Wallace v. Foster

On or about the first day of June, 1927, a special election was called in Woodbury County, at which time there was submitted to the voters of said county the proposition of issuing certain road bonds "for the purpose of providing funds for draining, grading, and hard-surfacing the primary roads of the county." At said election a majority of the votes were in the affirmative. A large portion of the bonds so authorized has been issued and sold, and this action is brought to enjoin the board of supervisors from issuing and selling some $315,000 of the bonds so authorized, and from expending the proceeds thereof in the manner contemplated by the board of supervisors.

Briefly stated, it is the contention of the appellant that the board of supervisors contemplate and intend to use the proceeds of said bonds for the purpose of building and improving streets wholly within the corporate limits of Sioux City, and which appellant contends were no part of the primary roads of Woodbury County at the time of said bond election.

After the enactment of the primary road law and prior to said bond election it appears that the State Highway Commission selected and designated two primary roads (with others) in Woodbury County, known as Primary Road No. 75 and Primary Road No. 20. Such selection and designation was evidently approved by the Federal Government. An official map showing said primary roads so selected and designated was filed by the State Highway Commission with the County Auditor of Woodbury County. Said Primary Roads Nos. 75 and 20 terminated at the corporate boundaries of Sioux City. This is shown on the official map. It appears that from the city limits of Sioux City the said Primary Roads Nos. 75 and 20 by appropriate markings were routed over city streets, the entire mileage of both routes being paved, bridged, and under the jurisdiction of the city council of the city of Sioux City as regularly established streets of said city. This was the situation at the time of the bond election.

It now appears that the Highway Commission proposes to route the continuation of Primary Road 75 from the corporate limits of Sioux City over certain streets, and for about 4.8 miles through said city over an entirely new course and on a new right of way, much of which has never been used for highway purposes. A similar plan is proposed as to Highway No. 20. It is for this purpose that the bonds in question are proposed now to be sold.

Can the board of supervisors turn over the proceeds of the bonds voted at the June, 1927, election to the Highway Commission for said purpose?

A brief review of the history of a portion of the primary road legislation may be of service. The original act with regard to the selection of primary roads was Chapter 249 of the Acts of the Thirty-seventh General Assembly. Section 2 of said act is as follows:

"The State Highway Commission is hereby authorized and directed, as soon as may reasonably be done, to designate and select from the roads which are now or hereafter may become rural post roads, including a part of each of the ninety-nine counties of the state and including not less than two thousand nor more than six thousand miles, giving equitable consideration to the claims of each county, said system to be so selected and designated as to at least meet the requirements of the federal act and a sufficient number of miles to at least require the full appropriation provided for by the federal act during the life of said statute. Before designating the roads of such system, the State Highway Commission shall request the co-operation and assistance of the boards of supervisors of the respective counties, and shall give due consideration to the judgment of each of said boards in such designations."

It was under this act that the primary roads in question were established and designated, and under which they existed when the bonds in question were voted for their improvement.

Chapter 237 of the Acts of the Thirty-eighth General Assembly provided in part as follows:

"The highways of the state are, for the purpose of this act, divided into two systems, to wit: the primary road system and the secondary road system. The primary road system shall embrace those main market roads (not including roads within cities), which connect all county seat towns and cities and main market centers, and which have already been designated under section 2 of chapter 249 of the laws of the thirty-seventh general assembly of the state of Iowa."

The Forty-second General Assembly, by Chapter 101, Section 2, amended this statute by providing that the primary road system shall not include roads within cities and towns. See Code 1931, Section 4755-b2.

From the foregoing it is apparent that the legislature expressly provided that the primary road system should not include roads within cities and towns. There was, however, other legislation respecting roads that are situated within cities and towns. This legislation first appeared in Chapter 237 of the Acts of the Thirty-eighth General Assembly, in Section 35, as follows:

"The board of supervisors shall not drain, grade or hard-surface any highway within the limits of cities. Draining and grading on the primary system within towns shall be done by said town at its own expense. The board of supervisors is hereby given plenary jurisdiction to hard-surface, within any town, any road or street which is a continuation of the primary road system of the county, providing that no hard-surfacing constructed hereunder in any town shall exceed eighteen feet in width. After the completion of such improvement the same shall be maintained by the town and such town shall rest under the same obligation of care as to such improvement as is now provided by law for roads and streets generally. Any such town, through its council, and each county of the state, through its board of supervisors, are hereby authorized to enter into written agreements, subject to the approval of the state highway commission, to determine the location of such improvements within such towns. In case of disagreement, the matter shall be referred to the state highway commission, whose decision shall be final."

The Extra Session of the Fortieth General Assembly, by Chapter 8, Section 19, provided as follows:

"The board of supervisors is hereby given plenary jurisdiction subject to the approval of the council to purchase or condemn right-of-way therefor and grade, drain, gravel, or hard-surface any road or street which is a continuation of the primary road system of the county and which is:

"1. Within any town, or

"2. Within any city, including cities acting under special charter, having a population of less than twenty-five hundred, or

"3. Within that part of any city, including cities acting under special charter, where the houses or business houses average not less than two hundred (200) feet apart.

"The primary road fund shall not be charged with the cost of hard-surfacing within the cities and towns specified above in excess of the cost of hard-surfacing which is eighteen (18) feet in width.

"After the completion of such improvement the same shall be maintained by the city or town and such city or town shall rest under the same obligation of care as to such improvements as is now provided by law for roads and streets generally.

"Any such city or town through its council and each county of the state through its board of supervisors are hereby authorized to enter into written agreements subject to the approval of the state highway commission to determine the location of such improvements within such cities or towns. In case of disagreement the matter shall be referred to the state highway commission, whose decision shall be final. The board of supervisors shall not drain, grade, gravel or hard-surface any highway within the limits of cities other than those specified herein."

The Forty-second General Assembly, by Chapter 101, Section 29, further amended this statute to read as follows:

"The state highway commission is hereby given plenary jurisdiction, subject to the approval of the council, to purchase or condemn right of way therefor, and grade, drain, bridge, eliminate danger at railroad crossings, gravel, or hard-surface any road or street which is a continuation of the primary road system and which is (1) within any town, or (2) within any city, including cities under special charter having a population of less than twenty-five hundred, or (3) within that part of any city, including cities acting under special charter where the houses or business houses average not less than two hundred feet apart.

"The primary road fund shall not be charged with the cost of hard-surfacing within cities and towns specified above in excess of the cost of hard-surfacing which is twenty feet in width."

See Section 4755-b26, Codes 1927, 1931.

It is thus apparent that the several statutes in terms provide that the primary roads shall not include roads within cities and towns, and yet the State Highway Commission now has "plenary jurisdiction" to improve "any road or street which is acontinuation of the primary road system * * * within that part of any city * * * where the houses or business houses average not less than two hundred feet apart." (Writer's italics.)

We must reconcile the statutes to carry out the legislative intent if this can reasonably be done.

Obviously, the act defining what shall comprise the primary road system includes therein only roads connecting certain cities and towns, and expressly excludes therefrom roads that are within cities and towns. It undoubtedly became apparent to the legislature that it would be a great convenience to give the Highway Commission authority to do certain specified acts with regard to certain roads within cities and towns that were located on the line of a primary road. For example, if a primary road connects with a street which is wholly unimproved, it is obviously for the convenience of public travel that the Highway Commission be authorized to improve this connecting street. The authority thus granted to the Highway Commission is not unlimited. It is also to be observed that no matter how wide a city or town street may be the authority given the Highway Commission is limited to expending the primary road fund to the cost of hard-surfacing twenty feet in width. It gives the Highway Commission no power whatever to act without the approval of the council of the municipality, and it expressly provides that the jurisdiction so conferred on the Highway Commission should be limited to improving such roads or streets as are "a continuationof the primary road system." The Act does not make such roads or streets within a city or town a part of the "primary road system." It does not purport so to do. It does give the Highway Commission authority to improve certain roads and streets of the municipality if the city council approves thereof. It does not appear from the statute that the legislature had any intent to affect the municipal responsibility in regard to such streets. The power conferred on the Highway Commission is to improve such streets, but the duties and responsibilities of the municipality in relation thereto do not appear to have been divested by the legislature. It is also apparent from the statute that the legislature contemplated that the cost of the improvement within a municipality by the Highway Commission should be paid out of the general state primary road fund, the statute declaring: "The primary road fund shall not be charged with the cost of hard-surfacing within cities and towns * * * in excess of the cost of hard-surfacing which is twenty feet in width."

The primary road fund is defined by Code Section 4755-b3. It does not include the special funds voted by a county for the purpose of improving local roads in the county. The authority given the Highway Commission to hard-surface roads or streets in a town or city not exceeding twenty feet in width, and to use the state primary road fund to pay therefor, is a very different thing than making the primary road system include roads and streets in cities and towns when the legislature expressly declared that they shall not be so included.

We are of opinion that the two statutes in question can and should be considered together, and when this is done we think it clear that roads and streets in cities and towns are not part of the primary road system of the state but are expressly excluded therefrom by the legislature, and the power conferred on the Highway Commission in respect to such roads and streets does not make them a part of the primary roads of the county.

Having reached this conclusion, it of necessity follows that the improvement contemplated under the record in this case, wholly within the limits of Sioux City, was not a part of the "primary roads" of Woodbury County. It is to be remembered that the Highway Commission is not a party to this action and the appellant does not seek to enjoin said Commission from making the improvement in question. The sole question at this point is whether or not the board of supervisors can sell the bonds of the county and use the money for said improvement. The question submitted to the electors was solely one of issuing bonds to improve "the primary roads" of Woodbury County. The primary roads of the county did not include the proposed improvement, which is wholly within Sioux City. The proceeds of the bonds can only be used for the purpose for which they were authorized by the voters. Harding v. Board of Supervisors, 213 Iowa 560. It follows that appellant was entitled to an injunction restraining the appellee board of supervisors from diverting the proceeds of said bonds to any other purpose than the improvement of the primary roads of Woodbury County, which, under the very terms of the statute, do not "include roads or streets within cities and towns."

We are not to be understood as holding that the Highway Commission may not use the general primary road fund of the state for such improvement under the statute. What we are holding, and all we are holding, is that the board of supervisors cannot divert the proceeds of the bonds voted to improve the primary roads of Woodbury County to the purpose of improving roads and streets that are expressly excluded by statute from the primary road system.

It follows that the order of the district court denying the injunction sought by the appellant must be — Reversed.

WAGNER, C.J., and EVANS, STEVENS, MORLING, and ALBERT, JJ., concur.

De GRAFF and GRIMM, JJ., dissent.

KINDIG, J., takes no part.