Barr v. Flynn

Philips, P. J. I. The only question for determination raised on this appeal, is as to the sufficiency of the petition. It is insisted that the county court has no power to condemn private land for a private road, except when it is a private way of necessity. This proposition is correct. Article 2, section 20, of the constitution of 1875, declares: “That no private”property can be taken for private use with or without compensation, unless by the consent of the owner, except for private ways of necessity,” etc. This provision of the constitution is of controlling force, and being the supreme law of the state, it must prevail over any conflicting legislative act. It being a jurisdictional fact, it is essential that the petition for such way should aver that it is a way of necessity. Colville v. Judy, 73 Mo. 654. But this petition does aver “that said road is a private way of necessity,” and it is, therefore, in conformity with the constitutional requirement. II. It is further objected that the petition does not allege that the petitioner’s land is “surrounded or enclosed, or cut off and shut out from a public highway by the lands of other persons,” who refuse to grant the [387] right of way. This language is taken from section 3951, chapter 70, Revised Statutes of 1879, which declares that: “When the lands of any person shall be surrounded or enclosed, or be shut out from and cut off from a public highway, by the lands of any other person •or persons, who refuse to allow to such person a private road to pass to or from his or her said land, it shall be the duty of the county court, on petition,” etc. This presents the inquiry as to whether this chapter was authorized by the legislature. It appears, from a foot note, appended by the revisers of the General Statutes of 1879, that this chapter was taken from chapter 115, Revised Statutes of 1855, and by them, substantially, incorporated in the compilation of 1879. This chapter was entirely omitted from the revision of 1865, as, also, from Wagner’s Statutes of 1870-2. The revisers were of opinion that this chapter had not been ‘directly repealed by the legislature, and that, therefore, it was their duty to incorporate it into the revision. After providing for the constitution of a committee on revision, section 3162, Revised Statutes, 1879, in defining their duties, says, they “are authorized and empowered, after the adjournment of the thirtieth general assembly, * * * to collate, compile, arrange, classify and codify the Revised Statutes for publication, * * * and they sba.il have power to supply any omission, or correct any error or mistake in numbering or referring to the sections or parts of any act or law, and in compiling such portions of the General Statutes of 1865 as may be incorporated into the Revised Statutes.” I am unable to discover in this power of attorney any authority of the revisers to incorporate the provisions of said act of 1855, omitted from the statutes of 1865. This act of 1855 was omitted from the statutes of 1865. By the express provisions of section 2, chapter 224, of the statutes of 1865, it is declared that: “All acts contained in the Revised Statutes of the state of Missouri, as revised and digested by the eighteenth general assembly, in the years 1854 and 1855, contained in chapters [388] numbered from one to one hundred and seventy-one, inclusive, in the published edition thereof, and all subsequent acts, of a general public and permanent nature, embodied and re-enacted, in whole or in part, in the General Statutes, or. repugnant thereto, are hereby, except as provided in the fifth section of this chapter, repealed.” Said section five does not save said chapter of the statutes of 1855. It certainly, therefore, was repealed by the statutes of 1865. It is also quite evident that Judge Wagner, in omitting the act of 1855 from his compilation of 1870-2, which was accepted by the legislature, did not regard it as in force. And, again, in 1868 (Laws of Missouri, 1868, pp. 149 to 162), the legislature revised the whole road law, public and private, and no such provision as that of 1855 was incorporated. As held in Smith v. State (14 Mo. 152), and in State v. Roller (77 Mo. 120): “A statute is impliedly repealed by a subse quent one revising the whole subject-matter of the first.” This statute of 1868 was incorporated by the legislature in the revision of 1879. In view of all of which it is difficult to discover the authority of the revisers to thus revive an act which had thus been treated as obsolete for fourteen years. The law in force at the time of the presentation of this petition to the county court, was that of 1883 ; (Laws of Missouri, 1883, p. 168), which is, substantially, that of 1879 and 1868. In Colville v. Judy, supra, the court held the petition, drawn, apparently, under the act of 1868, as defective, because it failed to state that the road was a “way of necessity.” The petition under review contains all the averments of that in Colville v. Judy, with the addition required that the road “is a private way of necessity.” The bill of exceptions states that the proof showed that it was such a way, and the judgment of the court shows that the court, from the evidence, found all the essential facts entitling the petitioner, under the consti [389] tution, to have relief. We are of opinion, therefore, that the judgment should be affirmed. It is so ordered. All concur.