Vedder v. Marion County ( 1894 )

Opinion by

Mr. Justice Moore.

1. The report of the viewers having been filed at the July term, eighteen hundred and ninety-one, of the county court, it is contended that no remonstrance thereto filed after the case was remanded could be properly considered by the court. The record shows that the report of the viewers was read for the first time on July seventh, eighteen hundred and ninety-two, at which time the remonstrances were filed. This recital must overcome the presumption, if any existed, that the report was read before the petition was dismissed by the county court on July ninth, eighteen hundred and ninety-one, and as the court could acquire no jurisdiction to grant the petition prior to the final reading of the viewers’ report: Latimer v. Tillamook County, 22 Or. 291 (29 Pac. 734); it follows that the remonstrances were filed in proper time.

2. It is contended that the establishment of the new road vacated the old one, and that as soon as the new road was opened to public travel the old one thereby became discontinued. In Commonwealth v. Westborough, 3 Mass. 406, Parsons, C. J., in discussing this question, said: “For establishing an alteration in a way is, in law, a discontinuance of the part altered; and the report of the discontinuance, and the acceptance of it, are merely surplusage. On any other principle, the applying for an alteration must be an application for a new way, and not for altering an old one.” In Commonwealth v. Cambridge, 7 Mass. 157, a petition for an alteration of an existing highway had been presented, which was denied, but a new road was established where the alteration was requested. It was held that the alteration of an old way and the establishment of a new one were substantially different; that the adjudication of the court was not of the matters in dispute, and the proceedings were therefore void. The rule is well established that when a petition for the alteration of an existing road has been granted, all parts of the old road embraced within the limits of the alteration are vacated by implication, though no order to that effect be made: Brooks v. Horton, 68 Cal. 554 (10 Pac. 204); Hobart v. Plymouth County, 100 Mass. 159; Heiple v. Clackamas County, 20 Or. 147 (25 Pac. 291). Section 4061, Hill’s Code, authorizes county courts to establish, alter, or vacate county roads. In the case at bar the petitioners ask for the location and establishment of a county road. Their application can not be treated as a petition for an alteration unless the legal effect of the vacation of the old and the establishment of the new road is equivalent thereto. If this be the proper construction, then the county court, by refusing to vacate the old had no authority to establish the new road, and its order to that effect would be a nullity: Commonwealth v. Cambridge, 7 Mass. 157. The road established forms the west line or base of a triangle, and it is sought to vacate the hypothenuse, extending from its northern terminus to a point on an existing county road one hundred and twenty rods east of its southern terminus. If the termini of the road established were within the limits of the old road, there might be some propriety in holding that the petition was for an alteration of an existing road, as the traveling public could as well be accommodated by the new as it had been by the old way, but since the new road does not lie within the termini of the old, and connects with it only at its north end, the county court, in pursuance of a stipulation of the parties and of the character of the pleadings, properly construed the application to be two petitions, — one for the location and establishment of a new road, and the other for the vacation of an old one, — and could therefore grant or deny either, and hence the establishment of the new road did not operate to vacate the old one.

3. It is also contended that, the viewers having recommended the vacation of the old road, the county court was obliged to grant it. Section 4065, Hill’s Code, provides that, “the court, being satisfied that such road will be of public utility, the report of the viewers being forwarded thereto, the court shall cause said -report, survey, and plat to be recorded, and from thenceforth said road shall be considered a public highway, and the court shall issue an order directing said road to be opened.” It is quite probable that the word “favorable” was intended where “forwarded” is used in said section. This construction would preclude the court from establishing a county road in the following instances: (1) When the viewers’ report is unfavorable thereto; (2) when a remonstrance with a greater number of qualified remonstrators than there are names on the petition is filed in proper time; and, (3) 'when claims for damages are unnettled. This section requires the viewers to make their report on nr before the third day of the term of court next after their appointment, and it is made the duty of the county clerk to read said report on two separate days of the meeting thereof. The report of the viewers thus becomes a condition precedent to any action on the part of the court, and, as this requirement appears In the preceding part of the section, it is very apparent that Ihe legislature intended to adopt the word “favorable” when it made use of the word “forwarded.” The court would thus be bound by an unfavorable report of the viewers; but must it, when their report is favorable thereto, establish, alter, or vacate the road? The report would certainly be binding upon the court unless it is vested with a discretion by implication, or by the statutory provision that it ‘must be satisfied that the road will be of public utility before it can be established. If the viewers’ report be conclusive upon the court, then the petition must be granted, even if the court is not satisfied that the road asked to be established, altered, or vacated is of any utility. In Commissioners v. Bowie, 34 Ala. 434, the court says: ‘-'Upon the question of the expediency of opening or altering a public road, that court exercises a quasi legislative authority, and its decision is not revisable. In the exercise of that authority, it does not act alone upon evidence produced according to legal rules, but is guided, to some extent, by its knowledge of the geography of the country, the wants and wi.hes of the peoplé, and the ability of the neighborhood to keep the road in repair.” The legislature has delegated to the county court the authority to establish, alter, and vacate county roads, and as the legislature may determine when the necessity for a public road exists, so the same authority may be exercised by the county court; and if there were no statute vesting it with this discretion, the court, by implication, could exercise such discretion, unless prohibited by statute. Whether a proposed road will subserve the public need or convenience is a question for the legislature, and not for the judiciary. Sherman v. Buich, 32 Cal. 241 (91 Am. Dec. 577); Commonwealth v. Roxbury, 8 Mass. 457; and hence the county court, in determining its utility, acts in a legislative capacity. The authority is not only given by implication, but the statute, section 4065, in positive terms grants this power to the county court, and, authorizes it to exercise a discretion in the matter; and hence the conclusion. reached by the county court upon these legislative questions is not subject to review: State v. Bergen, 24 N. J. L. 548. The county court, by implication and by statute having authority to disregard the favorable report of the viewers in the matter of the vacation of the road, it follows that the judgment of the circuit court is affirmed. Affirmed.