Meservey v. Gulliford , 14 Idaho 133 ( 1908 )

STEWART, X,

Concurring Specially. — I concur with the majority opinion that this case should be reversed. I am •unable, however, to agree with the majority opinion, holding that the plaintiff, as road overseer, can maintain this action. -Justice Sullivan, in the principal opinion, seems to hold that the plaintiff has a right to maintain this action by reason of the fact that under the provisions of sec. 873 of the Rev. Stat. (as amended by Sess. Laws, 1899, p. 128), the road -overseer, under the direction of the board of commissioners, •takes charge of all public highways of his district, and under the provisions of the act of February 18, 1899 (Sess. Laws, 1899, p. 306), he is made an elective officer, and as see. 3634, Lev. Stat., provides, “A public nuisance may be abated by any public body, or officer authorized thereto by law,” that therefore the road overseer, being a public officer, has a right to maintain an action to abate as a nuisance any encroachment upon a public highway, as provided by see. 963 of the Lev. Stat. Chief Justice Ailshie, however, in his concurring opinion, seems to think there is a difference between an encroachment and an obstruction of a public highway, and that while the road overseer might not maintain an action to remove an encroachment upon a public highway “unless the same be duly laid out or erected,” yet, inasmuch as the different sections in article 8 of the Political Code provide that a road overseer may maintain an action to recover the penalties for placing obstructions upon a public highway whether “duly laid out or erected” or not, that therefore there is an implied power that the road overseer may also bring an action to remove such obstruction. It will thus be observed that my associates take a contradictory position in the outset, Justice Sullivan holding that a road overseer may maintain an notion to remove an encroachment upon a highway because it is a nuisance, whether the highway be “duly laid out or •erected” or not, while Chief Justice Ailshie holds that the word “encroachment” only applies to roads “duly laid out or erected” as defined by sec. 960, Lev. Stat., and that the road overseer’s authority to maintain the action to remove an obstruction to a public highway whether “duly laid out or erected” is an implied authority by reason of the authority of the road overseer to bring an action to recover the penalty for obstructing a public highway.

It is a general proposition of law that the limit of the power of a public officer is the statute conferring the power, and what further power is necessarily implied, in order to effeetu.ate that which is expressly conferred. The principle stated in the concurring opinion of Chief Justice Ailshie that, “It is a primary and fundamental rule of statutory construction ■.that where the power and authority is granted to do a certain thing, the act necessarily carries with it the implied power to employ the means necessary to accomplish the result,” as applied to the plaintiff, means that while he is authorized under article 8, supra, to bring an action to recover the penalty therein named, that he is also impliedly authorized to employ whatever means may be necessary to recover such penalty; but the principle cannot be extended so as to authorize a suit entirely different and brought for a different purpose. In the performance of a ministerial duty enjoined by statute, when the mode of performance is prescribed by the statute, no further power is implied, nor has the officer any discretion; he must strictly pursue the statute; his authority is the command of the statute and it is the limit of his power. (Thro.op on Public Officers, see. 556; Ex parte Farrell (Mont.), 92 Pac. 785.)

See. 960, Rev. Stat., provides that if any highway “duly laid out or erected” is encroached upon by fences, buildings, or otherwise, the road overseer of the district may, orally or in writing, require the encroachment to be removed from the highway. And sec. 963 provides that if the encroachment is denied, and the owner refuses to remove the same, the road overseer must commence an action to abate the same as a nuisance. This section only authorizes the road overseer to commence an action to remove a nuisance by reason of an encroachment upon a highway “duly laid out or erected.” The words “duly laid out or erected” as used in see. 960 have reference to roads which have been laid out or erected by the proper officers in the manner prescribed by law. They have reference to formal or official action which the law enjoins upon those charged with the duty of establishing public highways. (Freshour v. Hihn, 99 Cal. 443, 34 Pac. 87.) It is admitted in this case that the road was not “duly laid out or erected.” As sec. 3634 only authorizes the abatement of a nuisance by “an officer authorized thereto by law,” and the law only authorizes the road overseer to bring an action for an encroachment upon a highway “duly laid out or erected,” it follows that the road overseer has no authority found in the statute authorizing him to bring an action to remove an encroachment or obstruction upon any other kind of road.

Sec. 967, Rev. Stat., upon which the chief justice bases his conclusion that the plaintiff has authority to bring this action, provides: “Whoever obstructs or injures any highway, or obstructs or diverts any watercourse thereon, is liable to a penalty of five dollars for each day such obstruction or injury remains, and must be punished as provided in the Penal Code. ’ ’ It says nothing about the authority of the road overseer to bring an action to remove an obstruction to a public highway. The authority to bring an action to recover a penalty for placing an obstruction in a highway, is not authority to bring an action to remove an obstruction to a highway. The majority opinion, however, holds that this action is not brought under sec. 960, supra, but is brought under see. 851, Rev. Stat., as amended. This latter section provides that “roads laid out and recorded as highways by order of the board of commissioners, and all roads used as such, for a period of five years, provided the latter shall have been worked and kept up at the expense of the public, or located and recorded by order of the board of commissioners, are highways.”

Paragraph 3 of the complaint alleges that for more than ten years immediately preceding the commencement of this action, continuously and uninterruptedly, except when interfered with during the past two years by the defendant, said road has been used, worked and kept up at the expense of the public as a public highway. It will thus be seen that this allegation does not bring this case within that class of cases which the statute authorizes the road overseer to maintain, for the purpose of abating as a nuisance any encroachment upon a public highway. Had the legislature intended to authorize a road overseer to bring an action to abate as a nuisance an obstruction upon a public highway before the same has been “duly laid out or erected, ” they certainly would have said so.

Sec. 873, Rev. Stat., as amended by laws of 1899, p. 128, provides that “Road overseers, under the direction and supervision, and pursuant to orders of the board of commissioners appointing them, must: First. — Take charge of the public highways within their respective districts. Second. — Keep them clear from obstructions and in good repair.” It is not alleged in the complaint nor proved upon the trial that the board of commissioners ever authorized the plaintiff to take charge of the highway in controversy in this case, nor to keep the same free from obstructions or in good repair. In fact, there is nothing alleged in the complaint or proved upon the trial which shows that the highway in controversy was ever “laid out or erected” as such, or that it was ever recognized in any way by the commissioners of Fremont county as a public highway, or that its course or width was ever fixed or established in any way. Before the plaintiff, as road overseer, has any authority to declare the same a public highway, and bring an action to remove obstructions placed ■ thereon, his authority must clearly appear in the statutes.

See. 870, subd. 3, Rev. Stat., authorizes the board of commissioners to cause to be recorded as highways such roads as have become such by usage or abandonment by the public. These various sections of the statutes of this state are almost identical with the statutes of California, bearing upon the same subject. In the case of Smith v. Talbot, 77 Cal. 16, 18 Pac. 795, the court held that no action lies under sec. '2734 of the Political Code at the suit of a road overseer to abate an encroachment of a highway as a nuisance, and for the penalty therein provided, unless the encroachment came into existence after the highway is “laid out and completed.” If placed there by the owner of the land before the highway is laid out, the remedy of the road overseer is to pursue the course prescribed by see. 2695 of the Political Code. See. 2734 of the California code referred to in the above opinion, is identical with sec. 963, Revised Statutes of this state, and referred to in the opinion of Justice Sullivan, and see. 2965 of the Political Code of' California referred to in the above opinion, is the same as sec. 936 of the Revised Statutes of this state.

There is another remedy clearly provided for by the statutes of this state. Subd. 4, see. 1759, Rev. Stat., authorizes the board of county commissioners “to lay out, maintain, control, and manage public roads, turnpikes, ferries, and bridges, within the county and levy such taxes therefor as-authorized by law.” And subd. 13 of the same section provides, “to direct and control the prosecution and defense of all suits to which the county is a party in interest, employ counsel to conduct the same, with or without the district attorney, as they may direct.” This statute clearly provides a remedy for a ease like that alleged in the complaint, and the county commissioners are clearly authorized under sec. 3634, Rev. Stat., to bring an action to abate a public nuisance.

I am unable to find in the statutes any authority giving to-the plaintiff the right to maintain this action. For these reasons I dissent from that part of the opinion of the majority which holds that the plaintiff can maintain his action.