Van Buren v. Village of Elmwood

Good, C. Plaintiff, who is tbe owner of blocks 29 and 32 in tbe village of Elmwood, in Gass county, petitioned tbe board of county commissioners of said county to vacate tbe street lying between said blocks. Tbe village of Elmwood appeared and filed written objections to tbe jurisdiction of tbe board of county commissioners to act in tbe matter, upon tbe ground that said village of Elmwood was a duly incorporated village, and tbe streets, alleys and public grounds of said village are solely under tbe jurisdiction of tbe board of trustees of said village, and tbe board of county commissioners was without power or jurisdiction to vacate streets or alleys of an incorporated village. The county board found that it was without jurisdiction to bear the matter and dismissed tbe application. Plaintiff thereupon duly excepted to tbe decision of the board and filed a petition in error to tbe district court for said county. The district court rendered judgment dismissing plaintiff’s proceeding in error, for the reason that tbe county commissioners had no jurisdiction to hear and determine said matter. Plaintiff has appealed. Tbe plaintiff’s application to tbe county board to vacate tbe street was based upon tbe provisions of an act of the legislature of 1871, entitled “An act to provide for vacating streets, alleys and public grounds in towns and villages.” Laws 1871, p. 125. This act is carried into the Annotated Statutes, 1907, as section 9015 to 9018, inclusive. Section 9015 authorizes persons desiring to have any street in a village vacated to give notice of bis application to tbe county commissioners for tbe vacation of such street. Section 9016 authorized tbe county commissioners to appoint persons to examine such street and report at tbe next meeting of tbe board whether any injus [598] tice or any inconvenience would be worked by tbe vacation of such street. Tbe board, upon such report and other testimony presented by tbe applicant, or others opposing tbe vacation, is authorized to decide for or against vacation of tbe street. By section 9017 tbe board, if convinced that no injustice would be worked by such vacation, is required to order such vacation. It is conceded that, if this act is in full force, tbe county board was vested with jurisdiction to bear and determine tbe application. Defendant contends, however, that tbe act of 1871 was repealed in 1873 by an act of tbe legislature entitled “An act relating to incorporated towns and villages.” This latter act is found in chapter 81 of tbe General Statutes of 1873. Section 7 thereof provides, among other things, that the board of trustees of each incorporated village or town shall have tbe power to have tbe streets opened, cleaned and repaired. Section 29 of tbe act provides for tbe repeal of “chapter 53 of tbe Revised Statutes entitled ‘towns,’ and all other acts and parts of acts inconsistent therewith.” An examination of this act does not disclose that tbe power to vacate streets was given or attempted to be given to tbe village trustees, nor do we perceive that tbe act of 1873 was in conflict with tbe act of 1871, so that tbe repealing clause contained in section 27 of tbe act of 1873 would not operate to repeal tbe act of 1871. In 1879, however, tbe legislature passed an act “to provide for tbe organization, government, and powers of cities and villages.” Laws 1879, p. 193. In addition to other powers granted to cities and villages, section 69 authorized cities and villages under tbe provisions of tbe act to enact ordinances or by-laws for tbe following purposes: “Subdivision XXVII. To open, widen or otherwise improve or vacate any street, avenue, alley, or lane within tbe limits of tbe city or village, and also to create, open and improve any new street, avenue, alley, or lane.” Section 117 of this act provided for tbe repeal of certain specific acts, and also for the repeal of all acts and parts of acts inconsistent with tbe provisions of said act. [599] The plaintiff contends that the power to vacate streets which was given to the county board by the act of 1871 was to be exercised only for the benefit of the private owner, and when no person was injured by such vacation, and that the power to grant relief under these circumstances was not given to the village board of trustees by the act of 1879. We are unable to concur in this view. The power to vacate streets which was granted to the village board of trustees by the act of 1879 is not limited or circumscribed. ■ Its power to vacate streets is full and ample, and reaches to every possible case where a village street might properly be vacated. We think the act of 1879 is clearly in conflict with the act of 1871, and that the repealing clause contained in section 117 of the act of 1879 operated as a repeal of the act of 1871 in so far as it conferred upon county boards the power to vacate streets in incorporated villages, and thereby deprived county boards of jurisdiction to vacate such streets. The county board properly sustained the objection to jurisdiction and dismissed the application to vacate the street, and the judgment of the district court sustaining the action of the county board was right, and should be affirmed. Duffie, Epperson and Calkins, CO., concur. By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is Affirmed.