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? Depends on the ordinance. Only a finder of fact can decide whether a specific ordinance impermissibly intrudes on the county judge's executive authority. The quorum court can plan and appropriate; it cannot operate.

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. Aggrieved parties must look to abuse-of-discretion review, declaratory judgments, or political remedies.

Can a quorum court force a county judge to fix a road?
No. Quorum-court authority on roads is essentially planning and funding. The quorum court can adopt an official road plan (A.C.A. § 14-17-208(h)(1)), set design specifications via that plan, and appropriate (or decline to appropriate) funds. But it cannot direct the county judge to perform specific maintenance, repair, or operational acts (Butler v. City of Little Rock; Op. Att'y Gen. 2001-038).

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 (1874): 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, 2011 Ark. 307 (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