Smith v. State Highway Commission

• Decision Date: 28 February 1933
• Citation: 247 Ky. 816
• Parties: Smith et al. v. State Highway Commission et al.
• Court: United States State Supreme Court — District of Kentucky

247 Ky. 816

Smith et al. v. State Highway Commission et al.

Court of Appeals of Kentucky.

Decided February 28, 1933.

1. Highways. — Fiscal court's pledge, in order calling bond election, that it would expend bond proceeds for road leading from Edmonton to Monroe county line as would best connect with roads leading to Burkesville and Tompkinsville, held insufficient to constitute contract with, or pledge to, voters that proceeds would be used in construction of highway by way of Good Luck and Beaumont (Acts 1926, c. 274).

2. Highways. — Where Legislature fixes terminal points of proposed route, State Highway Commission has broad discretion in locating route between such points.

3. Highways. — If statute establishing highway provides that in reaching terminal points project shall go through certain intermediate points, commission must construct roads between such points.

4. Highways. — Where statute provides that highway, in reaching terminal points, shall go through certain intermediate points, location thereof between such intermediate points is within highway commission's discretion.

5. Highways. — Where statute required highway to be located by way of certain point, proposed route passing at point 3,700 or more feet distant from such point held not substantial compliance with statute (Acts 1926, c. 274).

6. Statutes. — New act establishing short stretch of road as part of primary highway system, but not purporting to amend old act, held not unconstitutional because not republishing old act, though new act in part changed location established by old act (Acts 1926, c. 274; Acts 1932, c. 182; Constitution, sec. 51).

Acts 1932, c. 182, the new act, was valid, in view of rule that, when act does not purport to be amendment to existing law but new act, it is unnecessary to set out or republish any part of old law that may be changed or repealed by new law, notwithstanding Constitution sec. 51, which provides that no law shall be revised or amended by reference to its title only, but so much thereof as is revised or amended shall be re-enacted and published at length.

7. Statutes. — Statute establishing short stretch of road in one county as part of primary system of state highways held not to violate constitutional provision forbidding "local" or "special" acts (Acts 1932, c. 182; Constitution, sec. 59, subsecs. 16, 29).

Statute was not unconstitutional, since road in question was made, and became, integral part in comprehensive system of primary highways constructed, owned, and maintained by state, and was thus not purely local in its nature nor matter of mere neighborhood concern, and a statute dealing with such road was therefore to be distinguished from one which would deal with what is commonly known as county road; the latter being left to exclusive control of courts of county under general laws.

Appeal from Franklin Circuit Court.

E.C. O'REAR and ALLEN PREWITT for appellants.

BAILEY P. WOOTTON, Attorney General, GARDNER K. BYERS, Assistant Attorney General, and LAWRENCE & CARTER for appellees.

OPINION OF THE COURT BY CREAL, COMMISSIONER.

Affirming.

By chapter 274, Acts of the General Assembly of Kentucky 1926, there was established as a part of the primary system of highways in this state a road from Tompkinsville by way of Rock Bridge, Cyclone, Beaumont, and Good Luck to Cedar Flat to intersect with another project at the latter point. This was later designated by the state highway commission as project No. 149.

Thereafter an election was called by the fiscal court of Metcalfe county to determine whether the county should issue and sell bonds in the sum of $125,000 for the purpose of building roads and bridges therein. Embodied in the order calling the election was a pledge upon the part of the court that, in the event it was authorized to issue and sell the bonds, it would expend the proceeds thereof in the construction of certain roads in the order mentioned, the second road designated therein being "the road leading from Edmonton to the Monroe county line as will best connect with roads leading to Burkesville and Tompkinsville." In locating that part of project No. 149, between Good Luck and Beaumont, the State Highway Commission surveyed and adopted a route through the valley of Rogers Creek, known as the "creek" or "valley" route, but later made a resurvey and adopted what is known as the "ridge" route, which does not go through Beaumont, but intersects the Glasgow-Burkesville highway three-fourths of a mile or more from that point.

J.T. Froedge and other citizens and taxpayers, who reside along or near the proposed highway, for themselves and for and on behalf of other citizens and taxpayers of the county similarly situated, instituted an action in the Franklin circuit court to enjoin the highway commission from constructing the ridge road, and to require it to adopt the valley route. As a basis for the relief asked, it was alleged that the bonds were voted on faith of the pledge by the fiscal court that the proceeds would be used to construct project No. 149 by way of Good Luck and Beaumont; and that the route adopted by the highway commission was not a substantial compliance with the statute.

The lower court denied the relief asked, but granted the plaintiffs 20 days within which to apply to a judge of this court to reinstate the injunction. Within the time fixed by the order, a motion was made before Judge Clay to grant the injunction, and all the members of the court except Judge Richardson sat with him on the hearing of the motion, and concurred in an order and memorandum opinion directing the lower court, on return of the case and upon execution of proper bond, to issue an injunction restraining the State Highway Commission, until further orders of the court, from adopting any route that did not go by way of Good Luck and Beaumont. The conclusions reached on the questions presented on the hearing as summarized in the opinion are:

"(1) There was no official action on the part of the fiscal court sufficient to constitute a contract with, or a pledge to, the voters that the proceeds of the bond sale would be used in the construction of a highway by way of Good Luck and Beaumont.

"(2) Where the Legislature fixes the terminal points of a proposed route, the state highway commission has a broad discretion in locating the route between those points. However, if the statute provides that in reaching the terminal points the project shall go through certain intermediate points, the statute cannot be ignored by the commission, but the road must be constructed between those points. However, the route and location of the road between such intermediate points is a matter within the discretion of the state highway commission, and this discretion will not be interfered with, except in a case of plain and palpable abuse.

"(3) The statute provides that the project shall go from Tompkinsville by way of Rock Bridge, Cyclone, Beaumont, Good Luck, to Cedar Flat. Beaumont is not a mere community, but is an established point. The proposed route does not go by way of Beaumont, but passes at a point 3,700 or more feet distant. In our opinion this is a departure from, and not a substantial compliance with, the statute.

"As we cannot substitute our judgment for that of the state highway commission, or otherwise control its discretion, in locating the road between Good Luck and Beaumont, the motion to grant the temporary injunction compelling the commission to adopt the valley route is overruled. The motion to restrain the adoption of the ridge route is sustained to the extent that it does not go by way of Beaumont."

At its 1932 session the General Assembly passed an act (chapter 182, Acts 1932) which, including the title, reads:

"An Act to establish as a part of the primary system of the Highways of the Commonwealth of Kentucky a road from Good Luck to the Monroe County line at or near Cyclone and authorizing the State Highway Commission of Kentucky to select and adopt the most direct and practical route between said points and repealing all acts in a conflict in the extent of such conflict.

"Be it enacted by the General Assembly of the Commonwealth of Kentucky:

"Sec. 1. That there is hereby established as a part of the primary system of State...