People ex rel. Goldsmith v. Highway Commissioners

Cooley J.

The first objection to the jurisdiction of the commissioners in this case is, a want of constitutional power. If the objection- is valid, it must be so either first, because power to lay out, alter and discontinue highways is conferred upon the county boards of supervisors; or second, because the commissioners can only act after the necessity has been determined by a jury or by commissioners appointed by a court of record.

The constitution — Art. 10, §11 — provides that “The board of supervisors of each organized county may provide for laying out highways, constructing bridges and organizing -townships, under such restrictions and limitations as shall be prescribed by law.” This section has never been construed by the legislature as taking from the township authorities the control over roads which they before possessed, and all the statutes which have since been passed on the subject have provided for the continued exercise of that control. A careful examination of the provision will show that it is not one which executes itself, but that it contemplates action by the legislature establishing restrictions and limitations - before it becomes operative. Even then it is not in its terms exclusive, and there is nothing which would preclude the legislature from conferring power over this subject on the township highway commissioners even if they should also provide for the exercise of similar powers by the board of supervisors in specified cases, with suitable provisions to prevent conflict.

And whatever may have been the rule before 1860 — upon which we express no opinion — we are satisfied that a jury or commissioners appointed by a court of record are not now essential to the validity of action by highway commissioners in either laying out or discontinuing highways. The amendment to the constitution adopted in that year was intended to do away with that necessity, and its terms are sufficiently comprehensive to embrace all cases which fall within the official duty of the commissioners.

The second and more serious objection to the jurisdiction is based upon the fact that the road, a portion of which was sought to be discontinued, was a territorial road; and over these, it is insisted, the highway commissioners are not vested with the power of discontinuance which they possess in other cases. This objection must prevail. Ever since 1846 there have been statutes authorizing the boards of supervisors to open, alter or discontinue state and territorial roads where, in their opinion, the interest of the public demanded it. — Laws, 1846, p. 240; Comp. L. §1081 to 1085, and 359 to 363. Before that time, although a general control over such roads, when laid out and established, had been conferred on the highway commissioners and overseers (Laws, 1830, p. 7), yet even the board of supervisors do not seem to have been vested with power to discontinue, but only to make alterations. — (Laws, 1834, p. 91.) An unrestricted power in the supervisors to open, alter and discontinue, is hardly consistent with the possession of a similar power by the highway commissioners of the township, and it is easy to see that there might be a conflict of authority in cases where neither would be paramount. We can not suppose the legislature would intentionally authorize two bodies to act upon the same subject with co-ordinate power, and with no provision for a final arbiter between them, when the effect would be to enable each to thwart the acfion of the other, and to play at cross. purposes as local or other influences might move them. The terms of the general statutes empowering highway commissioners to discontinue roads, are satisfied by applying them to the roads which the commissioners have laid out, or which have become such by dedication and prescription; and, theie are reasons which must have had great weight in inducing the legislature to refrain from conferring upon these local boards the authority to discontinue by piecemeal the thoroughfares which have been regarded of sufficient importance to be specially provided for by the territory or state. These roads are usually constructed with reference to convenience of passage between distant localities; and the general purpose might be defeated by leaving it to every township through which they pass to change or discontinue them. We are satisfied no such authority was conferred, and that the legislative act of the last session prohibiting its exercise was, in reality what it purported to be, only declaratory of the prior law.

The proceedings of the commissioners must be reversed for want of jurisdiction.

Campbell and Christiancy JJ. concurred. Martin Ch. J. concurred in the result.