#### Casey v. Douglas.

Opinion delivered July 11, 1927.

*643 John Nance and W. 0. Young, for appellant. -

Sam Beasley and McGill & McGill, for appellee.

Kirby, J.,

(after stating the facts). This road was attempted to be laid out under the provisions of § 5249 Crawford & Moses’ Digest, which has been held to be constitutional, and to provide an independent method of authorizing the laying out and establishment of roads without giving notice, appointment of viewers, etc. Sloan v. Lawrence County, 134 Ark. 121, 203 S. W. 260; McMahan v. Ruble, 135 Ark. 83, 204 S. W. 746. This statute has been amended by act No. 611 of the Acts of 1923, approved March 23, 1923, which was in force when this proceeding' was begun. The amending statute' included all that part of the old statute that was to become, the law under the amendment, but from its provisions were expressly excepted Benton and other counties of the State, which necessarily had effect, according to the majority opinion, to leave the law, so far as relates to Benton- and the other counties excepted from the terms of the. amending statute as provided in said § 5249, and as though no amendment to said section had been made, since it is expressly provided that such amendment shall not relate to. the excepted counties. .

The county courts, when,establishing new roads or laying out old roads under the authority of said § 5249, cannot ignore any of the applicable provisions of the Constitution, and, in exercising the power conferred upon it by that statute, cannot disregard the constitutional pro*644vision that “private property shall not be taken, appropriated or damaged for public use without compensation therefor,” nor disregard the mandates of Amendment No. 11, but must exercise its authority in conformity with, both the said provisions of the Constitution as interpreted by this court. Independence County v. Lester, post, p. 796.

The circuit court on appeal could exercise, of course, no greater power or authority than was within the jurisdiction of the county court, and, in making its order, not only departed materially from the route proposed and established by the lower court, but made the location of the néw road dependent upon many contingencies as to procuring right-of-way and payment of damages by certain individuals, releases from others and always upon proposition that the road as laid out should not be constructed unless and until there should be funds enough on hand in the county treasury to pay for all damages for right-of-way taken for the purpose. It could not have been made a valid order establishing the road that would have authorized the taking the lands of any owners required therefor without compensation first paid, as held in Independence County v. Lester, post, p. 796.

New roads are to be laid out and established only when the public convenience, as shown under the forms of law provided therefor, requires it shall be done, and, when such necessity is shown to exist, then the order' should be made- laying out and establishing the road definitely, and not contingent upon conditions that may not be met or performed for a long or indefinite time, nor at all.

More contingencies are recognized and attempted to be provided against in the order of the circuit court laying out the road and changing the route materially from that adopted by the county court than will permit the establishment of the neAV road with that degree of certainty required by law, and its judgment is reversed, and the cause remanded for further proceedings according to law and not inconsistent with this opinion.