State Highway Commission v. Mitchell
Decision Date | 15 December 1931 |
Citation | 241 Ky. 553 |
Parties | State Highway Commission v. Mitchell et al. |
Court | United States State Supreme Court — District of Kentucky |
4. Constitutional Law — Highways. — Law changing route of state primary highway project held not invalid as retroactive and impairment of vested rights.
5. Constitutional Law. — Legislative power is limited by supreme law and may not affect, impair, or destroy vested rights.
6. Highways. — Agreement between county and state for expenditure of county and state funds on state primary highway project held valid.
7. Highways. — County, having performed part of agreement with state for expenditure of funds on state primary highway project, was entitled to consultation as to order in which whole fund would be expended.
Agreement between county and state provided for each to put up a certain sum of money for expenditure on state primary system of roads pursuant to which county had paid money to state highway commission, which money had been expended in accordance of agreement without expenditure of any part of the money to be furnished by state for use within county.
8. Highways. — Injunction requiring highway commission to build road over designated route without limiting expenditure, in accordance with agreement between county and state furnishing funds therefor, held too broad.
Appeal from Franklin Circuit Court.
J.W. CAMMACK, Attorney General; C.E. SMITH, Assistant Attorney General; C.C. WILLIAMS; and JAMES DENTON for appellant.
HIRAM OWENS, VIRGIL SMITH, and C.R. LUKER for appellees.
Reversing.
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:
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 chaper 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.
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 he Legislature had 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....
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