Opinion
For opinion see 727 S.W.2d 836.
HICKMAN, Justice, dissenting.
In my judgment the majority goes to great lengths to uphold the action of the Arkansas State Highway Commission. I must respectfully dissent, because I would not declare an act valid that presumably has expired. Nor would I go so far as to hold that one provision of an obscure act was intended by implication to overrule a law that has been on the books since 1929. The majority concedes the Highway Department acted after the lawsuit was filed, that the obscure section was never codified (not published in the official edition of Arkansas Statutes Annotated) and that we do not favor repeal by implication. Casting off all these good reasons to reach one result, it reaches the other untenable position.
The Highway Department decided to abandon a short stretch of road linking two other state highways. A faint argument can be made that a part of the highway system was not "eliminated as whole" according to Woollard v. Arkansas State Highway Comm., 220 Ark. 731, 249 S.W.2d 564 (1952); but that argument simply will not stand the light of day because this section of the system, running north and south, was the whole--not a part of a highway. The majority has seized the belated reason offered by the Highway Department to justify the abandonment of this road. An obscure section of an act passed in 1961 was resurrected to justify the action. The act was clearly not intended to live beyond December 31, 1962, its expressed lifetime. Would any legislator have thought section 4 was intended to expressly overrule a law that had been on the books since 1929? If so, the legislators were deceived. It should be noted that no mention was made the sections were severable. Those responsible for publishing permanent laws did not read the act as covering separate subjects. Would any layman reading this act think section 4 would stand alone? The act speaks for itself and I set it forth in its entirety:
AN ACT Relating to the Improvement of Federal-Aid Secondary Highways; to Authorize the State Highway Commission and the County Judges of the Respective Counties to Enter Into Agreements Providing for the Exchange of Highways in Their Respective Highway Systems; and for Other Purposes.
Be It Enacted by the General Assembly of the State of Arkansas:
SECTION 1. As soon as may be done consonant with good business practices, the State Highway Commission shall, during the biennial period beginning January 1, 1961 and ending December 31, 1962, award contracts, and issue work orders thereon, for the improvement of federal-aid secondary highways in the State Highway System, the surfaces of which have not been paved with concrete or asphalt, of an amount not less than $7,500,000, whereof not less than $100,000 shall be for work in each county of this State. The records of the State Highway Department shall at all times reflect, with respect to each such contract: the project number and name; the date of the award; the amount thereof, and if in more than one county, the amount in each county; the date of the issuance of the work order to the contractor; and the amount paid or approved for payment on each such project, by counties. Provided, that in the event any such improvement project is undertaken by State forces, then the total amount thereof, by counties, shall be included in the records of the Department, and shall be considered a part of the improvements required to be made hereunder.
SECTION 2. If, not later than December 31, 1962, contract awards and/or work done by State forces as provided by Section 1 hereof shall amount to less than $100,000 in each county, then such amount shall forthwith be expended by the State Highway Department, either by contract or by State forces, on federal-aid secondary highways in the County Highway System of such county; and in respect thereof, the State Highway Commission shall consider the recommendations of the County Judge as to the particular improvement project, or projects, to be undertaken as in this section required.
SECTION 3. The State Highway Commission shall furnish the Governor and the County Judge of each county with progress reports in relation to the foregoing requirements, with each such report to be furnished not later than the 20th day next following: December 31, 1961, June 30, 1962, December 31, 1962 and June 30, 1963.
SECTION 4. The State Highway Commission and the County Judges of the respective counties are hereby authorized to enter into agreements whereof certain highways in the State Highway System become a part of the County Highway System, and certain highways in the County Highway System become a part of the State Highway System. All such transfer agreements shall be recorded in the minutes of the Commission and spread upon the appropriate county court record.
SECTION 5. The provisions hereof are supplemental to existing laws relating to the subject matter of this Act.
APPROVED: March 1, 1961.
Recently, we refused to hold a provision in the tax code could alter the Freedom of Information Act, though they were in direct conflict. Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986); see also Legislative Joint Auditing Committee v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987). Are highways less important to people? Are public roads and their maintenance not one of the main functions of state government? Can the rights of a few citizens be brushed aside?
If the Highway Department wants the authority to do what it did, the legislature is there to grant or deny that permission. The Highway Department has to follow the law just like everyone else, and is entitled to no more consideration than the least powerful citizen. If anything, a state agency's welfare comes after the welfare of the people.
Since the Highway Department did not follow the law, the road ought to remain in the state system until changed lawfully.