Wimberly v. Road Improvement Dist. No. 7 in Polk County

• Court: Arkansas Supreme Court
• Writing for the Court: Humphreys
• Citation: Wimberly v. Road Improvement Dist. No. 7 in Polk County, 255 S.W. 556 (Ark. 1923)
• Decision Date: 12 November 1923
• Docket Number: (No. 246.)
• Parties: WIMBERLY v. ROAD IMPROVEMENT DIST. NO. 7 IN POLK COUNTY.

255 S.W. 556

WIMBERLY v. ROAD IMPROVEMENT DIST. NO. 7 IN POLK COUNTY.

(No. 246.)

Supreme Court of Arkansas.

November 12, 1923.

Appeal from Polk Chancery Court; Jas. D. Shaver, Chancellor.

Action by W. M. Wimberly against the Road Improvement District No. 7, in Polk county. From a decree sustaining the validity of the organization, but enjoining the Commissioners from making the improvement without advertising for bids, both parties appeal. Decree affirmed, except in so far as it enjoined the Commissioners from awarding any contract, and in that part reversed and remanded, with directions.

Norwood & Alley, of Mena, for appellant.

Minor Pipkin, of Mena, for appellee.

HUMPHREYS, J.

Appellants, real estate owners in special road improvement district No. 7, in Polk county, instituted this suit against appellees in the chancery court of said county, to prevent the commissioners from constructing the improvement. The district was created by Special Act No. 312 of the General Assembly for the year 1920. The basis for the injunction proceeding is the alleged invalidity of the act creating the district and the assessment of benefits made thereunder.

The constitutionality of the act is questioned: First, because no provision was made therein for the approval by the county court of changes that might be made in the route; second, because the act did not make provision for the construction of the bridges to be let to the lowest responsible bidder; third, because the effect thereof was to take property without due process of law; and fourth, because the commissioners were authorized to maintain the road after being built, and to make contracts for that purpose.

The validity of assessments is assailed: First, on account of the basis adopted in making them; and, second, because arbitrary and confiscatory.

Appellees filed an answer denying all the material allegations of the bill for injunction, and the cause was presented for hearing upon the pleadings and testimony of G. L. Clement, one of the assessors for the district, whose testimony was agreed to as facts in the case and incorporated in the decree. The trial resulted in upholding the validity of the act, but enjoining the commissioners from making the improvement without advertising for bids, as being contrary to public policy. Both appellants and appellees have prosecuted an appeal from the decree in so far as same is adverse to them and the cause is before this court for trial de novo. For convenience we have followed, and will continue to follow, the style of the case by referring to the property owners as appellants and to the district and commissioners as appellees.

We first proceed to a consideration and determination of the several attacks made upon the constitutionality of the act in the order set forth in our statement of the case. The principal attack is made upon section 2 thereof, which is as follows:

"Said district is hereby organized for the purpose of building, improving and maintaining the public road in Polk county, Arkansas, beginning near what is known as the Waltman place or near the section line between sections nine and sixteen, township 2 south, range 30 west, thence in an easterly direction to the Montgomery county line, following as near as practicable what is known as the Mena-Cherry Hill public road. The said public highway extends to Ink, Egger and thence to the Montgomery line. [Then follows the numbers of the townships through which it runs.] Said highway is to be constructed of macadam or of such other materials as the commissioners deem best, or the same may be improved as in the judgment of the commissioners is best without rebuilding all the way, and they are authorized to build such bridges and culverts as they may find desirable. Any bridges built shall be built and approved by the county court. In building and improving said highway, the commissioners may proceed by letting the work as a whole, or in sections, or they may build same, or a fractional part thereof, by day labor, or they may use county and state convicts as may be conceded them by the state or by Polk county. In case bids are advertised for, the commissioners shall have the right to accept or reject any bid."

1. Appellants interpret section 2 of the act as giving permission to the commissioners of the road to materially deviate from the Mena-Cherry Hill public road, designated in the act as the route to be improved, and to construct a private road in part which would impair the jurisdiction of the county court over same after completion for purposes of maintenance, etc., in violation of article 7, § 28, of the Constitution of 1874. This interpretation is placed upon the act because the commissioners are directed to follow as near as practicable what is known as the Mena-Cherry Hill public road in constructing the improvements between the points designated. This construction of the act would invalidate it and should not be adopted if some other construction can be placed upon it not inconsistent with any of its parts, which would enable it to take effect. Wells Fargo & Co. v. Crawford County, 63 Ark. 576, 40 S. W. 710, 37 L. R. A. 371; St. L., I. M. & S. R. Co. v. State, 102 Ark. 205, 143 S. W. 913.

Effect may be given to each part of the act, and to the act as a whole, without creating any inconsistency between the parts, by construing it to mean that authority is vested in the commissioners to improve the Mena-Cherry Hill public road making only immaterial changes in the route thereof. The Legislature could confer this authority without encroaching upon the exclusive jurisdiction of the county court over public roads, and a careful reading of the whole act indicates that this was the intention of the Legislature. Of course, under this construction of the act, material changes cannot be made in the route unless made by an order of the county court. Bennett v. Johnson, 130 Ark. 507, 197 S. W. 1148; Sallee v. Dalton, 138 Ark. 549, 213 S. W. 762; Summers v. Conway & Damascus Road Dist., 139 Ark. 277, 213 S. W. 775; Easley v. Patterson, 142 Ark. 52, 218 S. W. 381.

2. The act provides for a private letting by the commissioners of a contract to build the bridges, and, for this reason, appellants insist that it is in conflict with section 16, art. 19, of the Constitution of 1874, which in part is as follows:

"All contracts for erecting or repairing public buildings or bridges in any county, or for materials therefor, * * * shall be given to the lowest responsible bidder under such regulations as may be provided by law."

The language used in the act conferring authority upon the commissioners to build bridges has been construed by this court to mean bridges incident to...