Sallee v. Dalton

213 S.W. 762, 138 Ark. 549, 1919 Ark. LEXIS 80

• Court: Supreme Court of Arkansas
• Decided: May 5, 1919
• Status: Published

Opinions

McCULLOCH, C. J.

The General Assembly of 1919 enacted a special statute (Act No. 135) creating a road improvement district in Randolph County designated as Western Randolph County Road Improvement District covering territory described as “all of Randolph County west of the Current and Black rivers.” The statute authorizes the improvement of eleven connecting highways, four of which radiate from Pocahontas, the county site, and the others connect with those roads.

The validity of the statute is challenged by appellant, an owner of real property within the district, who instituted this action in the chancery court of Randolph County to restrain the commissioners of the district from proceeding to organize and construct the improvement and levy assessments, etc. The district covers about three-fourths of Randolph County, being, as shown in the record, all the uplands of the county, and the bottom lands of the county lie east of the rivers mentioned. Six of the roads are described in the statute as being old-established public roads, but the several routes for the other five roads are to be selected by the commissioners, the termini of each of those roads being, however, definitely stated. The first road mentioned in the statute is described as follows: “A road from Pocahontas to Mellroy ’s Perry on Current River, following the old road as nearly as practicable.” The other five established roads ,are described in similar language, giving the termini of each, and the descriptive clause in each instance concludes with the words “following the old road as nearly as practicable.”

The case was tried on an agreed statement of facts' in which it is stipulated, among other things, that the roads “to be improved as mentioned and described in said act are now regularly established and existing public highways, and before any other or different route can be adopted by the commissioners of said district, the county court of said county must open, lay out and establish same in the manner required by law.” It is contended here that the above clause of the agreement refers only to the six established roads, and not to the other five roads to be selected by the commissioners. We do not, however, deem that matter important under the view we take of the law applicable to the case. There are two of the sections (3 and 5) which are especially pertinent to the controversy, and which read as follows:

“Section 3. If any part of said road has not been laid out as a public road, it is hereby made the duty of the county court of Randolph County to lay the same out in accordance with Act No. 422 of the Acts of the General Assembly of the State of Arkansas for the year 1911, entitled ‘An Act to amend section 7328 of Kirby’s Digest of the Statutes of Arkansas,’ approved May 31,1911.” -

“Section 5. It is made the duty of said commissioners to proceed as rapidly as possible with the improvement of the road hereinbefore described, improving it in such manner as they deem to the best interests of the property owners, and they shall also maintain said road in good condition after its completion. As soon as possible, the commissioners of said district, shall form their plans for the improvement with the aid of the State Highway Department and of such engineers as they see fit to employ, and shall file the same with the county clerk of Randolph County, along with specifications and >an estimate of the cost. If said commissioners deem it to the best interests of the district to vary the line of the road, as hereinbefore laid out, they may report that fact to the county court of Randolph County, and in that event, if the county court approves of the report, it may make an order changing the route of the road, and if necessary, it shall, in that event, lay out the new road in the manner hereinbefore provided.”

It is first contended that the statute is void for the reason that the territory is not definitely described, in that there is a well-founded doubt whether or not the territory between the two rivers mentioned is to be included in the district. We do not think there is any ambiguity in the language of the statute or any doubt whatever about the territory tc be embraced in the district. Black River flows southwesterly across the southeastern part of the county. Current River is west of Black River and also flows in a southwesterly direction and empties into the Black in Randolph County about midway between Pocahontas and the eastern line of the county. The language in the statute “West of the Current and Black Rivers” undoubtedly means all of the territory west of Current River down to its junction with Black and all west of Black below that point. It does not include the lands lying between the two rivers.

It is also contended that the territory is so extensive and covers such a great portion of the county, that it provides for so many different roads and is a project of such great magnitude that the improvement of these roads cannot be treated as a single improvement so as to be the subject-matter of one district. The statute constitutes a legislative determination of the singleness of the project, and we cannot say that the decision of the lawmakers is obviously erroneous and arbitrary. The roads, as before stated, radiate from the county site, which is the principal town in the county, and perhaps the center of population and business, and they afford transportation facilities for all of the lands of like character in the county. The other roads connect with the four main ones. The case is definitely ruled, we think, by former decisions of this court. Conway v. Miller County Highway & Bridge District, 125 Ark. 325; Bennett v. Johnson, 130 Ark. 507; Marshall v. Baugh, 133 Ark. 64; Tarvin v. Road Improvement District No. 1 of Perry County, 137 Ark. 354, 209 S. W. 81.

The courts have nothing to do with the policy of creating large districts for the construction of improvements at enormohs costs to the owners of land. That is a matter which addresses itself entirely to the Legislature, the presumption being that the will of the owners of property was considered in the enactment of the statute. The only thing with which we have to do is the question whether or not the act is within the constitutional powers of the Legislature.

The principal attack made on the validity of the statute is that it constitutes an invasion of the jurisdiction of the county court over the roads and highways conferred by the Constitution. Section 28, article 7, Constitution of 1874. It is said that this jurisdiction is invaded for the reason, first, that the greater portion of the county is covered by the district, and that it includes most of the roads and takes them out of the jurisdiction and control of the county court. Counsel for appellant rely on Road Improvement District No. 1 v. Glover, 89 Ark. 513, and Swepston v. Avery, 118 Ark. 294, as sustaining their contention in this respect, but such is not, we think, the effect of those decisions. In the first of the cases- just cited we held that the whole of a county could not be organized into an improvement district for the purpose of establishing new roads and imposing them upon the county court as a part of the highway system of the county. In the other case we decided that substantially all of a county could not be organized into an improvement district with authority to determine what rotads should be improved and assess the cost of the improvement of any road selected by the commissioners of the district against the property of the district in proportion to its value. Here we have a different question presented. Certain roads are designated for improvement and the cost is to be imposed on the land in the district according to actual benefits, to be assessed by a board of assessors. The commissioners are authorized to vary the routes along established highways and to select routes for certain roads which are to be established, but, as will be presently shown, this is not authorized ias against the judgment of the county court, and the statute does not authorize the establishment by the commissioners of public roads and imposing them on the county court as a part of the highway system of the county.

The other reason stated why the act constitutes an invasion of the jurisdiction of the county court is the one just suggested, viz., that it authorizes the commissioners to vary the routes of the public roads and to establish new roiads. This, however, is not the effect of the statute, when properly interpreted. Sections 3 and 5, when considered together, show clearly that it was not the purpose of the lawmakers to compel the county court to accept the judgment of the Board of Commissioners in the selection of routes, but that, on the contrary, the county court is to exercise its judgment and discretion in that matter, and to act in accordance with the methods prescribed in another general statute. Kirby’s Digest, section 7328, as amended by Act No. 422 of the session of 1911, is especially referred to, and that contains the authority of the county court in matters of establishing and altering public roads and points out the method of doing so. The statute now before us compels the county court to act upon the proposals to establish a new road or to vary the route of an old one, but does not compel the county court to adopt such proposals ¡agaifist its own discretion and judgment. The language of section 5 provides that the report of the plans for the improvements is to be filed with the county court. That section refers specifically to the changing of the routes or establishing roads in conferring specific authority upon the county court, providing that the county court must approve the report before it orders the change in the route, but the section continues further to authorize the county court to lay out a new road.

We are of the opinion, therefore, that sections 3 and 5 should be read together, and that they do not absolutely impose the will of the commissioners upon the county court in the changing of roads or the establishment of new roads, but that the constitutional jurisdiction of the court itself is invoked by this statute instead of the statute constituting an invasion of the jurisdiction of the court.

In reaching this conclusion we are adopting the well-settled rule of interpretation stated by Judge Cooley in his work on Constitutional Limitations (7 ed., p. 236) and so often approved by this court as follows: “The duty of the court to uphold a statute when the conflict between it and the Constitution is not clear, and the implication which must always exist that no violation has been intended by the Legislature, may require it in some cases, where the meaning of the Constitution is not in doubt, to lean in favor of such a construction of the statute as might not at first view seem most obvious and natural. For, as a conflict between the statute and the Constitution is not to be implied, it would seem to follow, where the meaning of the Constitution is clear, that the court, if possible, must give the statute such a construction as will enable it to have effect.”

Of course, it goes without saying, that it constitutes no invasion of the jurisdiction of the county court to authorize the improvement of highways established by order of that court.

There is another reason why material parts, if not all, of this statute should be upheld, even if the assailed portions of the statute were void. There is a section of the statute which reads as follows: “Section 27. If for any reason any provision of this act shall be held to be unconstitutional, it shall not affect the remainder of the act; but the act, insofar us it is not in conflict with the Constitution, shall be suffered to stand.”

In the case of Snetzer v. Gregg, 129 Ark. 542, we passed on the question of partial unconstitutionality of a statute and held that a provision similar to the one in the present statute, giving expression to the legislative will to put into force every part of the statute found to be constitutional and valid, was effective to preserve intact parts of statutes found to be valid, even though other portions of the same statute were violative of the Constitution.

This statute authorizes the assessment of the benefits to all lands in the district, and classifies as land “all railroads, tramroads, telegraph, telephone and pipe lines.” No question is raised in the present litigation as to the correctness of that classification, and we do not decide that question. We merely mention it for the purpose of showing that it is not necessary to pass upon every provision of the statute in order to determine the constitutionality of those provisions which are expressly assailed in this litigation.

The chancery court was correct in deciding that the statute was not open to attack on the grounds herein discussed, and the decree is therefore affirmed.