Who controls Arkansas county roads, the county judge or the quorum court, and can a court order either of them to act?

Plain-English summary

State Representative James McLean asked AG Dustin McDaniel eight connected questions about the respective authority of the county judge and the quorum court over Arkansas county roads, grounded in Article 7, § 28 (granting "exclusive original jurisdiction" over roads to the county court) and Amendment 55, § 3 (assigning the county judge the duty to "operate the system of county roads").

The AG's synthesis, drawing heavily on the attached prior Opinion 97-181 and Reding v. Wagner, 350 Ark. 322 (2002):

1. Is Arkansas Game & Fish Commission v. Lindsey, 292 Ark. 314 (1987), still the law? Yes. Lindsey identifies three ways to designate a road as a county road: (a) dedication of land/right-of-way/easement to the county with acceptance by the county judge under A.C.A. §§ 27-66-207 and -208; (b) condemnation under A.C.A. §§ 14-298-101 to -125; (c) designation as a mail or bus route under A.C.A. §§ 27-66-205 and -206.

2. Is acceptance of a dedication executive or judicial? Executive. Despite some statutes suggesting the "county court" accepts dedications, courts (notably Reding v. Wagner) read these as referring to the county judge acting in an executive capacity. The acceptance is discretionary; subject to quorum-court control over appropriations and official road-planning ordinances; not subject to mandamus (discretionary acts are not).

3. Is a condemnation under A.C.A. §§ 14-298-101 to -125 discretionary? Yes. The "full power and authority" the statute confers on the county court (read as the county judge post-Amendment 55) is discretionary, not subject to mandamus.

4. Is mail/bus-route designation under §§ 27-66-205 and -206 discretionary? Yes. The statutes authorize the county judge "in his or her discretion" to declare any road already used for mail or bus service to be a county road. Discretionary, executive, and (in all likelihood) exclusive of quorum-court control.

5. Would a quorum-court ordinance directing the county judge to operate, maintain, improve, or repair a road violate Amendment 55 or Article 7, § 28? The AG did not decide this in the abstract. Only a finder of fact reviewing the ordinance's precise terms could answer it. The county attorney, then the courts, would be better placed to review a particular ordinance.

6. Is the county judge's road authority subject to mandamus, and would mandamus violate Article 7, § 28? No to both. Discretionary executive authority is not subject to mandamus. Amendment 55 superseded any contrary earlier constitutional provision on this allocation.

7. What's the difference between a private road, a public road, and a county road? A county road is one designated under one of the three Lindsey methods. A public road is open to public use but may not have been designated as a county road for maintenance purposes. A private road is privately owned and access-restricted. A county judge generally cannot devote county resources to improving or maintaining a private road (Article 12, § 5 prohibits county funding of private interests). The county judge has discretion to manage county roads consistent with the quorum court's official road plan, and may by policy decline to do specific things.

8. Can a county judge adopt minimum road standards for accepting roads into the county system? Yes, consistent with the official road plan and available funding. The county judge has discretion to accept or reject roads, including based on finite resources, so long as he does not abuse his discretion.

The opinion repeatedly cautions that determining exactly when a specific ordinance, ruling, or refusal to act crosses the constitutional line is fact-intensive and properly handled by the county attorney in the first instance, with judicial review available for abuse-of-discretion arguments.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What's the relationship between Article 7, § 28 and Amendment 55 in Arkansas county road law? Article 7, § 28 gives the "county court" (a judicial office) "exclusive original jurisdiction" over roads. Amendment 55, § 3 added that the "county judge" (an executive office presided over by the same person) "shall ... operate the system of county roads" in an executive capacity. The county court still has limited judicial authority over roads (e.g., Yates v. Sturgis gives it eminent-domain power in narrow cases), but the day-to-day operational authority belongs to the county judge.

Why can't mandamus reach the county judge's road decisions? Because mandamus enforces ministerial duties, not discretionary ones (Russell v. Webb; State ex Rel. Richardson v. Mack). The county judge's road authority is discretionary, so mandamus is the wrong tool.

Can a quorum court force a county judge to fix a road? The opinion gives no categorical answer for a particular ordinance. The quorum court has a limited planning role, while operation of county roads is the judge's executive function. The AG said only a finder of fact could decide whether specific ordinance language unlawfully intrudes on that function; he recommended review by the county attorney and, ultimately, the courts.

Can a county judge spend county funds maintaining a private road? No. Article 12, § 5 of the Arkansas Constitution prohibits county appropriations to private parties. Pogue v. Cooper, Cunningham v. Stockton, Needham v. Garner and a line of AG opinions hold that county equipment and labor cannot be used to maintain private property. Incidental private benefit from a primarily public-purpose maintenance is allowed; pure private maintenance is not.

What is the difference between the "county court" and the "county judge"? They're the same person wearing different hats. The "county court" is a judicial body presided over by the county judge in a judicial capacity (Article 7, § 28; A.C.A. § 14-14-1105(a)). The "county judge" is an executive officer (Amendment 55, § 3; A.C.A. § 14-14-1102). When you read pre-Amendment 55 road statutes that say "county court," they're now generally read to mean "county judge" acting in an executive capacity, except for specific narrow judicial functions (e.g., eminent domain).

Can a county judge adopt road standards and refuse to accept roads that don't meet them? Yes. The county judge has discretion to set minimum standards and to decline to accept roads into the county system, including for budgetary reasons. The discretion is reviewable only for abuse.

Background and statutory framework

The opinion sits at the intersection of three constitutional/statutory layers:

• Article 7, § 28: county court has "exclusive original jurisdiction" over roads, taxes, and bridges.
• Amendment 55, § 3 (1974): county judge "shall ... operate the system of county roads" in an executive capacity.
• Enabling legislation (Act 742 of 1977): codified the executive nature of the county judge's road authority. A.C.A. § 14-14-1101 et seq. now structures the relationship.

The three Lindsey methods of road designation (acceptance of dedication, condemnation, mail/bus route designation) sit in different chapters of the Code: A.C.A. §§ 27-66-207, -208 (dedication); A.C.A. §§ 14-298-101 to -125 (condemnation); A.C.A. §§ 27-66-205, -206 (mail/bus). Reding v. Wagner confirmed the executive character of the county judge's discretionary power post-Amendment 55.

The quorum court's authority is structural: Amendment 55, § 1(a) authorizes local legislative authority not denied by the Constitution or by law; A.C.A. § 14-14-802(b) lists "roads and bridges" among the services the quorum court can provide; A.C.A. § 14-17-208 directs the quorum court to adopt an official road plan. But A.C.A. §§ 14-14-805(13) and -807(5) bar the quorum court from passing laws contrary to general state law or from directing county officers in their statutory functions.

The opinion attaches and incorporates Op. Att'y Gen. 97-181 (Bryant), the seminal pre-2014 synthesis of these provisions, with the current AG's express concurrence.

Citations

• Ark. Const. art. 7, § 28 (county court exclusive original jurisdiction)
• Ark. Const. art. 12, § 5 (no county appropriations to private parties)
• Ark. Const. amend. 55, § 1(a) (quorum court local legislative authority)
• Ark. Const. amend. 55, § 3 (county judge to operate county roads)
• A.C.A. § 14-14-502 (separation of powers in county government)
• A.C.A. § 14-14-802(b) (quorum court services)
• A.C.A. § 14-14-805(13), -807(5) (limits on quorum court authority)
• A.C.A. § 14-14-1101 (county judge executive powers)
• A.C.A. § 14-14-1102 (executive nature of road authority)
• A.C.A. § 14-14-1105 (county court jurisdiction post-Amendment 55)
• A.C.A. § 14-17-208(h)(1) (quorum court official road plan)
• A.C.A. §§ 14-298-101 to -125 (condemnation statutes)
• A.C.A. § 14-298-120 (Supp. 2013) (modernized procedure)
• A.C.A. § 27-66-204 (mail-route designation by county judge)
• A.C.A. §§ 27-66-205, -206 (mail/bus route designation)
• A.C.A. §§ 27-66-207, -208 (dedication and acceptance)
• Arkansas Game & Fish Commission v. Lindsey, 292 Ark. 314, 730 S.W.2d 474 (1987) (three methods of county-road designation)
• Reding v. Wagner, 350 Ark. 322, 86 S.W.3d 386 (2002) (executive nature of county judge's road authority)
• Yates v. Sturgis, 311 Ark. 618, 846 S.W.2d 633 (1993) (county court retains eminent-domain jurisdiction in narrow cases)
• Butler v. City of Little Rock, 231 Ark. 834, 332 S.W.2d 812 (1960) (quorum court / county judge authority interplay)
• Russell v. Webb (mandamus elements)
• State ex Rel. Richardson v. Mack, 191 Ark. 350, 86 S.W.2d 11 (1935) (discretion not subject to mandamus)
• Mears, County Judge v. Hall, 263 Ark. 827, 569 S.W.2d 91 (1978) (executive discretion and mandamus)
• Pogue v. Cooper, 284 Ark. 105, 679 S.W.2d 207 (1984) (no county labor/equipment for private property)
• Cunningham v. Stockton, 235 Ark. 345, 359 S.W.2d 808 (1962)
• Needham v. Garner, 233 Ark. 1006, 350 S.W.2d 194 (1961)
• Prewitt v. Warfield, County Judge, 203 Ark. 137, 156 S.W.2d 238 (1941) (county court authority to lay out county road)
• Johnson v. Wylie, 284 Ark. 76, 679 S.W.2d 198 (1984) (school bus route designation)
• Op. Att'y Gen. 97-181 (foundational synthesis, attached)
• Op. Att'y Gen. 2001-038 (quorum court cannot impede county-judge road authority)
• Op. Att'y Gen. 2006-050 (county judge's discretionary road power)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
DusnN McDANIEL
Opinion No. 2014-021
July 7, 2014
The Honorable James McLean
State Representative
Post Office Box 2001
Batesville, Arkansas 72503-2001
Dear Representative McLean:
I am writing in response to your request for my opinion on a series of questions you characterize as designed "to ascertain the [sic] whether under Arkansas law and Article 7, § 28 and Amendment 55 of the Arkansas Constitution the exercise of the authority granted the county judge, as an executive or by county court action, is a matter of discretion confided in the county judge or a matter subject to control by another branch of government such as the Quorum Court or the state judiciary." You have further captioned your letter with the following subject designation: Re: Authority of County Judges over county roads Arkansas Constitution: Amendment 55 ACA 14-14-1101 and 1102 Your itemized questions are as follows:

1. Is the law as pronounced in AGFC v. Lindsey, 292 Ark. 314
   (1987) still the law in Arkansas? {The ways to designate a road to a be a county road: (1). Dedication of a land, a right of way or easement to county and acceptance by the county judge in accordance with A.C.A. §§ 27-66-207 and -208; (2). Condemnation by the county judge in accordance with A.C.A. § 14-298-101 to -125; or (3). By having the public road designated by the county judge as a mail or bus route to be 323 CENTER STREET, SUITE 200. LITTLE ROCK, ARKANSAS 72201 TELEPHONE (501) 682-2007 •FAX (501) 682-8084 INTERNET WEBSITE. http://www.ag.state.ar.us/ The Honorable James McLean State Representative Opinion No. 2014-021 Page 2 accepted for maintenance by the county m accordance with A.C.A. §§ 27-66-205 and 206.}
2. Is the acceptance by a county judge of a dedication of land, right
   of way, or an easement an executive or judicial function? An exclusive and discretionary exercise of power of the county judge under Arkansas Law? Subject to control by the Quorum Court? Subject to control by the state judiciary by writ of mandamus?
3. Is a condemnation by the county judge in accordance with
   A.C.A. §§ 14-298-101 to -125 an exclusive and discretionary exercise of the power of the county judge by Arkansas Law? Subject to control by the Quorum Court? Subject to control by the state judiciary by writ of mandamus?
4. Is the authority to designate a road by the county judge as a mail
   or bus route in accordance with A.C.A. §§ 27-66-205 and -206 an executive or judicial function following adoption of Amend. 55? Is this authority an exclusive and discretionary exercise of the power of the county judge under Arkansas Law? Subject to control by the Quorum Court? Subject to control by the state judiciary by writ of mandamus?
5. Would an ordinance by the Quorum Court directing or purporting
   to direct a county judge to operate, maintain, improve or repair county road(s) or bridge(s) be in violation of Amendment 55? A violation of the provisions of Art. 7, 28 of the Arkansas Constitution?
6. Is the exclusive authority and discretion of the county judge
   under Amendment 5 5 to operate, maintain, improve or repair a county road(s) and bridge(s) be [sic] subject to control of the state judiciary by writ of mandamus? A violation of Article 7, § 28 of the Arkansas Constitution confiding in the county judge authority over the disbursement of money for county purposes, such as road or bridge repairs or maintenance?
7. What is the ditlerence between a private road, a public road and a
   county road (as identified in Lindsey above and Amendment 55)? May a county judge exercise his discretion to direct road funds, The Honorable James McLean State Representative Opinion No. 2014-021 Page 3 road crews or road equipment to improve, repair or maintain a private road? May a county judge exercise his discretion to direct road funds, road crews or road equipment to improve, repair or maintain a public road or county road? May a county judge by policy or otherwise decline to do so?
8. May a county judge adopt minimum road standards for
   consideration of acceptance of a road by a.county into the county road system (such as minimum dedicated right of way, roadway and drainage standards)? Is a county judge to accept a road as a county road into the county road system if it meets the county road standards? May a county judge decline to exercise his discretion to accept a road into the county road system for reasons that the county has finite road revenues and resources and the county cannot afford to maintain the subject road or roads? RESPONSE Considered together, your questions reflect a common concern regarding the respective control over county roads by the county judge and the quorum court. You focus in particular upon the interplay among Ark. Const. art. 7, § 28, Ark. Const. amend. 55 and the implementing legislation bearing on the controlling constitutional provisions. I am unable to determine precisely what dispute, if any, prompted your questions. Consequently, my responses to your questions will of necessity focus on what I suspect will be controlling principles of law. Without knowing the context of your questions, I can only opine generally regarding what actions are "executive or judicial," "purely discretionary," and "subject to the control" of other branches of government. Similarly, I am unable to declare in the abstract whether an action by a county official might warrant judicial relief by writ of mandamus, or whether a quorum court ordinance relating to roads or bridges might be constitutionally offensive. Assuming your questions arise from some specific dispute(s) regarding the respective authority of a county judge and a quorum court, your inquiry would be better directed to the county attorney, who could presumably address the issues with full knowledge of the pertinent circumstances. I am neither authorized nor situated to conduct any such inquiry in a formal opinion. The Honorable James McLean State Representative Opinion No. 2014-021 Page 4 Question 1: Is the law as pronounced in AGFC v. Lindsey, 292 Ark. 314 (1987) still the law in Arkansas? {The ways to designate a road to a be a county road: (1). Dedication of a land, a right of way or easement to county and acceptance by the county judge in accordance with A.C.A. §§ 27-66-207 and -208; (2). Condemnation by the county judge in accordance with A.C.A. § 14-298-101 to -125; or (3). By having the public road designated by the county judge as a mail or bus route to be accepted for maintenance by the county in accordance with A. C.A. §§ 2 7-66-205 and 206.} Yes.1 Question 2: Is the acceptance by a county judge of a dedication of land, right of way, or an easement an executive or judicial function? An exclusive and discretionary exercise of power of the county judge under Arkansas Law? Subject to control by the Quorum Court? Subject to control by the state judiciary by writ of mandamus? The first part of your question invites some discussion regarding the relationship between, on the one hand, accepting a dedication of property for public use and, on the other, designating a thoroughfare as a county road. The Arkansas Code appears to distinguish these two actions in the following: (a) The county judge in his or her discretion may designate as a county road any street or road dedicated to the public as a public thoroughfare, provided that a bill of assurance making the dedication is properly recorded. (b) Unless a plat clearly reflects roads that are private, the county recorder shall not accept any plats in the unincorporated area of the county without the county court's acceptance of (1) Roads for perpetual maintenance; and (2) Dedication of land for public purposes.2 1 See Ops. Att'y Gen. 96-272 and 91-434 (acknowledging the continued validity of this case). 2 A.C.A. § 27-66-207 (Rep!. 2010) (emphases added). The Honorable James McLean State Representative Opinion No. 2014-021 Page 5 This statute identifies the county judge as the agent designating a county road as such and the county court as the agent accepting a road for "perpetual maintenance" and land in general "for public purposes." The question arises, then, whether the "county judge," acting in his executive capacity, indeed "accepts" a dedication, as your question suggests, or, alternatively, whether the "county court" does so in a judicial capacity. 3 In my opinion, notwithstanding the statute's contrary suggestion, a reviewing court would most likely characterize this "acceptance" as an executive action properly undertaken by the county judge. My inquiries suggest that the process described in the above quoted statute in practice involves only the county judge's determining prior to the filing of a plat by the recorder that the issue of road maintenance has been properly addressed. 1:'he county judge reportedly bases his approval either upon a private developer's commitment to maintain roads in a development or upon the county's judge's own commitment, normally reflected by a seal of acceptance on the documents to be filed, reflecting the county's 3 For a discussion of this distinction between executive and judicial functions, see the attached Opinion 97- 181, which describes as follows the status of the county judge in relation to the county court in the wake of Amendment 55: The "county court" strictly speaking, is neither the "county judge" nor the quorum court. It is, however, presided over by one judge, the "county judge," who, when so presiding, acts in a judicial, rather than an executive capacity. See Arkansas Constitution, art. 7, § 28 and A.C.A. § 14-14-1105(a). It has been stated that: "[a]lthough the Arkansas Supreme Court has meticulously separated the judicial and executive functions of the county judge on a case-by-case basis, there is still great confusion in Arkansas with respect to what the county court is." Comment, County Government Reorganization in Arkansas, 28 Ark. L. Rev. 226, 235 (1974). It was stated, prior to the adoption of Amendment 55, that: "Jn each county there is a court, presided over by a county judge, known as the county court. . . . The county court is the principal instrument of county government and performs a mixture of executive and legislative as well as judicial tasks." Greenebaum, Arkansas' Judiciary: It's [sic] History and Structure, 18 Ark. L. Rev. 152 (1964). Since the adoption of Amendment 55, the county court exercises fewer powers (former powers now being exercised either by the quorum court, or by the county judge in an executive capacity), but it clearly still exists, and consists of the county judge, wearing a judicial hat. See again, A.C.A. § 14-14-1105. It is my opinion that the references to the "county court" in A.C.A. §§ 14-298-101 to -116, enacted in 1871, refer to this "court." For further discussion of the relationship between the county judge and the county court, see Op. Att'y Gen. 2007-009. Subsection 14-14-1105(b) of the Code (Repl. 1998) sets forth the matters over which the county court "shall have original jurisdiction." The Honorable James McLean State Representative Opinion No. 2014-021 Page 6 acceptance of the roads. No process that could even remotely be characterized as "judicial" obtains at any stage of such "acceptance."4 As suggested above, the ultimate source of a county judge's executive authority arises from Amendment 55, § 3, which provides in pertinent part: The County Judge, in addition to other powers and duties provided for by the Constitution and by law, shall ... operate the system of county roads. Implementing this provision, the statute referenced m the subject line of your factual statement provides in pertinent part: Arkansas Constitution, Amendment 55, § 3, established the following executive powers to be administered by the county judge:

(2) To authorize and approve disbursement of appropriated county funds; (3) To operate the system of county roads[.]5 The county judge is further charged with responsibility over the following:
. . . the administrative actions affecting the conduct of a plan of public roadways and bridges through the unincorporated areas of the county, including the maintenance and construction of public 4 Support for reading the above statute to refer to the county judge, rather than the county court, perhaps exists in Reding v. Wagner, 350 Ark. 322, 327, 86 S.W.3d 386 (2002), which affirmed the authority, in the wake of Amendment 55's adoption, of a county judge's discretionary power to change, alter, or relocate county roads, notwithstanding the fact that the statute at issue - currently codified at A.C.A. § 14-298-120 (Supp. 2013) - assigns that authority to the county court. Specifically invoking "[a] county judge's executive authority" under Amendment 55 and the statute itself, the court concluded: "In short, county judges in Arkansas are given the executive power to make discretionary decisions regarding the operation of the system of county roads." 35 Ark. at 327. Accord Ops. Att'y Gen. 2006-050 and 88-364. 5 A.C.A. § 14-14-l IOl(a) (Repl. 1998); accord A.C.A. § 14-14-1102(a) (Supp. 2013) and Op. Att'y Gen. 2001-319. The Honorable James McLean State Representative Opinion No. 2014-021 Page 7 roadways and bridges and roadway drainage designated as eligible for expenditure of county funds. 6 The county judge has further been generally charged with "custody of county property" pursuant to Amendment 5 5, § 3. 7 With respect generally to grants of property and rights therein to the county, the Arkansas Code provides as follows: The county judge, as the chief executive officer, is authorized to accept, in behalf of the county, gifts, grants, and donations of real or personal property for use of the county. He or she may apply for, enter into necessary contracts, receive, and administer for and in behalf of the county, subject to such appropriation controls that the quorum court may elect to adopt by ordinance, funds from the federal rovernment, from other public agencies, or from private sources. The count~ judge's administrative authority necessarily involves an exercise of discretion, subject to the control over appropriations invested in the quorum court and the quorum court's general authority to adopt an official county road plan governing subdivision, setback and entry control ordinances.10 With regard to the executive nature of the county judge's authority, the enabling legislation to Amendment 55, Act 742of1977, declared as follows: The General Assembly determines that the executive powers of the county judge as enumerated in Arkansas Constitution, Amendment 6 A.C.A. § 14-14-l 102(b)(l)(A)(i) (Supp. 2013). 7 Accord A.C.A. § 14-14-1101(a)(5). 8 A.C.A. § 14-14-l 102(a)(b)(7)(A) (Supp. 2013). 9 See, e.g., Reding v. Wagner, 350 Ark. 322, 86 S. W.3d 386 (2002) (upholding the discretionary power of the county judge to change, alter, or relocate county roads, citing his executive authority under both Amendment 55, § 3 and A.C.A. § 14-298-120). 10 See A.C.A. § 14-14-802(b)(2)(G)(i) (Rep!. 1998) and Ops. Att'y Gen. 2006-050 and 96-375 (discussing the interrelationship between county-judge and quorum-court authority). The Honorable James McLean State Representative Opinion No. 2014-021 Page 8 55, § 3 are to be performed by him in an executive capacity and not by order of the county court. 11 My predecessor elaborated on these provisions in the attached Ark. Op. Att'y Gen. No. 97-181, with which I fully concur. I need not repeat that analysis here. With respect to what you refer to as "control by the Quorum Court," a quorum court is constitutionally authorized to exercise "local legislative authority not denied by the Constitution or by law."12 By statute, moreover, a quorum court may provide through ordinance for "roads and bridges."13 The Code further charges the quorum court with adopting an "official road plan for the unincorporated areas of the county,"14 containing at least the following: The plan shall include, as a minimum, designation of the general location, characteristics, and functions of roads, and the general location of roads to be reserved for future public acquisition. The plan may also recommend, 15 among other things, the removal, relocation, widening, narrowing, vacating, abandonment, change of
. f bl' 16 use, or extens10n o any pu tc ways.
Upon recommendation of the county planning board, the quorum court may further establish setback lines and control entry to specified streets and highways designated in the plan.17 Although the quorum court may authorize, say, a "road" as a "service . . . not expressly prohibited by the Arkansas Constitution or by law,"18 it cannot compromise the constitutional and statutory powers located in the 11 A.C.A. § 14-14-1102(a) (Supp. 2013). See also Op. Att'y Gen. 88-364 (discussing the county judge's "executive authority to order improvement of [a county] road"). 12 Ark. Const. amend. 55, § l(a). 13 A.C.A. § 14-14-802(b)(2)(G)(i) (Rep!. 1998). 14 A.C.A. § 14-17-208(h)(l). 15 I have highlighted this term in order to underscore the fact that the legislature apparently did not intend this statute to invest the quorum court with dispositive control over. the listed decisions. 16 Id. (emphasis added). 17 Id. at subsections U) and (k). 18 Id. at subsection (b)(l). The Honorable James McLean State Representative Opinion No. 2014-021 Page 9 county judge/county court under the authority discussed above and in Opinion 97- 181. One of my predecessors offered the following summation of the relationship between the quorum court and the county judge with respect to control over county roads: As a general proposition of law, neither a quorum court nor a city council possesses authority to pass an ordinance that would interfere with the exclusive original jurisdiction of the county court under Article 7, Section 28 of the Arkansas Constitution,l191 or with the county judge's operation of the system of county roads under Section 3 of Amendment 55 to the Arkansas Constitution, or with the constitutional or statutory authority of the county judge which existed at the time of the adoption of amend. 55, § 3.20 My predecessor further paraphrased as follows the conclusion regarding this issue set forth in the attached Opinion 97-181 :
[I]t is apparent from a reading of that opinion that a local (county or city) ordinance regarding roads could be unconstitutional if it interfered with the constitutional and statutory power of the county judge or county court over county roads. Whether such "jurisdictional encroachment" occurs will depend upon the particular ordinance in question.r211 I cannot, in the limited format of an opinion from this office, speculate as to the constitutionality of any number of hypothetical ordinances. This will be a matter for the county or city attorney to address when considering specific proposed ordinances, bearing in mind the principles enunciated in the Arkansas Supreme Court cases and the Attorney General opinions cited in your correspondence. 22 19 Ark. Const. art. 7, § 28 grants the county court, among other things, "exclusive original jurisdiction in all matters relating to ... roads [and] bridges." 20 Op. Att'y Gen. 2001-038. 21 Quoting Butler v. City of Little Rock, 231 Ark. 834, 839, 844 S. W.2d 812 ( 1960). 22 Op. Att'y Gen. 2001-038. The Honorable James McLean State Representative Opinion No. 2014-021 Page 10 As this passage suggests, determining precisely when a quorum court's exercise of its assigned authority clashes with the county judge's control over roads is a fact- intensive enterprise that lies beyond the scope of an official Attorney General opinion. Specifically with respect to authority over the designation of county roads, my predecessor in Opinion 97-181 further offered the following accurate summary regarding control over roads: It has been held at various times that the county court or the county judge have [sic] authority to designate and open county roads. See, M·, Prewitt v. Warfield, County Judge, 203 Ark. 137, 1566 S.W.2d 23 8 ( 1941) (county court has authority to lay out county road under what is now A.C.A. § 14-298-121); [Lindsey] (county judge has authority to enter an order declaring a mail route or a school bus route a county road under A.C.A. § 27-66-205 and -206); and Johnson v. Wylie, 284 Ark. 76, 679 S.W.2d 198 (1984) (county judge has authority to declare a school bus route a county road under A.C.A. § 27-66-206). In my opinion the quorum court, through the exercise of its legislative authority, may not interfere with the ultimate authority of the county judge or county court in this regard. See, M·· A.C.A. § 14-14-502 (providing for separation of powers between the departments of county government). See also Op. Att'y Gen. 92-081 (concluding that the county judge has authority to accept private roads into the county road system, at least under A.C.A. §§ 27-66-204, -205, -206, -207 and -208, without the approval of the quorum court). Some uncertainty may nevertheless exist regarding the scope of a county judge's constitutional control over roads and bridges, as distinct from the control the legislature has assigned the quorum court pursuant to the statutes discussed above.23 As my immediate predecessor has noted in this regard: "It is unclear what result a court would reach .in addressing such a conflict, should one exist," adding that one reason for this lack of clarity is the absence in the Code or case law of "anything stating exactly what it means for the county judge to 'operate the system of county roads' under amendment 5 5, § 3. "24 23 See notes 12 through I 8, supra, and accompanying text. The Honorable James McLean State Representative Opinion No. 2014-021 Page 11 Whatever confusion may exist on this score, I consider it significant that the authority of the quorum court to adopt an official road plan has never been the subject of any constitutional challenge. To be sure, there may be debate regarding precisely what degree of control the legislature intended to or was authorized to impose in declaring, in A. C .A. § 14-14-802(b ), that the quorum court "shall provide ... for ... necessary services" that include "roads" and "bridges." This directive might be read either as affording direct quorum-court control over such issues as road or bridge location or, alternatively, as mandating no more than that such "necessary services" be adequately funded. Without attempting to resolve this debate, I will venture only that this statutory grant cannot be read as affording the quorum court authority that would impinge on the county judge's constitutional right to "operate the system of county roads. "25 I cannot predict how a court would balance these interests in any particular case. With regard to the third part of your question, I assume you are concerned to know whether, for instance, a county judge's decision to accept property for use as a county road would warrant relief by mandamus under the following standard: A writ of mandamus is appropriate if three factors are established: (1) the duty to be compelled is ministerial and not discretionary; (2) the petitioner has shown a clear and certain right to the relief sought; and (3) the absence of any other adequate remedy. 26 In my opinion, because a county judge's acceptance of property is "discretionary," it is insusceptible of challenge by petition for writ of mandamus under this standard. 27 24 Op. Att'y Gen. 2006-050. 25 As my predecessor observed in Opinion 97-181, this authorization extends even to the point of enabling a county judge to designate as a county road a thoroughfare that does not meet standards purportedly mandated in a quorum court ordinance. See also Ops. Att'y Gen. 2001-038 (quorum court may not pass an ordinance abridging the county judge's and the county court's constitutional control over county roads); 96-375 (county judge may name county roads without quorum court approval); 92-081 (county judge has authority to designate and to improve county roads without quorum court approval). 26 Russell v. Webb, 20 I I Ark. 307, 4, citing Parker v. Crow, 2010 Ark. 3 71, S.W.3d 27 See, e.g., State ex Rel. Richardson v. Mack, 191 Ark. 350, 86 S.W.2d 11 (1935) (holding that statute did not abridge county judge's discretion to order prisoners to work county roads, and that petition for writ of mandamus was consequently inappropriate); Ark. Op. Att'y Gen. No. 88-364 (opining that "the remedy of The Honorable James McLean State Representative Opinion No. 2014-021 Page 12 Question 3: Is a condemnation by the county judge in accordance with A.C.A.
§§ 14-298-101 to -125 an exclusive and discretionary exercise of the power of the county judge by Arkansas Law? Subject to control by the Quorum Court? Subject to control by the state judiciary by writ of mandamus? As acknowledged in Lindsey,28 a county may create a county road by a process of condemnation under the statutory scheme referenced in your question. With respect to the nature of the authority attending this process, the opening section of the subchapter recited in your question provides as follows: All public roads and highways shall be laid out, opened, and repaired agreeably to the provisions of this chapter. The county court of each county in this state shall have full power and authority to make and enforce all orders necessary as well for establishing and opening new roads as for changing and vacating any public road or part thereof.29 As this office has previously pointed out, the references in this subchapter to the county court are dated and should properly be read, in the wake of the adoption of Amendment 55, as referring to the county judge.30 I will not here repeat the mandamus cannot control the discretion of an officer in the executive branch of government," citing Mears, County Judge v. Hall, 263 Ark. 827, 569 S.W.2d 91 (1978)). 28 291 Ark. at 321. 29 A.C.A. § 14-298-101 (1987). 30 See, e.g., Op. Att'y Gen. Nos. 2006-050 and 88-364. As my predecessor noted by footnote in the former of these opinions, however, there are certain limited instances in which the county court retains control: The county court, distinct from the county judge, retains certain constitutional and statutorily delegated judicial jurisdiction over roads and bridges within a county . . .. See Yates v. Sturgis, 311 Ark. 618, 846 S.W.2d 633 (1993) (affirming the county court's jurisdiction to enter an order creating a private street through eminent domain to allow access to a landlocked parcel within city limits relying on the "narrow" situation where there is specific statutory authorization for the county court to use eminent domain in this manner and the lack of any alternate redress for the owner of a landlocked parcel within city limits); and Op. Att'y Gen. 2001-319 (differentiating the executive regulatory authority of a county judge over county roads from the jurisdiction of the county court over roads and bridges within a county in specific situations). General supervision of the construction and operation of the county roads is an executive power as discussed above, and not an exercise of judicial power by the county court. Accordingly, as provided by The Honorable James McLean State Representative Opinion No. 2014-021 Page 13 analysis supporting this conclusion, simply noting instead that the "full power and authority" referenced in this statute is discretionary both on its face and for reasons discussed above. I have further reviewed above the nature of legislative authority over roads and the unavailability of mandamus as an avenue for judicial relief from discretionary acts. Question 4: Is the authority to designate a road by the county judge as a mail or bus route in accordance with A. C.A. §§ 2 7-66-205 and -206 an executive or judicial function following adoption of Amend. 55? Is this authority an exclusive and discretionary exercise of the power of the county judge under Arkansas Law? Subject to control by the Quorum Court? Subject to control by the state judiciary by writ of mandamus? I must note initially that your opening sentence misstates the substance of A.C.A.
§ 27-66-205 and -206 (Repl. 2010). These statutes deal not with the authority of a county judge "to designate a road ... as a mail or bus route"; rather, they authorize a county judge "in his or her discretion" to declare any road already used for either of these purposes to be a county road. 31 In my opinion, these statutes facially declare the county judge's action to be a discretionary function, which is further clearly executive and, in all likelihood, exclusive for reasons discussed in my response to question 2. I have discussed the extent of quorum court control over roads and the unavailability of mandamus as a remedy for discretionary acts in my response to question 2. A.C.A. § 14-14-1105 (Repl. 1998), the county court did not retain the powers that vested in the county judge as executive powers pursuant to Amendment 55, § 3. My predecessor concluded that a county court has "no inherent general regulatory authority" over streets and bridges, whereas a county judge does have such authority, "acting in an executive capacity," over the unincorporated areas of the county. 31 Compare A.C.A. § 27-66-207(a) (giving the county judge the authority to designate any street or road dedicated to the public as a public thoroughfare as a county road, provided that a bill of assurance making the dedication is properly recorded); see also Barber v. Wolf, 2009 Ark. App. 460, 5, _ S.W.3d _, 2009 WL 1553639 (discussing the county judge's discretionary authority to designate mail routes as county roads). The Honorable James McLean State Representative Opinion No. 2014-021 Page 14 Question 5: Would an ordinance by the Quorum Court directing or purporting to direct a county judge to operate, maintain, improve or repair county road(s) or bridge(s) be in violation of Amendment 55? A violation of the provisions of Art. 7, 28 of the Arkansas Constitution? Only a finder of fact could answer this question after reviewing in detail precisely what the challenged ordinance purported to direct the county judge to do. I have discussed in my response to question 2 the general relationship between the county judge and the quorum court with respect to the planning and operation of county roads. I have further discussed above, as has my predecessor in Opinion 97-181, the expanded role of the county judge, and the correspondingly diminished role of the county court, with respect to the operation of the road system in the wake of Amendment 55's adoption. I need not reproduce those discussions here. I can only note that the contents of any particular ordinance may be subject to challenge under the standard set forth above. Any such challenge would be based upon the principle expressed as follows by the Arkansas Supreme Court:
[T]he county court [now likely the county judge] must have the power, and, therefore, has the duty to plan, construct, maintain, alter, relocate, and abandon county roads.32 The county attorney in the first instance - and, ultimately, the courts - are better suited than this office to review quorum court action in any particular instance. Question 6: Is the exclusive authority and discretion of the county judge under Amendment 55 to operate, maintain, improve or repair a county road(s) and bridge(s) be [sic] subject to control of the state judiciary by writ of mandamus? A violation of Article 7, § 28 of the Arkansas Constitution confiding in the county judge authority over the disbursement of money for county purposes, such as road or bridge repairs or maintenance? In my opinion, for reasons set forth above, a county judge's operation of the county system of roads and bridges is discretionary in nature and hence not subject to control by writ of mandamus. Ji Butler v. City of Little Rock, 231 Ark. 834, 841, 332 S.W.2d 812 (1960). This pre-Amendment 55 pronouncement remains accurate subject to the qualifications discussed above - namely, the quorum court's limited continuing role in "planning," subject to the county judge's "operational" executive control, and the county court's extremely restricted remaining "judicial" authority. The Honorable James McLean State Representative Opinion No. 2014-021 Page 15 Moreover, a county judge's fulfillment of his obligation to operate the system of roads and bridges pursuant to Amendment 55, which superseded any contrary then existing constitutional provision, of necessity could not violate Article 7, § 28. Finally, I question your suggestion that Article 7, § 28 locates "in the county judge authority over the disbursement of money for county purposes." Section 3 of Amendment 55 expressly directs the county judge to "authorize and approve disbursement of appropriated county funds." Question 7: What is the difference between a private road, a public road and a county road (as identified in Lindsey above and Amendment 55)? May a county judge exercise his discretion to direct road funds, road crews or road equipment to improve, repair or maintain a private road? May a county judge exercise his discretion to direct road funds, road crews or road equipment to improve, repair or maintain a public road or county road? May a county judge by policy or otherwise decline to do so? With respect to the first part of this question, as discussed above, a thoroughfare can be designated a "county road" subject to county maintenance in the ways summarized in your first question and specified in Lindsey.33 As the name suggests, a "public road" is one to which the public has general access, without necessarily qualifying as a "county road."34 The mere fact that the county maintains a public road does not in itself render it a "county road."35 As the name likewise suggests, a "private road" is just that - privately owned and not subject to public access, hence rendering it subject to access restrictions of the owner's choosing. 33 With regard to the requirement of county maintenance in the wake of such designation, see discussion in Ops. Att'y Gen. 2007-029 and 89-135. 34 See, e.g., Lindsey, 293 Ark. at 321 (distinguishing between "county roads" and "public roads by prescriptive right"); Op. Att'y Gen. 89-135 (pointing out that a road may be dedicated to public use without having been designated a county road, and that acceptance of the dedication is required under A.C.A. § 27- 66-207 before the clerk may record a bill of assurance). 35 See Op. Att'y Gen. 91-434 (county maintenance alone does not qualify a road as a "county road"). The Honorable James McLean State Representative Opinion No. 2014-021 Page 16 With respect to the second part of your question, as a general proposition, a county judge lacks the discretion to devote county resources to the improvement, repair or maintenance of a private road. 36 As noted by one of my predecessors: It is generally held that county labor and equipment cannot be used to make improvements to private property. See Pogue v. Cooper, 284 Ark. 105, 679 S.W.2d 207 (1984); Cunningham v. Stockton, 235 Ark. 345, 359 S.W.2d 808 (1962); Needham v. Garner, 233 Ark. 1006, 350 S.W.2d 194 (1961); see also Ops. Att'y Gen. 97-248, 95- 215, and 94-138. I have opined that this prohibition has been applied notwithstanding the fact that the county received compensation for the work performed. See Ops. Att'y Gen. 97-248, 95-215, and 94-
138. In holding that contracting with private concerns for work on
private property was not allowed, the court reasoned in Needham, supra, as cited in Pogue, 284 Ark. at 106, that illegal exactions (Ark. Const. art. 16, § 13) were likely to occur because such use of county property could result in the need for more tax money to repair and replace the equipment, even if the contract produced a profit. 233 Ark. at 1010. In Opinion 94-138, I opined that as a general matter, the use of county employees and county equipment to lay asphalt on a church parking lot would be unlawful. 37 As my predecessors further pointed out, any such purely private use of public property would offend Article 12, § 5 of the Constitution, which provides in pertinent part: "No county ... shall ... obtain or appropriate money for, or loan its credit to, any corporation, association, institution or individual. "38 Maintenance and repair that only incidentally benefits private property, however, may be permissible.39 Only a finder of fact would be in a position to judge the propriety of expenditures directly benefiting private parties. 36 See Op. Att'y Gen. 92-081 (opining that truly private roads in private developments may not be maintained using county resources). 37 Op. Att'y Gen. 98-163, quoted in Op. Att'y Gen. 2000-243. 38 See Op. Att'y Gen. 88-052 (reaching the same conclusion with respect to a county's providing a private company free gravel to construct a temporary parking lot). 39 See Op. Att'y Gen. 2004-319 (stating that "[a]n authorized use for a public purpose is not ... invalid even though it involves an incidental private benefit") (quoting Op. Att'y Gen. 93-343 and citing 64 C.J.S. Municipal Corporations§ 1725 (1950)); accord Op. Att'y Gen. 95-038. In this regard, this office has noted with approval the following fonnulation by the California Court of Appeal: '"So long as a public interest is served, there is no unlawful expenditure of public funds even though there may be incidental benefits to The Honorable James McLean State Representative Opinion No. 2014-021 Page 17 With respect to the final two parts of this question, again, the county judge has discretion under Amendment 55 to administer the system of county roads - i.e., public roads that the county has commi~ted to maintain in one of the manners discussed above - presumably in a manner consistent with the official road plan adopted by the quorum court. In theory, such administration will on occasion prompt the county judge as a matter of what you term "policy" to decline to devote county resources to maintenance of roads. Determining the propriety of any such decision will in every instance be fact intensive and hence properly subject to review by a court. Question 8: May a county judge adopt mm1mum road standards for consideration of acceptance of a road by a county into the county road system (such as minimum dedicated right of way, roadway and drainage standards)? Is a county judge to accept a road as a county road into the county road system if it meets the county road standards? May a county judge decline to exercise his discretion to accept a road into the county road system for reasons that the county has finite road revenues and resources and the county cannot afford to maintain the subject road or roads? I must note at the outset that this question, like various of your others, is posed without any reference to a factual context giving rise to your concern. It is consequently difficult for me to venture any definitive answer that might prove of immediate benefit in addressing a particular issue. I have discussed in my response to your second question the role of the quorum court in adopting the official road plan and in appropriating funds for the construction and maintenance of county roads. As the individual charged with executive authority to administer county roads, the county judge has discretion to make decisions, including such matters as design specifications and enforcement, consistent with this plan and available funding.40 To the extent he adopts "minimum road standards" in compliance with these conditions, I believe the answer to the first part of your question is "yes." With respect to the second part of this question, in my opinion, a county judge has the discretion to accept or reject a county road within the parameters just stated. In my opinion, the answer private persons."' Op. Att'y Gen. 2000-243, quoting league of Women Voters of California v. Countywide Criminal Justice Coordination Committee, 203 Cal.App.3d 529, 554, 250 Cal.Rptr. 151 ( 1988). 40 This issue is discussed in further detail in the attached Op. Att'y Gen. 97-181. The Honorable James McLean State Representative Opinion No. 2014-021 Page 18 to your third question is "yes," so long as the county judge does not abuse his discretion. Having offered these statements of general principle, I again encourage you to address particular issues to the county attorney for analysis in light of the foregoing. Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve. (~
{
DM/JHD:cyh
Enclosure Winston Bryant
Attorney General
STATE OF ARKANSAS
Office of the Attorney General
Opinion No. 97-181
August 6, 1997
Tue Honorable Brent Davis
Prosecuting Attorney
Second Judicial Circuit
P.O. Box491
Jonesboro, Arkansas 72403
Dear Mr. Davis:
Telephone:
(501) 682-2007
This is in response to your request for an opinion concerning the designation of a county road in Greene County. You have posed five questions relating to this topic and have enclosed relevant local ordinances and county court orders with your request. Your five specific questions are as follows: 1) Does the Quorum Court have the authority to pass an ordinance which sets forth standards, design specifications and procedures for the construction of roads, which must be met before the road is accepted into the county road system? 2) Does Ark. Code Ann. 27-66-204 authorize the county judge to designate as a county road any road which meets the criteria set forth in A.C.A. § 27-66- 204 even if an ordinance such as the one described in
[(question I)] above, is in effect, and the standards set forth in the ordinance have not been met? 200 Tower Building, 323 Center Street• Little Rock, Arkansas 72201-2610 ,· The Honorable Brent Haltom Prosecuting Attorney Opinion No. 97-181 Page2 3) Must the requirements for establishing a county road set forth in A.C.A. §§ 14-298-101 to 14-298-116, be complied with if the county judge seeks to designate a road as a county road under A.C.A. § 27-66-204? 4) If the provisions of A.C.A. §§ 14-298-101 to 14- 298-116' are complied with, may a road be declared a county road even if the requirements for designating a road as a county road under an existing county ordinance such as described in [ (question 1)] above have not been met? 5) What is the definition of 'county court' as used in A.C.A. §§ 14-298-101 to 14-298-116? Does 'county court' mean County Judge or Quorum Court? i I must note from the outset that a question involving the designation of a road, as with any question affecting a particular piece of property, may turn to a 'great degree upon factual issues. You have posed five bare questions of law and have enclosed a number of documents relevant to a particular set of facts in Greene County, Arkansas. I will address your bare questions of law, but cannot, in the context of an official Attorney General opinion, conclusively opine as to the law's application to any relevant facts. Only a factfinder (i.e., a court), presented with all the relevant facts and circumstances, could come to any definite conclusions as regards any one fact situation. That being said, I can proceed to address your questions of law. In response to your first question, it is my opinion that although the quorum court may have authority to pass an ordinance such as the one you describe, the authority to enforce its provisions may have to give way, in certain instances, to the constitutional and statutory authority of the county judge and/or "county court." As a general matter, the quorum court of each county is authorized to exercise "local legislative authority not denied by the Constitution or by law." Arkansas The Honorable Brent Haltom Prosecuting Attorney Opinion No. 97-181 Page3 Constitution, Amendment 55, § l(a). In addition, A.C.A. § 14-14-802(b)(2)(G)(i) states that the quorum court may provide through ordinance for, among other things, "roads and bridges. . . . " The constitutional and statutory power of the county judge and county court over county roads, however, may not be ignored. A discussion of the history of this authority will be helpful in addressing each of your questions, and will thus be set out at this point. Article 7, section 28 of the Arkansas Constitution of 187 4 provides that: The county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, [and] bridges. . . . The county court shall be held by one judge, except in cases otherwise herein provided. This constitutional provision is impacted to some degree, however, by the later enactment of Arkansas Constitution, Amendment 55, § 3, which states that: The County Judge, in addition to other powers and duties provided for by the Constitution and by law, shall ... operate the system of county roads.
[Emphasis added.]
The enabling legislation to Amendment 55, (Act 742 of 1977) states that: "[t]he General Assembly determines that the executive powers of the county judge as enumerated in Arkansas Constitution, Amendment 55, § 3 are to be performed by him in an executive capacity and not by order of the county court." A.C.A. § 14- 14-l 102(a). The statute goes on to state that the county judge "shall be responsible for the administrative actions affecting the conduct of a plan of public roadways and bridges . . . including the maintenance and construction of public roadways and bridges .... " A.C.A. § 14-14-1102(b)(l). Amendment 55, § 3 empowers the county judge to "operate the system of county roads," and this operation is to be accomplished in an "executive capacity" and not by order of the county court. It also appears, however, that the existing powers of the "county court" in Arkansas Constitution art. 7, § 28 were not displaced by Amendment 55, § 3. The Arkansas Supreme Court, as late as 1993, has The Honorable Brent Haltom Prosecuting Attorney Opinion No. 97-181 Page4 recognized the continuing exclusive original jurisdiction of the "county court" over the system of county roads under Arkansas Constitution art. 7, § 28. ~Yates v. Sturgis, 311 Ark. 618, 846 S.W.2d 633 (1993) (holding that article 7, § 28 gives the county court jurisdiction over all public roads in the county including streets within a city). It appears that the authority granted the "county judge" in Amendment 55 to "operate" the system of county roads may be somewhat more narrow than the origiiial authority of the "county court" under art. 7, § 28 over county roads. The county judge may thus engage in administrative actions pertaining to the "operation" of the system of county roads in an executive. capacity under Amendment 55, and need not exercise such actions through use of the "county court." The "county court," however, retains any judicial authority over the system of county roads as granted in art. 7, which was not granted the "county judge" under Amendment 55 to be exercised in an executive capacity. See, bg., A.C.A. §§ 14-14-1105(a) and (b)(6). . .
,.
That being said, it is my 'opinion, in response to your first question, that a quorum court does not have the authority to set and enforce design specifications which would interfere with the "exclusive original jurisdiction" of the county court tinder Article 7, § 28, or with the county judge's "operation" of the system of county roads, or with any constitutional or statutory authority of the county judge which existed at the time of the adoption of Amendment 55, § 3. It has been held at various times that the county court or the county judge have authority to designate and open county roads. See, bg., Prewitt v. Warfield, County Judge, 203 Ark. 137, 156 S.W.2d 238 (1941) (county court has authority to lay out county road under what is now A.C.A. § 14-298-121); Arkansas Game & Fish Commission v. Lindsey, 292 Ark. 314, 730 S.W.2d 474 (1987) (county judge has authority to enter an order declaring a mail route or a school bus route a county road under A.C.A.
§§ 27-66-205 and -206); and Johnson v. Wylie, 284 Ark. 76, 679 S.W.2d 198 ( 1984) (county judge has authority to declare a school bus route a county road under A.C.A. § 27-66-206). In my opinion the quorum court, through the exercise of its legislative authority, may not interfere with the ultimate authority of the county judge or county court in this regard. See, ~., A.C.A. § 14-14-502 (providing for separation of powers between the departments of county government). Se~ alsQ Op. Att'y Gen. 92-081 (concluding that the county judge has authority to accept private roads into the county road system, at least under The Honorable Brent Haltom Prosecuting Attorney Opinion No. 97-181 Page 5 A.C.A. §§ 27-66-204, -205, -206, -207 and -208, without the approval of the quorum court). It is therefore my opinion that the answer to your first question is "no," if the enforcement of such an ordinance would unlawfully interfere with the power of the county judge or county court. Your second question references A.C.A. § 27-66-204 (Repl. 1994), which provides that: The county judge, in his discretion, may designate as a county road any road that is the most direct route to the county courthouse for ten (10) or more families if that road is graded and has been used by the general public as a road for at least two (2) years. I have previously concluded that this statute vests the authority solely in the county judge, and that the statute does not imply any approval authority of the quorum court. See Op. Att'y Gen. 92-081. Consequently, it is my opinion that the answer to your second question is "yes."1 Your third question inquires as to whether the procedures set out in A.C.A. §§ 14- 298-101 to -116 must be complied with if the county judge seeks to designate a road as a county road under A.C.A. § 27-66-204. Again, A.C.A. § 27-66-204 gives the county judge authority, under certain circumstances, to designate as a county road any road that is the most direct route to the county courthouse for a number of families. It was amended as recently as 1983. The other statutes you reference in your third question (A.C.A. §§ 14-298-101 to -116), were adopted in 1 A similar statute authorizing the designation of school bus routes as county roads (A.C.A. § 27-66-206), has been criticized as "merely a device by which a county judge can avoid the constitution and [a relevant subchapter] which provides the legal way to declare a road a county road and which expressly provides for compensation if a private road is so declared." ~ Johnson v. Wylie, supra at 80, Hickman and Hollingsworth, JJ. dissenting. The majority in Johnson, however, upheld the constitutionality of the statute on the facts in that case. I assume, however, because documents enclosed with your request reflect that affected landowners have granted perpetual easements for the road in question, that no issue as to compensation is presented by your questions. The Honorable Brent Haltom Prosecuting Attorney Opinion No. 97-181 Page6 1871. They prescribe a procedure for petitioning for the opening, altering or vacation of a county road, and the "publisher's notes" to each of these statutes indicate that they "may be superseded by A.C.A. § 14-298-120." It is my opinion that the answer to your third question is "no," the procedures under A.C.A. §§ 14- 298-101 to -116 need not be complied with prior to the county judge's exercise of authority under A.C.A. § 27-66-204. The two statutory schemes are independent of each other. CT. Arfunsas Game & Fish Commission v. Lindsey, supra. Cf . .als.Q Prewitt v. Warfield, County Judge, supra. Your fourth question inquires whether compliance with a local ordinance setting design specifications must be had if the provisions of A.C.A. §§ 14-298-101 to - 116 are all observed in the designation of a new county -road. 2 Again, the subchapter you mention was enacted in 1871 and involves the use of a petition process to secure the designation of a county road. Provision is also made under this subchapter for the payment of damages to affected landowners. Again, it is noted by the publisher· of the Arkansas Code that these statutes "may be" superseded by A.C.A. § 14-298-120, enacted in 1965. To the extent these statutes have continuing validity, however, it is my opinion that they grant the "county court" the ultimate authority to determine whether a county road should be so designated. ~, ~., A.C.A. § 14-298-113 (stating that the county court may, if the road will be of sufficient importance to the public to cause compensation to be paid by the county, order the opening of the road). The same power, whether through the petition process or otherwise, is given the "county court" in the later more abbreviated procedure set out in A.C.A. § 14-298-120. Consequently, it is my opinion that the quorum court does not have authority to impose conditions upon the opening of roads in a manner which would restrict the county court's exercise of its constitutionally and statutorily granted discretion over county roads. See, .e....g., A.C.A. §§ 14-14-805(13) (quorum court prohibited from passing any legislative act contrary to the general laws of the state); and 14-14-807(5) (quorum court prohibited from passing laws directing or requiring a county officer to carry out any function or provide any service). Your fifth and final question inquires as to the definition of"county court," as used in A.C.A. §§ 14-298-101to14-298-116, and asks whether this phrase refers to the 2 The "county road" order enclosed with your request does not mention this subchapter, but relies rather on A.C.A. § 26-66-204. The Honorable Brent Haltom Prosecuting Attorney Opinion No. 97-181 Page7 "county judge" or the "quorum court." The "county court" strictly speaking, is neither the "county judge" nor the quorum court. It is, however, presided over by one judge, the "county judge," who, when so presiding, acts in a judicial, rather than an executive capacity. ~Arkansas Constitution, art. 7, § 28 and A.C.A. § 14-14-1105(a). It has been stated that: "[a]lthough the Arkansas Supreme Court has meticulously separated the judicial and executive functions of the county judge on a case-by-case basis, there is still great confusion in Arkansas with respect to what the county court is." Comment, County Government Reorganization in Arkansas, 28 Ark. L. Rev. 226, 235 (1974). It was stated, prior to the adoption of Amendment 55, that: "In each county there is a court, presided over by a county judge, known as the county court. . . . The county court is the principal instrument of county government and performs a mixture of executive and legislative as well as judicial tasks." Greenebaum, Arkansas' Judiciary: It's History and Structure, 18 Ark. L. Rev. 152 (1964). Since the adoption of Amendment 55, the county court exercises fewer powers (former powers now being exercised either by the quorum court, or by the county judge in an executive capacity), but it clearly still exists, and consists of the county judge, wearing a judicial hat. See again, A.C.A.
§ 14-14-1105. It is my opinion that the references to the "county court" in A.C.A.
§§ 14-298-101 to -116, enacted in 1871, refer to this "court." The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elana C. Wills. Attorney General WB:ECW/cyh