State Highway Com'n v. Mitchell

• Decision Date: 15 December 1931
• Citation: 44 S.W.2d 533,241 Ky. 553
• Parties: STATE HIGHWAY COMMISSION v. MITCHELL et al.
• Court: Kentucky Court of Appeals

44 S.W.2d 533

241 Ky. 553

STATE HIGHWAY COMMISSION v. MITCHELL et al.

Court of Appeals of Kentucky

December 15, 1931

Appeal from Circuit Court, Franklin County.

Action by Harve Mitchell and others against the State Highway Commission. Judgment for plaintiffs, and defendant appeals.

Reversed with directions.

J. W Cammack, Atty. Gen., C. E. Smith, Asst. Atty. Gen., C. C Williams, of Mt. Vernon, and James Denton, of Somerset, for appellant.

Hiram Owens, of Barbourville, Virgil Smith, of Somerset, and C. R Luker, of London, for appellees.

HOBSON C.

For many years before 1924 there had been two routes for the travel between Somerset and London. One known as the southern route by way of Rockcastle Springs, and the other known as the Swiss Colony or northern route. Chapters 197 and 210 of the Acts of 1924 are in these words:

"That there is hereby added to the State primary system of roads the route from Somerset in Pulaski county to London in Laurel county, by way of Ruth, Dykes, Mt. Victory and Rockcastle Springs, and the same to be known as project No. 24 1/2." Acts 1924, p. 534.

"There shall be added to the primary system of State highways as defined in section 5 of the Acts as provided in chapter 17 of the Acts of the General Assembly of 1920, the following project:

From London, Laurel County to Somerset, Pulaski County." Acts 1924, p. 543.

The state highway commission is authorized by statute to determine the order in which the roads in the system shall be constructed. Acting upon the ground that both acts were in force and that by the second it was authorized to locate the road as it thought best, if it did not then improve the road set out in the first act, the state highway commission surveyed and was taking steps to build a road on the Swiss Colony or northern route under the second act and not the southern route set out in the first act. After this a new state highway commission was appointed, who approved the action taken by the former board which had been approved by the federal aid engineer, who had agreed to contribute to the building of the road on this route, but had not agreed to contribute to the building of the road on the southern route. Appellees, who were property owners in Pulaski county and in Laurel county, and directly affected, brought this action to enjoin the state highway commission from building the road on the northern route. The issues were made up. Voluminous proof was taken and on final hearing the circuit court entered this judgment:

"It is the opinion of the court that road route called in the record the northern route or Swiss Colony route and the route adopted by the defendants and over which they located the road to be constructed connecting the City of Somerset in Pulaski county with the City of London in Laurel County as a primary road or highway in the primary system of highways in Kentucky, is not one of the routes or projects on or over which one of the primary roads of the state can be located or constructed, and is not a route included in the state highway system of primary roads connecting the said two county seats or cities or at all, and that the order of the defendant, State Highway Commission, entered on its records on December 11, 1928, or at any other time, was entered without authority of law, and the action of the said Commission in adopting and substituting said route for the route fixed by the legislature or approving the location of the said road on said route was not authorized by law and was without any authority therefor and is null and void and should be cancelled and set aside."

"It is further adjudged that when the primary road connecting the City of London in Laurel county and the City of Somerset in Pulaski county is constructed by the State Highway Commission it shall be constructed on and over the route No. 24 1/2 or 24A, known as Sublimity Route, as fixed and located by legislative acts, running from Somerset, Kentucky to London, Kentucky, by way of Ruth, Dykes, Mt. Victory and Rockcastle Springs to London and on the reverse from London to Somerset, allowing and permitting such deviations as are necessary for proper location and construction."

The defendant appeals, insisting that the two acts were not properly construed by the circuit court. On the other hand, the appellees insist that the two acts must be read together, and that chapter 197 simply made that definite which was left indefinite in chapter 210. Chapter 197 was House Bill 562, passed the House on March 15, 1924, and passed the Senate March 18, 1924. Chapter 210 was Senate Bill 192, it passed the Senate February 14, 1924, and passed the House March 7, 1924. The House Bill starts the road from Somerset and defines the route. The Senate Bill starts it from London and names no intermediate points. When the judgment in this case was rendered the Legislature of 1930 was in session, and soon thereafter, and before anything had been done under the judgment, it passed this act:

"1. That there is hereby established as a part of the Primary System of State Highways of the Commonwealth of Kentucky a road running from London in Laurel county, by way of the Swiss Colony Route as located by the State Highway Department and approved by the State Highway Commission on December 11th, 1928, to Somerset in Pulaski county.

2. The construction, maintenance, supervision and control of said road shall be subject to all the terms and conditions set out and provided for in chapter 17 of the Acts of the General Assembly of 1920, establishing and creating a primary system of state highways." Acts 1930, p. 838, c. 427.

This controversy had been going on for some time before the General Assembly met, and the judgment herein was rendered while the Assembly was in session. The courts take judicial knowledge of the acts of the General Assembly. The act of 1930 added the northern route to the primary system and gave the commission the authority to build a road on the northern route, and removed the objection made in this suit that the northern route was not in the primary system. Under that act the commission now has authority to build a road on the northern route. The act of 1930 was plainly intended to clarify the meaning and effect of the two acts passed in 1924.

The injunction in this case mandatorily requires the state highway commission to build this road on the southern route whenever it undertakes its construction. Whether the trial court was justified in requiring the highway commission to construct this road on the southern route, as the statutory situation existed under the two acts of 1924, need not now be determined, because plainly the court could not preclude the highway commission from constructing a road on some route other than the southern route, should it thereafter be so authorized by the Legislature. Therefore to the extent that the injunction precluded the highway commission from ever thereafter building the road other than on the southern route, it was too broad. By the act of 1930 the Legislature has authorized the highway commission to build a road between London and Somerset on the northern route. It is settled that a vote of the people of a county authorizing the issuance of bonds for the construction of roads and bridges as state primary highway projects included such roads thereafter designated as well as those in existence at the time. Mercer County Fiscal Court v. Slaughter, 234 Ky. 686, 28 S.W.2d 986.

But it is argued that the act of 1930 was invalid because it was retroactive and impaired vested rights. The argument assumes a fact that does not exist.

The addition of new roads to the primary system does not impair a vested right. Indeed, the abolition of a road is within the power of the state. Bradbury v. Walton, 94 Ky. 167, 21 S.W. 869, 14 Ky. Law Rep. 823; Moore v. Polsgrove, 219 Ky. 410, 293 S.W. 965; Ill. Cent. R. R. Co. v. Ward, 237 Ky. 478, 35 S.W.2d 863. Obviously no taxpayer of the counties involved could complain of additional roads being built in those counties.

It is an accepted principle of constitutional law that legislative power is limited by the supreme law and may not affect impair, or destroy rights of parties litigant vested before the legislation is enacted. Gaines v. Gaines, 9 B. Mon. 295, 48 Am. Dec. 425; Cabell v. Cabell, 1 Metc. 319; Hedger v. Rennaker, 3 Metc. 255; Allison v. L., H. C. & W. Ry. Co., 9 Bush, 247; Id., 10 Bush, 1; Thweatt v. Bank of Hopkinsville, 81 Ky. 1; Norman v. Boaz, 85 Ky. 557, 4 S.W. 316, 9 Ky. Law Rep. 127; Marion County v. L. & N. R. Co., 91 Ky. 388, 15 S.W. 1061,...