Haley v. Sullivan

Humphreys, J. There is a direct and cross-appeal in this case. The direct appeal presents the question of whether the trial court allowed a sufficient amount to J. F. Haley for his services as engineer in making the preliminary survey of the road to be constructed and in estimating the cost of the improvement. The cross-appeal presents the question of whether act 341 of the General Assembly, approved February 25, 1920, conflicts with § 28, article 7, of the Constitution of the State, by encroaching on the exclusive original jurisdiction of the county court over all matters relating to public roads in the county. We proceed to a consideration of the latter question because, in the view of the majority, the act is void, which view automatically eliminates the question presented for consideration on the direct appeal. A claim for preliminary expenses in organizing a road district must be founded on a valid act. A void act will not support such a claim. Section 3 of the act in question is as follows: “Said district is hereby created and organized for the purpose of building, improving and maintaining a public highway from the town of Wicks, in Polk County, Arkansas, eastward to Baker Springs, in Howard County, Arkansas, and to intersect the public highway in Road Improvement District No. 2 in Howard County, Arkansas, at or near «aid Bakér Springs, and which said road shall follow, as near as practicable, the present traveled road from the said town of Wicks to the termini at or near said Baker Springs, in Howard County, Arkansas. Said commissioners here appointed are empowered, however, to build said road over and along the most favorable and practicable route. Said highway is to be constructed of macadam or such other materials as the commissioners may deem best or suitable, and they are authorized to build such bridges and1 culverts as may be by them deemed necessary and desirable. ' Any bridges of the first class built shall be approved by the county court in the county in which such bridge or bridges may be built.” The constitutionality of the act might be upheld under the rules of construction invoked in the recent case of Wimberly v. Road Improvement District No. 7, 161 Ark. 79, if it were not for the following clause of § 3 thereof: “Said commissioners here appointed are empowered, however, to build said road over and along the most favorable and practicable route.” This clause follows language in the same section similar to language used in § 2 of act 312, passed at the same session of the Legislature, which we construed in the Wimberly case as conferring power upon' the commissioners to make immaterial changes only in the MenaCherry Hill Road. The sentence or clause quoted is much broader than the language which precedes it, and plainly attempts to confer authority on the commissioners to materially deviate from the present traveled road between the towns of Wicks and Baker Springs by clothing them with power to select .a different or new route altogether,, if more favorable and practicable than the route designated in the act. The intent of the Legislature was to authorize the commissioners to make these material changes without the consent of the county court, as indicated by the fact that provision was made in the same section to obtain the approval of the county court in ease bridges of the first class should be necessary in constructing the improvement. It is true it was not necessary to obtain the ¡consent of the county court to construct a bridge which, constituted a part of the improvement, but this provision, deferring to the wishes of the county court, showed that the Legislature had article 7, § 28, in mind when it enacted the law. Certainly the Legislature would not have deferred to the wishes of the county court in express terms on an immaterial matter and have omitted to do so on a material matter. It would be illogical to say that, by silence, the Legislature intended to defer to the wishes of the county court in important particulars, when in the same section it g’avé expression to this intent in unimportant matters. It is obvious that the intent of the Legislature was to confer uncontrolled authority upon the commissioners to make material changes in the route designated in the act. The Legislature was without authority to do this. The decree is therefore reversed, with directions to restrain the commissioners from levying and collecting a tax upon the property described in the act to defray preliminary expenses in the district.