{ "id": 1561075, "name": "Conway v. Miller County Highway & Bridge District", "name_abbreviation": "Conway v. Miller County Highway & Bridge District", "decision_date": "1915-11-01", "docket_number": "", "first_page": "510", "last_page": "519", "citations": [ { "type": "official", "cite": "120 Ark. 510" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "118 Ark. 119", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1562553 ], "opinion_index": -1, "case_paths": [ "/ark/118/0119-01" ] }, { "cite": "104 Ark. 425", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1350616 ], "opinion_index": -1, "case_paths": [ "/ark/104/0425-01" ] }, { "cite": "96 Ark. 416", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "92 Ark. 93", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1548575 ], "opinion_index": -1, "case_paths": [ "/ark/92/0093-01" ] }, { "cite": "102 Ark. 306", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1353973 ], "opinion_index": -1, "case_paths": [ "/ark/102/0306-01" ] }, { "cite": "118 Ark. 294", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1562574 ], "weight": 3, "opinion_index": -1, "case_paths": [ "/ark/118/0294-01" ] }, { "cite": "89 Ark. 513", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1515250 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/89/0513-01" ] }, { "cite": "12 L. R. A. 353", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 0 } ], "analysis": { "cardinality": 645, "char_count": 19198, "ocr_confidence": 0.413, "pagerank": { "raw": 5.6956927131618304e-08, "percentile": 0.35809520168936493 }, "sha256": "0e130dfd7fadb36e0b78fa4ae770165485c372d0453d08ba375ff415b70f8f30", "simhash": "1:2186c00aacb759f2", "word_count": 3328 }, "last_updated": "2023-07-14T19:47:48.789730+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Conway v. Miller County Highway & Bridge District." ], "opinions": [ { "text": "Smith, J.\nAppellant 'brought suit to restrain the Miller County Highway and Bridge District from proceeding with the construction of certain highways pursuant to plans adopted \u00a1by said highway and bridge district under the purported authority of Act No. 153 of the Acts of the General Assembly of 1915. It wias .alleged in the complaint that the said .district was formed for the purpose of building a 'bridge across Red River at a\u2019 point to be selected by the commissioners between the towns of Fulton \u00a1and Index, and to build a highway leading to said bridge, and other highways in connection therewith. That by the terms of said act it is provided that \u201cthe improvements herein undertaken shall not exceed 15 per cent of the value of the real property of said district, subject to improvement district assessments as ascertained by \u00a1the .State and county assessments. \u201d That the real property of said district .amounts to only $4,000,-000, so that the .district is authorized to undertake no improvement that will cost exceeding $600,000, and the bridge across Red River would cost almost that sum, .and after building it the district would have no funds with which to build the highways which by the terms of .said act it is required to build. That said improvement was intended to be a unit, and there being no funds with which it can be constructed as such, the said district has no right to proceed with .the construction .of any part of said improvement. That nevertheless, the commissioners have formed plans for the building of a system of highways and have abandoned the idea of constructing such \u00a1a bridge.\nThere were allegations in the complaint questioning the authority of the commissioners to construct the highways because the diversity of the public interests of said district was such that the roads could not be a single improvement.\nThe fifth paragraph of the complaint \u00a1alleged that by the terms of said act the interest upon the bonds authorized to be issued is made a part of the cost of the improvement, but the commissioners have resolved to disregard that limitation 'and to issue bonds for the full amount of 15 per cent, of the assessed value of the real property in the district, and will so issue bonds unless restrained by the order of the court.\nThe court below \u00a1sustained the demurrer to all of the complaint except the fifth paragraph, as to which the demurrer was overruled, and this appeal has been prosecuted from that decree.\nAs we view this act, it is now necessary to decide the question only of the unity of the improvement authorized by the act of the General Assembly above mentioned.\nThe title of this act is as follows: \u201cAn act to lay off .and establish a part of Miller County into a public highway \u00a1and bridge district for the construction of public highways from the city of Texarkana to the various localities in the territory hereinafter described, and for the construction of a public bridge in connection with such \u00a1highways over .and across- the Bed Biver between Fulton and Index, -and to organize \u00a1and incorporate a highway and bridge district, \u00a1and to provide for levying -assessments and collecting the same, and for other purposes.\u201d\nThe provisions of the .act, which are material upon the consideration of this question, are as follows:\nSection 1 of the act defines the boundaries of the district and provides that the territory therein included \u201cbe and the same is hereby created and constituted a high-. way \u2018and bridge district and said district shall be known as the \u2018Miller County Highway \u00a1and Bridge District.\u2019 \u201d\nSection 2 of the act provides that the said district shall have the power to construct and .maintain sixty miles of -free public highways leading from the city of Texarkana to such point on the Bed Biver between Fulton and Index, at which it may deem desirable and suitable to construct \u00a1a bridge over and -across \u00a1said Bed Biver in connection with the plan and system of .such highways, and at such point so .selected on Bed Biver, said district shall have power to construct \u00a1and maintain a free public bridge in connection with said highways over and across said- Bed Biver, .and shall have the power to construct and \u00a1maintain other highways in connection with the highway leading to said bridge from the city of Texarkana to such points as the commissioners deem, desirable but not to exceed in the aggregate in connection with the highway to said bridge sixty a\u00f1iles in length. And this section provides that the commission shall have the power to grant >a right-of-way over \u00a1said bridge to any public utility upon any terms which shall not interfere with the public use of .said bridge.\n\u00a1Section 3 provides that three men there named \u201c are hereby appointed the commission of said Miller County Highway and Bridge District,\u201d and provides for the appointment of their successors.\nSection 5 provides that \u201cthe said board of commissioners shall have the power, and it is hereby made their duty, to build and construct a public \u00a1highway from the city of Texarkana over \u00a1and across the territory in said district to such point \u00a1on Bed Biver as they may .select for the purpose of building the bridge over and across Bed Biver in connection with said highway and system of highways, between Pulton and Index, as aforesaid. * * * And \u00a1said board shall .also have power, \u00a1and it is hereby made their \u00a1duty, to build and construct a bridge over and across said Bed Biver at such point, suitable in all respects for footmen, vehicles, railroads and other public utilities, if in the opinion of said commission it may be .deemed necessary under this act. Said 'highways \u00a1and bridge to be built where, in the discretion of said board of commissioners, it is most practicable .and best to commence, locate 'and end; and they shall have power to protect .and maintain such 'highways and bridge in such effective condition as honest, able 'and energetic efforts on their part may obtain, by .building, rebuilding and repairing, or such other work as the board may deem necessary.\u201d This \u00a1section further provides that 'the commissioners shall have power to determine the crown, height, slope and grade of said highways, as well as the dimensions and character, in every respect, of said bridge, 'and make all needful regulations, and do 'all things in their opinion necessary to secure and promote the public convenience and safety over said highways and bridge; and further provides that \u201csaid commissioners shall have the right of eminent domain for the purpose of condemning iany land, levees and buildings, or other property, public or private, for the purpose of the right-of-way of said highway 'and bridge, wherever located as aforesaid.\u201d\nSection 6 directs the commission to form plans for the construction of such highways \u2018and bridge, and to procure estimates of the cost thereof.\nOther sections provide the manner in which the commissioners may obtain by condemnation or otherwise the right-of-way for said highways and the approaches and abutments to said bridge, and define the words \u201cright-of-way\u201d as used in the act to mean and include all grounds necessary for the construction of highways and bridge, its approaches and abutments and its piers, and 'all other necessary lands for the purpose of carrying out the construction of said highways and bridge.\nSection 36 of the act confers \u00a1authority upon the county court of Miller 'County to take over and acquire the highway and bridge upon \u00a1such terms as may be agreed upon as to its future maintenance but that in the event the highway and bridge is not taken over by said county court as a public highway of said county that the commissioners shall levy annually such assessments upon the benefits as may be necessary for the maintenance of said highway 'and bridge for the purpose of maintaining same and its approaches, abutments and piers in good repair and conditioned \u00a1so as to keep it forever open to the public.\nThe parties differ as to the powers of the commissioners and the decision of that question largely turns upon the construction \u00a1of \u00a1section 5. It is contended on behalf of the district that this section vests the discretion to construct'the highways without also constructing the bridge. But we do not think that the section should be so construed. The act should !be considered ns a whole, \u2022and when so considered we .think the legislative intent was to provide for \u00a1an improvement district for the construction of the highways .and bridge. The purpose of the \u00a1act is so declared in its title, and in every instance a conjunctive conjunction is used in referring to the purpose of the act 'and the duties of the commission. A disjunctive is not used in a single instance. While this fact is not conclusive, it is a strong 'circumstance to be considered in interpreting the act, \u00a1and in arriving at the essence of the thing intended to be accomplished. If it be found that the improvement was intended to be a unit, then the provisions of the act \u00a1are mandatory 'and the commissioners have no discretion to choose the parts of the improvement they will construct. Gallup v. Smith, 12 L. R. A. 353. We think it could not be successfully contended that the commission has the authority to build the bridge without also building the roads connecting with it. Yet we think there is as much authority for so doing as there is for \u00a1constructing the highways \u00a1and eliminating the bridge from the plans of the improvement.\nIt is true that section 5 of the \u00a1act provides as follows : \u201cAnd said board shall also have power, and it is hereby made their duty, to build and construct a bridge over \u00a1and across said Red River at such point, suitable in \u00a1all respects for footmen, vehicles, railroads and other public utilities, if in the opinion of said commission it may be deemed necessary under this act.\u201d\nIn the 'construction of the language quoted it is proper to bear in mind that the \u00a1commissioners have only \u2022such power as is conferred by the whole act, and in the discharge of the duties there imposed upon them they have only such discretion as is expressly conferred upon them, or \u00a1as is necessarily implied from a consideration of the duties .so imposed, and we think the phrase, \u201cif in the opinion of \u00a1said commission it may be deemed necessary under this act,\u201d was not intended to enlarge the discretionary powers of the commission, nor to authorize them to make any change in the purpose of the act; but that the proper construction of this language is to hold that the discretion there vested relates only to the kind of bridge which they shall construct, and, whether or not it shall be made available to railroads, and other public utilities. We think this language left to the commission the duty of determining the necessity or propriety of constructing ia bridge suitable for railroads and other public utilities, and conferred the authority to construct the bridge so that it would be available for railroads 'and other public utilities, if they deemed it advisable so to do, 'and the discretion conferred upon the board is limited, not to a determination of whether a bridge shall be built at all or not, but solely as to the character of the bridge 'to be built.\nTherefore, if the board was given no discretion to adopt plans which excluded the construction of the bridge, and if, as alleged in the complaint, the construction of both the 'highways and bridge is impossible within the limits set by \u2018the act, it follows that 'the board exceeded its authority, and the prayer of the complaint should have been granted. The decree of the court below is, therefore, reversed and the cause will be remanded with directions to overrule the demurrer to the paragraph of the complaint which alleges the Act of the General Assembly contemplated that the 'highways and bridge constituted a single improvement and that the commission had no discretion to construct a portion only of the same.", "type": "majority", "author": "Smith, J." } ], "attorneys": [ "William II. Arnold, for appellant.", ". E. B. Kinsworthy and T. D. Crawford as amici curiae.", "M. E. Sanderson, for \u00a1appellee." ], "corrections": "", "head_matter": "Conway v. Miller County Highway & Bridge District.\nOpinion delivered November 1, 1915.\nImprovement districts \u2014 bridge and highway district \u2014 character of the improvement. \u2014 Act 153, of the Acts of 1915, providing for the construction, of certain highways and a bridge, held to provide for the construction of 6oth a highway and a bridge, and that the one could not be constructed without the other; that the discretion given the commissioners of the district was only as to the character of the improvements, and not .as to whether the one or the \u25a0other might be constructed.\nAppeal from Miller Chancery Court; Jas. D. Shaver, Chancellor;\nreversed.\nWilliam II. Arnold, for appellant.\n1. In establishing the Highway and Bridge District, the Legislature has attempted to give jurisdiction \u25a0and control to the .commissioners, of the district, over such parts of \u00a1the public roads therein as they may select, not exceeding sixty 'miles in the .aggregate length of such roads which they may take charge of and improve. This is in conflict with the jurisdiction conferred upon the county court by the Constitution, art. 7, \u00a7 28, Const.; 89 Ark. 513; 118 Ark. 294. The commissioners have resolved to build five such roads under authority of section 2 of the act creating the district. See also \u00a7 \u00a7 5, 6, 7 of the act.\nThese five roads iand bridge do not constitute a single improvement within the meaning of the law. Supra. The act is inoperative on account of the indefiniteness of location of the proposed improvement. Sivepton v. Avery, lid Ark. 294.\n2. The court was right in overruling the demurrer to the fifth paragraph of the complaint and in enjoining the commissioners from issuing bonds or incurring any indebtedness beyond 15 per cent, in valuation. \u00a7 8, Act. Interest on the bonds is a part of the cost of the improvement. 102 Ark. 306.\n3. Under the act, the commissioners are required to build the bridge as a part of the improvement, and it is not severable from the remainder of the improvement contemplated by the act.\n. E. B. Kinsworthy and T. D. Crawford as amici curiae.\nThe act is clearly void under the ruling in Swepton v. Avery, 118 Ark. 294.\nIf the act has authorized the commissioners to combine a number of separate improvements in a single district, it is void. Id.; 89 Ark. 513.\nIt is void in that it invests in the commissioners the discretion of selecting the location of the bridge, intended to become a public highway and part of a system of public highways. This is a \u201clocal matter,\u201d the exclusive jurisdiction of which is vested in the county court.\nThe act is inoperative since it calls for improvements in excess of 15 per cent, of the valuation of all real property in the district.\nIt is manifest from a consideration of the terms of the act that the bridge and highways were intended to be a single .and indivisible improvement. See sections 2, 5 and 6 of the act.\nA reasonable construction of the clause \u201cif in the opinion of said commission it may be deemed necessary under this act\u201d is not that it confers upon the commissioners any discretion as to building the bridge, but rather as to the character of the bridge to be built.\n\u00a1Section 8 of the act plainly \u00a1and without ambiguity limits the cost of the improvement authorized by the act to 15 per cent, of the valuation of the real property in the district. To construe the proviso of this section to mean, as contended for by appellee, that the only limitation on the amount of the improvements is that the district must not issue bonds in excess of 15 per cent, of the valuation would be contrary to legitimate statutory construction, ail'd amount to rewriting the statute. The interest on the bonds must be considered \u00a1as a part of the cost.\nM. E. Sanderson, for \u00a1appellee.\n1. It is settled by the decisions of this court that the improvements \u00a1authorized by this act are not in conflict with article 7, section 28, of the \u00a1Constitution. This is not an \u00a1attempt to organize a whole county into a road improvement district, as in the Swepton case, 118 Ark. 294, nor does it authorize the organization of a road improvement district with power placed in the hands of directors or commissioners to establish new public roads and impose their maintenance upon \u00a1the county court. On the contrary, section 5 of the act expressly provides that, \u201cThe commission shall only improve such public highways as may have been laid out, or may hereafter ibe laid out, by the county court of Miller County.\u201d Acts 1915, p. \u00a1622; 92 Ark. 93; 96 Ark. 416; 104 Ark. 425. See also \u00a1section 36 of the act.\n2. There is no merit in the contention that the contemplated improvement of five roads as shown by the resolution of the commissioners \u00a1does not constitute a single improvement, that the act is deficient in failing to provide that it shall be made in \u00a1such manner as to be a connected single improvement, and inoperative on account of indefiniteness of location of the proposed improvement. See sections 2, 5 \u00a1and 6 of the act, from which it is seen that the purpose of \u00a1the Legislature in creating the district was to provide for the construction of \u00a1a connected system of highways leading from the city of Texarkana to the Red river on the north and \u00a9ast of the city. It was not intended to limit the commission to building the main road from the city of Texarkana to a fixed point on 'the Red river. The dosing words of section 2 expressly grants power to the commission to build other highways than the main road, but only m connection with the highway .leading to said bridge. There is no \u201croving commission\u201d here, as was the case'in Cox v. Improvement District, 118 Ark. 119. There is no indefiniteness 'as to the location of the improvement. The Legislature only undertook to describe it in a general way, leaving the plan or system of highways and bridge to be developed by the commission so as to serve the best interests of the people as a whole in said territory. The roads to be improved are accurately described upon the plat adopted by the commissioners.\n3. It was not the purpose of the act to limit the cost of the improvement to 15 per cent, of the valuation of real property in the district, including interest on the bonds. The real meaning of the language used in section 8 is that the money to' be actually expended for the work and the expenses incident to it, was to be borrowed at a rate of interest not exceeding 6 per cent, per annum, and to that end negotiable bonds were to be issued not exceeding 15 per cent, of the valuation of the real property in the district. 'See also' sections 2, 5 and 6.\n4. The proposed improvement as to the highway and bridge portion of the act is not inseparable. Section 5 vests in the commissioners the discretion to build the highways and bridge where, in their opinion, it is most practicable to \u2018 \u2018 locate and end \u2019 \u2019 them', and the discretion \u25a0as to whether or not the bridge over Red river should be built at all.\nThat it was intended that the necessity for the building of the bridge should be left to the judgment of the commissioners, is made plain in .section 2 and other language of the act showing that \u00a1the grant of power was permissive in its nature, 'and not compulsory as to the building of the bridge." }, "file_name": "0510-01", "first_page_order": 534, "last_page_order": 543 }