*1 i HINCHEY, HINCHEY, OLIGER, John Darrell Joyce STRIPLING, STRIPLING, Clarence Eva Charles MARSH, MARSH and N.A. v. Marilyn CAUGHORN THOMASSON, al., Patsy et Individually, as Directors of the Arkansas State & Transportation
Department 86-229 Court of
Supreme
Arkansas
Opinion delivered April
[Rehearing denied May
1987.2]
dissenting opinion appears
Justice Hickman’s
at
Stripling Morgan, by: & Dan Stripling, appellant. Keys, Chris O. Parker and Thomas B. appellee. Holt, Jr., Jack in Chief Justice. At issue this case is the the Arkansas State & Highway Transportation (Commissioners) Commissioners Department exchange roads with Van Burén and Counties. found Searcy The chancellor such action was its “within scope statutory [the Commissioners] and constitutional We and affirm. authority.” agree
Arkansas State 254 through runs Van Burén and Highway Searcy Counties. It from extends 16 Highway northwesterly across Archey Creek for about six miles. There is a 1.2 mile gap the highway Highway 254 then system. easterly extends about Dennard, ten miles to Highway 65 at Arkansas.
The Commissioners stating entered a minute order section of Highway 254 that crosses Creek would be Archey eliminated from the state would highway instead system become road county system by transfer. The order provided then that miles approximately twelve road towere be added to the remainder of 254 and bécome a Highway The added highway. road would connect near Highway Pope line with so the remainder of Highway Highway would extend from 65 to The Van Burén and entered Searcy County Judges orders in which they agreed transfers. own land on
Appellants the section of 254 that was turned over to Van Burén and Counties. Searcy brought this They suit claiming the Commissioners violated Ark. Stat. Ann. 76- 1981) 501 (Repl. when authorized they the road with exchange the counties.
Section 76-501 provides: are Highways hereby declared to be those roads and
primary roads and secondary connecting roads Commission, heretofore designated as *3 shown a on file in by map the office of the State Highway Commission, entitled of the State of Arkansas “Map Showing State Highway and marked System,” “Revised 1, 1929,” March including those of said roads portions extending into or through towns and incorporated cities. The State Commission to hereby required preserve said asmap record. permanent
The State Highway Commission is hereby empow- ered, with any consent of necessary the Federal proper Authorities, make, to from time to time such necessary and changes additions to the roads designated as State as it Highways may deem and such proper, changes or additions shall become effective the immediately upon filing of a new as a map, permanent official record in Provided, the office of the State Commission. however, the State Highway Commission shall not have authority to eliminate the part Highway System. of
It is declared hereby to be the policy State to over, construct, take maintain and control all the repair, roads in public the State comprising the State as Highways defined 65, 3, herein and hereinafter. No. p. [Acts § 264; 6523; Acts Pope’s Dig., No. p. § § 17.] added). (emphasis
The landowners contend correctly ex- proposed change of roads with the counties would cause the elimination of of the state part which is highway system, 76-501. prohibited by
Nevertheless, fail argument landowners’ must be cause legislation of enacted subsequent Assembly. General entitled, Act 150 1961 is “An Act Relating Improvement of Federal-Aid to Authorize the State Secondary Highways; and the County Commission Judges Respective Into Counties to Enter Agreements Providing Exchange in Their Highways Respective Highway Systems; Other Purposes.” (emphasis added). Sections four and fiveof that Act provide:
SECTION Highway Commission Judges of the counties are respective hereby authorized to enter into agreements whereof high- certain ways the State Highway become a System part County Highway and certain System, County Highway become a System the State System. All such agreements transfer shall be recorded in the minutes of the Commission and spread court upon appropriate county record.
SECTION 5. The hereof are provisions supplemental relating laws existing subject matter of Act. order, The Commissioners through their minute and the county judges through their orders with the complied require- ments of section four. The landowners point out that the county *4 judges did enter apparently not their orders until this after four, lawsuit was filed. Section though, that the merely requires order be the “spread upon court appropriate county record.” No time limit is with placed compliance this provision.
The plain language section four unambiguously authorizes the exact action taken the Commissioners and the counties. This court has no to construe a that statute is plain and to mean unambiguous other than it anything says. what State, 707, Weston v. 258 Ark. (1975); Johnson Lowman, 8, v. 193 (1936). Ark. 97 S.W.2d When 86 a statute is clear and unambiguous, we do not resort to any exploration the legislative intent the legislature because intention of the must be gathered from the the plain meaning of used in the language Bevill, 805, statute. Cook v. 246 Ark. 440 S.W.2d (1969), 570 J., (Fogleman, dissenting).
5 150, The landowners that Act which has never argue codified, been was for the legislation begin biennial only period 1962, ning 1961 and and that January ending December four, therefore, section does not general legislation not 76-501. Sections three 150 supersede through one of Act do § pertain to the biennial as those to period sections relate only, of federal-aid and The improvement secondary highways. appli is cable time in those frame stated sections. Section specifically four, hand, on the other different subject concerns a matter and no time frame is mentioned. As stated inasmuch as the previously, plain section four be from meaning can ascertained used, this language legislative court not as to may speculate intent in this passing act. The fact that the act has never been codified is not that it is proof legislation special only. Statutory codes are codes and the of an act statutes private absence does not See indicate that act is invalid. Sutherland Statutory Construction, (4th 1985). 28.04 ed. § five of Act states
Section
150
that its
are
provisions
conflict, however,
“supplemental”
existing law. Because of the
four,
between 76-501 and section
of this
repeal by implication
§
portion of the statute occurred
with
act. We
passage
have
explained
repeals
are not favored in the
by implication
law and to
two
produce
result “the
acts must be
upon
same subject and there must be a
between their
plain repugnancy
Blanks,
Milord &
Trustees v.
provisions.”
Arkmo Lumber &
Co.,
272 Ark.
Supply
S.W.2d 349 (1981), quoting,
615
Fulk,
175, 214
v.
Forby
Judge,
Ark.
S.W.2d
(1948).
act passed most
in this
recently operates
repeal
situation as a
first,
only
but
the extent
conflicting
provisions. Id.
Gordon,
v.
237 Ark.
Berry
Section 76-501 provides may Commissioners eliminate Act authorizes highway system; the Commissioners to with the exchange lands county highway system, being which would in effect those trans eliminate parts ferred from the The two plainly laws are repugnant. The remainder of Act 76-501 unaffected by *5 however, and in force. remains accordingly
The chancellor’s order action of the Commis- upholding sioners is affirmed. JJ., Purtle, Glaze, dissent.
Hickman, Justice, dissenting. my In judgment Hickman, Darrell goes great to action majority lengths uphold to Arkansas State I Highway Commission. must dis- respectfully sent, I because would not declare an act valid that has presumably Nor so hold go would I far as to that one of expired. provision an obscure act was a by intended to overrule law that has implication been books since The concedes the majority filed, acted Highway Department after the lawsuit was (not obscure section was never codified published official edition Annotated) of Arkansas Statutes and that we do not favor implication. off all these reasons repeal by Casting good to reach result, one it reaches the other untenable position. Department
The decided to abandon a short road stretch of two other A linking faint highways. argu ment can be a part made that not highway system was “eliminated as whole” Woollard according to v. Arkansas State Comm., Ark. (1952); S.W.2d564 but that argument not simply light will stand the of day because this — south, section of the system, running north was the whole not of a highway. majority has seized the belated reason offered Highway Department justify to aban donment this road. An obscure passed section an act in 1961 was resurrected to the action. The was justify act clearly to intended live beyond December its expressed lifetime. Would legislator have section 4 any thought intended overrule a law that had been on the expressly books so, since 1929? If legislators were deceived. should It be noted that no mention was made the sections were severable. Those laws responsible publishing permanent did not read the act as covering separate subjects. Would layman reading this act think section 4 would stand alone? The act I for itself and speaks set it forth its entirety:
AN ACT Relating to the Improvement Federal-Aid
Secondary Highways; Authorize the State Highway Commission the County Judges of the Respective Counties to Enter Into Agreements Providing for the in Their Exchange Highways Respective Highway Systems; and Other Purposes.
Be It the State by Assembly Enacted General the Arkansas'.
SECTION 1. As soon as be done consonant with may good business State practices, the Commission Highway shall, during the biennial period beginning January 31,1962, contracts, ending 1961 and and December award thereon, issue orders work the of federal- improvement aid secondary in the State the highways System, surfaces of which been have not with or paved concrete $7,500,000, anof amount than asphalt, not less whereof $100,000 not less than be for work in county shall each State. records of the State Highway Department reflect, shall at all times with to each such contract: respect name; award; the number project the date of the the thereof, amount and if in more than one the county, amount in each county; the date issuance of work contractor; order to amount or paid approved Provided, on each payment such counties. project, by that in the event improvement such under- project forces, thereof, taken State the total by by then amount counties, shall be included in the records of Depart- ment, shall be considered the improvements to be made required hereunder. If, 31, 1962,
SECTION 2. than later December contract awards work done State forces as by and/or Section 1 provided by hereof shall amount to less than 100,000 $ in each such amount forthwith then shall county, be the State either expended by by Department, forces, or contract State secondary federal-aid of such County Highway System county; thereof, and in State respect Commission shall County Judge consider recommendations of the as to the or to be project, particular improvement projects, as in undertaken this section required.
SECTION 3. The Commission shall furnish Judge the Governor and the of each with progress reports foregoing require- relation ments, each such to be later than with furnished not report 31,1961, next June day the 20th December following: December 1962 and June SECTION 4. The State Highway Commission and County Judges counties are respective hereby authorized to enter into whereof agreements certain high- *7 in the ways State Highway System become a of the part County Highway System, and certain in the highways County Highway System become a All Highway System. such transfer agreements shall be recorded in the minutes of the Commission and spread upon the appropriate court record.
SECTION 5. The provisions hereof are supplemental to existing laws relating subject matter of this Act.
APPROVED: March Recently, we refused to hold a provision tax code could alter the Act, Freedom of Information though were in direct they conflict. Ragland v. Yeargan, 288 Ark.
(1986); see also Legislative Joint Auditing Committee v. Woos- ley, 291 Ark. 122 S.W.2d (1987). Are less important to Are people? roads and public their maintenance not one of the main functions of government? Can rights of a few citizens be brushed aside?
If the Highway Department wants the to do what authority did, it the legislature is there to grant or deny permission. The Highway Department else, has to followthe lawjust like everyone and is entitled to no more consideration than the least powerful citizen. If anything, a state welfare comes after the agency’s welfare of the people.
Since the law, Highway Department did not follow the road ought to remain in the state system until changed lawfully. Justice,
John I. dissenting. I Purtle, dissent respectfully from the majority opinion because I do not believe the Highway Commission has the to eliminate a of the state portion highway system. The majority concedes that “ex- opinion change roads” is prohibited Ark. Stat. by Ann. 76-501 (Repl. § 1981). The bases its opinion decision on the rather tenuous premise that the relevant portion 76-501 was repealed by implication Act 150 of 1961. Even if this proposition valid, however, I accepted “exchange” as do believe the in accordance with the law. accomplished The commissioners entered minute order No. 84-413 and No. 84-414 on September 1984. These orders added and deleted certain sections of State Van Burén Road 68 and Road 6. The state Searcy County thereby 7.2 miles of road its incorporated system into and eliminated 6.1 miles. the state retained that Although portion road which Creek, transverses it eliminated the Farkleberry Creek Archey section from the state The terrain in the Archey narrow, Creek section is and the road is steep, rocky, crooked. was, is, It expense improving maintaining this section which makes this road undesirable and motivated the state to abandon it.
Neither minute order No. 84-413 or No. 84-414 mentioned the exchange of roads between the counties and the state. In fact *8 there were two only conditions contained in each order: these requirements were that each furnish of county rights way, clear easements, sections, utility to the added and that the new sections be hard surfaced to meet the federal standards.
Other mentioned, than the terrain features already the effect of the change orders was to a 6.1 drop mile section of highway, south, which runs section, north and generally add a 7.2 mile which runs east and west. Formerly, 254’s western Highway the southern (actually end of the deleted section) terminus was at 16, Highway almost due south of where 254 entered Now, Searcy County. 27, the western is at terminus some 12 miles west of the former terminus.
Minute order No. 85-592 amended the two previously mentioned orders and for the provided immediate acceptance the new section into the state The order highway system. stated that the new section of in the Chimes community, was causing traveling public difficulty because of deteriorat- ing road conditions and inclement weather. This amendment ordered the inclusion of this section without the fulfillment of the previously conditions. imposed filed suit appellants against the Commission on January 12, 1986, 1986. On February Searcy County Judge
entered an order reciting the Commission’s minute order No. 85- 592 and were stating “exchanged.” A like order was entered the Van Burén County Judge February 18, 1986. This order also cited minute order No. 85-592 as for the “exchange.” It is obvious that the quite county orders were entered in an effort to “shore the Commission’s up” There is no need to position. shut the barn door after the horse is out.
I agree with the
that Ark.
majority
Stat. Ann.
76-501
states that the Commission
clearly
does not have the authority to
However,
eliminate
the state
I
disagree with the
on the
majority
meaning of Act 150 of 1961.
There
good
reason not to
Act 150 because it was
codify
not intended
clearly
to be a
statute.
1 of
permanent
Section
Act
that
the biennial
provides
“during
period beginning January
12, 1962,
1961 and ending December
the Commission
shall. . . .” Section 3
provides
the Commission shall furnish
30,1963.
annual
each six
reports
months until June
All of the Act
except Section 4 unquestionably
applies solely
period
1, 1961,
time between
and June
January
1963.
Even if Section 4 is applicable beyond that
we must
period,
still read it
with other
together
law on the same subject. The last
sentence of Section 4 of Act 150 states: “All such transfer
agreements shall be recorded in the minutes of the Commission
spread upon
appropriate
record.” Until after
filed,
present suit was
there was
no
absolutely mention of the
transfer of the abandoned section of State
254 to the
counties.
there was no
Certainly
transfer
even
agreement
alluded
to in the minute orders of September
*9
The majority correctly
the law of
quotes
statutory construc
tion. The basic rule is to read a statute according to its
plain
State,
unambiguous
words. Weston v.
250 Ark.
528 S. W.2d
(1975).
472
We do not construe a statute when the
is
language
Lowman,
clear and
v.
plain. Johnson
193 Ark.
97 S.W.2d 86
(1936). In
construction,
with these rules of
keeping
it is clear that
the Highway Commission cannot abandon
any
highway system. Under the language of Act 150 the Commission
however,
may,
exchange part of the state highway system by
agreement with the
counties. In
respective
case there
present
no such
there could be
agreement
consequently
was no such
legislation,
as general
Even if Act 150 construed
exchange.
of the state
of any part
law
for the abandonment
does not provide
SERVICE,
v. PRIDGEN
INC.
UNITED PARCEL
SECURITY,
INC.
86-237 Court of Arkansas Supreme delivered April Opinion Lindsey,
Wright, Jennings, appellant. Belew Blank- by: Leroy & Harkey, Walmsley, Blankenship, for appellee. enship, is dismissed be Hickman, Justice. This appeal
Darrell cause the order from is not an order appealed appealable Arkhola Sand & Gravel Co. v. according 54(b). ARCP Rule Hutchinson, (1987). Ark. Beard, Inc., sued Pridgen Security,
Wanda an employee injuries as a result of she negligence United Parcel Service for filed a guard. suffered while at UPS as a UPS working security indemnification, against Pridgen asking third party complaint agree- agreement Pridgen because of an between UPS. from claim made ment UPS required Pridgen indemnify