participate, being disqualified.

OPINION

HUMPHREYS, J.

Appellant an owner of lands in Road Improvement District No. 9 in Crittenden County, created by Act No. 55, Acts 1919, of the General Assembly of Arkansas, instituted suit in the Crittenden Chancery Court against appellees, commissioners of said district, to enjoin them from taking any steps under said act. It was alleged in the complaint that the act empowered appellees to select the roads in the district which are to be improved, which delegation of authority rendered the act void because it interfered with the constitutional jurisdiction of the county court.

Appellees filed a general demurrer to the complaint, which was sustained by the court.

Appellant declined to plead further and the complaint was dismissed for want of equity. From the decree of dismissal, an appeal has been prosecuted to this court.

It is insisted by appellant that the act in question is void because the Legislature delegated the right to the commissioners to select the roads to be improved within said district. The authority challenged as unconstitutional is conferred in section 8 of said act on the commissioners "to determine what roads within their respective districts it is most necessary to improve at the present time, and when they have determined what roads they deem it best to improve, they shall make plans for the improvement thereof, and when their plans are completed they will file the same, with a plat showing the outlines of the district and the course of the roads which they contemplate improving and accompanied by specifications giving the details of the work and an estimate of the costs thereof with the county clerk of Crittenden County. Said plans shall also be submitted to the State Highway Department, and if approved by it, shall be deemed a Federal and State Aid Highway project, and the commissioners of each of said districts shall lay the plans before the county court of ...