Harding v. Board of Supervisors

Feeling that the majority are committing a serious error, I am compelled to dissent. A re-statement of the material facts, as they relate to the law involved, will make plain the erroneous conclusion reached by the majority.

At the general election, held in November, 1930, in Osceola County, there was submitted to the county voters the following proposition:

"Shall the Board of Supervisors be authorized to issue bonds from year to year, in the aggregate amount not exceeding eight hundred thousand dollars, for the purpose of providing the funds for draining, grading, and hard surfacing the primary roads of the county, and to levy a tax on all property in the county from year to year not exceeding five mills in any one year, for the payment of the principal and interest of said bonds, provided, however, that the annual allotments to the county of the primary road fund shall be used to pay interest and retire said bonds as they mature, and only such portion of said tax shall be levied, from year to year as may be necessary to meet any deficiency, if any, between the amount of the interest and principal of the bonds and the said allotments from the primary road funds?"

A majority of the electors voted in favor of the proposition. After the election the state highway commission, under the authority of Jenkins v. State Highway Commission, 205 Iowa 523, changed the Osceola primary road No. 9, as contemplated by section 4755-b2 of the 1927 Code.

Having made a change in the primary road after the election, in the manner and way aforesaid, can the proceeds from the bond sale be used as contemplated? That is the first question.

Appellant contends that such fund cannot be thus used because the electors of the county voted to pave, not the changed highway, but only the roads which, on election day, were in the primary system. Through that argument, appellant insists that said particular roads were pointed out in the ballot, and thereby separated from the general system of primary roads as the same is changed and constituted from time to time. According to his theory, a basis for this conclusion can be found in the following language of the ballot, before quoted, wherein the highways to be paved are designated as "the primary roads of the county." By using the word "the," appellant says, the legislature intended to specify the roads in the primary system as then constituted. When so reasoning, appellant entirely overlooks the statutory classification of highways. The same Code chapter that specifies the form of the ballot also separates the highways into primary and secondary, and empowers the highway commission to change those systems from time to time by adding thereto or taking therefrom. After such change, according to the statutory scheme, the particular system still remains primary or secondary, as the case may be. Then, when the word "the" is used in the ballot, as before explained, it refers to the primary roads, and thus distinguishes that system from the secondary.

An answer, therefore, to the above-named inquiry may be found in the statutes involved. Section 4755-b2 of the 1927 Code contains, among others, the following provision:

"The highways of the state are, for the purposes of this chapter (the one authorizing the bond issue), divided into two systems, to wit: the primary road system and the secondary road system."

Likewise, as before said, a primary system, once established, is always subject to change and revision under the terms of said section 4755-b2. A fundamental consideration at this juncture is that the statute contemplates a primary and secondary system. Therefore, under the legislation, there are two designations: the one relates to primary roads, and the other to secondary. Hence, when the voters in Osceola County cast their ballots on the election day, they determined whether or not bonds should be issued "for the purpose of providing the funds for draining, grading, and hard surfacing the primary roads of the county." "The primary roads of the county" distinguished the highways in question from the secondary system. There was no other purpose in using the words "the primary roads of the county" on the ballot.

Remembering, as we must, that the legislature itself divided those highways in the county into two groups, first primary, and then secondary, it becomes quite clear that the legislature, by authorizing the words in the ballot, to wit, "the primary roads of the county," intended to distinguish those primary roads from the remaining secondary highways. Under no circumstances did the words "the primary roads of the county" indicate the road that happened to be running by B's farm, C's corner, or D's oil station. Rather than that, the language "the primary roads of the county," as before suggested, had reference to the systems: that is to say, the primary and secondary roads. Again, the very statute that classifies the roads into primary and secondary systems likewise authorizes the state highway commission to revise the system. Such revision was sustained by this court in Jenkins v. State Highway Commission (205 Iowa 523), supra. When thus revised, the new portion automatically becomes a part of the primary system, and the old part goes back into the secondary. Then when pavement is placed upon that new portion, a part of the primary system thereby is improved. Wherefore, after the change as before, the roads included still remain and constitute "the" primary system. Those roads, therefore, thus legally included, whether before or after the election, constitute "the" primary system named in the ballot.

According to section 4755-b2, above, the purpose of such revision is to afford "access to cities, towns, or state parks, or (to shorten) the direct line of travel on important routes, or to effect connections with interstate roads at the state line." Express legislative language empowers the state highway commission to make the very change under consideration in the case at bar. Primary No. 9 extends from the Dakota line to the Illinois line in an easterly and westerly direction across the entire state of Iowa. Only a few miles, then, of Primary No. 9 are involved in the change. Several miles are saved by the change. Under the Jenkins case (205 Iowa, 523), above cited, such change is permissible. Because of the circumstances here presented, the people of the entire state of Iowa, as well as the inhabitants of Osceola County, are interested in the change. See the Jenkins case, supra. Clearly, then, the result of the vote was to authorize bonds for the purpose of improving the primary system, including the changed portion, rather than the designation of any particular road to be improved without reference to the changed system.

Must such change, then, be made before the vote? Manifestly not, as seen by the foregoing discussion. Murph v. Macon County (Ga.), 146 S.E. 845. Primary road systems are continually under the control of the highway commission. That body may make changes on the highway system, as contemplated by the foregoing legislation. Consequently, the voters are not legally interested in whether or not the highway commission (while acting within its legal discretion) shall perform its duty this way or that way, or whether that body shall make this change or that change, but rather, the voter expresses his approval or disapproval of anticipating the primary road funds by the issuance of bonds for the primary system, which is thus in control of the highway commission. Many times, a change contemplates expense which would not be practical or wise unless bonds are issued. So it must be expected, under the law, that the change, as authorized, may be made by the highway commission after the election. The change in question avoided many corners. Thereby danger was avoided and convenience served. It does not appear that there would have been immediate funds with which to make such change without the bond issue. Moreover, unless the new road were to be immediately paved, no doubt the expense of making the change would have been unwise and undesirable. Thus it is plain that the state highway commission may perform its administrative function in making the authorized changes in highways, even after the vote has been taken. Otherwise, the very purpose of the law would be thwarted, and the power given the commission denied. Of course, it is true that bonds must be used for the purpose voted. See 44 Corpus Juris 1209; Tukey v. City of Omaha (Neb.), 74 N.W. 613; Beers v. City of Watertown (S.D.), 177 N.W. 502; Hayes v. City of Seattle (Wash.), 207 P. 607; Heathman v. Singletary (Tex.), 12 S.W. (2d Ed.), 150. But here we have no such question involved as that discussed in those cases. If the money is expended on the primary road system of Osceola County, no voter has a right to complain; for if so expended, the money is used in the way contemplated by the statute. That voter we cannot assume would have cast his ballot differently, had he known that the primary highway system of the county would pass his neighbor's farm, rather than his own. The system is for the service of the county and state, rather than the enhancement of the value of a particular farm. Certainly, when contemplating the primary highway system, it cannot be said that a particular farm or a certain town is more sacred than any other farm or town in the county.

Fraud is not involved, and cannot be, under the circumstances. Every voter who cast his ballot for the bonds in question knew that, under the legislation aforesaid, the state highway commission could make this very change. Furthermore, that voter also understood that the state highway commission could not barter away that right. Public policy is involved, and it is important to the people that the highway commission be free at all times to exercise its power and authority in the establishment and relocation of roads. This is not a new doctrine. Upon many occasions, this court said that a city council, for instance, cannot bargain away its power to fix electric light, gas, and water rates. See Town of Williams v. Iowa Falls Elec. Co., 185 Iowa 493; City of Tipton v. Tipton L. H. Co., 176 Iowa 224; Iowa Railway Light Co. v. Jones Auto Co., 182 Iowa 982.

Under our government, the legislature is permitted, in its wisdom, to place in public bodies authority for the public good. When thus placed, such power cannot be bargained away or given up by such body. Said body must at all times exercise that power for the public good. There is nothing in the ballot now under consideration that could in any way have misled the voters in Osceola County. For the only proposition expressed in the plain English language of that ballot was whether the primary, as distinguished from the secondary, roads were to be paved. Hence, there is no basis for the argument that the people were misled.

On the other hand, if the appellant is to prevail, the very will of the voters will be thwarted. Now, the primary road is the new road, not the old. Consequently, if the highway commission paves the old road at this time, it is improving a secondary, and not a primary, highway; because, under the statute above referred to, a discarded primary road becomes a part of the secondary system. Obviously the voters did not authorize that. Nor could such electors legally intend or lawfully expect that the highway commission of this state should enjoin or estop itself from exercising the governmental function in it vested, to wit, the right to change and relocate highways under the aforesaid statute.

Resultantly the district court properly denied the injunction.

EVANS, MORLING, and GRIMM, JJ., join in the dissent.