Vedder v. Marion County

Strahan, C. J. Inasmuch as none of the papers in this record is claimed to be defective in form, it will be most convenient to notice the separate objections urged by counsel in support of the ruling of the court below, and thus confine the discussion to the narrowest limits. The first objection made is to the proof of the service of the notices—copies of the original being posted and not original notices. The statute.on the subject of notice is as follows: “When any petition shall'be presented for the action of the county court for laying out, alteration, or vacation of any county road, it shall be accompanied by satisfactory proof that notice has been given by advertisement, posted at the place of holding county court, and also in three public places in the vicinity of said road, or proposed road, thirty days previous to the presentation of said petition to the county court, notifying all persons concerned that application will be made to the said county court at their next session for laying out, altering, or vacating such road, as the case may be.” (Hill’s Code, § 4063.) The next section empowers the county court to act upon the presentation of such petition and proof that notice has been given as provided in the last section, etc. It will be observed that the section is entirely silent as to whether the notices posted should be copies or originals; and in the absence of a legislative requirement on that subject, we must in this, as in all cases when we are called upon to construe an act of the legislature, be governed by the language used; or if that be uncertain or impracticable, then by the ordinary rules of interpretation. In this case both reason and all of the analogies of the law tend to sustain the practice of posting copies. Practically, where, several notices are written at the same time by the same hand, and each is a counterpart of the other, in a general sense each might be said to be a copy. At least there is nothing in the simple fact of so preparing them as necessarily to make one an original and the other copies. But we must here [269] assume, because the record so recites, that the notice posted were copies, and the question is, whether or not the posting of copies is sufficient. When the petitioners present their petition to the county court for its action, it must be accompanied by satisfactory proof that notice has been given by advertisement posted, etc. This posting is nothing more than a statutory method of constructive service. If personal service had been authorized or required, according to all the analogies of the law it would have been by serving a copy of the notice; and no reason can be suggested that is at all satisfactory why a party may not be constructively served by posting a copy when the law does not expressly require a different method. Notices generally are served by copy. (Hill’s Code, §§ 527, 529.) Notices of appeal to this court are served by copy. (Hill’s Code, § 537.) And so is a summons. (Hill’s Code, § 55.) If the evidence of a copy is a sufficient foundation for the most solemn judgments and proceedings in the courts of general as well as appellate jurisdiction, no good reason appears why it is not sufficient authority to enable the county court to act in laying out a county road. Minard v. Douglas County, 9 Or. 206, was relied upon by counsel for the respondent as an authority on this point. The language of the court in that case does not directly declare that the notices posted must be originals, though the implication is pretty strong that the writer of that opinion thought that to be the correct rule; and since its promulgation the bar has generally regarded that case as establishing that doctrine. But if that rule be deducible from that case, it cannot receive our sanction or approval, and to that extent that case may be regarded as no longer authority. And we deem it a fitting occasion to say in relation to that case, as well as the case of King v. Benton County, 10 Or. 512, which followed it, that they introduced a degree of strictness and technicality into the practice in the matter of location of county roads that renders it unnecessarily onerous and expensive, and which, is at variance [270] with the entire course of procedure which had prevailed here since the territorial days and up to the time those cases were decided. Nor did the court seem to notice or give any weight whatever to the principles of contemporary construction in such case, which is frequently allowed to have a controlling effect in such matters. Viewing these cases in that light* the tendency is now to limit their doctrines, or at least to see that they are not extended. The other question, that a petitioner is incompetent to make proof of the posting of notices, was not insisted upon for the reason it had already been decided adversely to the respondent in Gaines v. Linn County, 21 Or. 425. Whether it is a proper practice to unite in the same application a request for the location of a county road and the vacation of a part of a road, we need not consider, because there is no objection made by the proceeding on that ground. We can readily imagine a case where the location of the new road would virtually supersede the old or render it useless or unnecessary. In .such case we see no objection to such practice. On the other hand, if there be no connection or relation whatever between the two, no doubt that the better practice would be to prosecute them by separate proceedings., But particular objection is made to that part of the petition relating to the vacation of the part of the county road mentioned, on the ground that the terminal points are not sufficiently specified. The objection is merely technical, but it is not sound. The road is clearly identified. It is the present county road leading from said Shuck’s mill to said town of Woodburn, and the part to be vacated is situated between the termini of said proposed road, but runs diagonally across the land claim at present owned by G. W. Vedder and Joseph Schafer, respectively, in said Marion county. This description may not be quite intelligible without reference to the survey. The proposed road does not run across these farms. The old one does, but the terminal points are the same; and taking the two [271] descriptions together, the latter is rendered sufficiently certain. The judgment appealed from is reversed, with directions to the circuit court to remand the cause to the county court to be there further proceeded with in accordance with this opinion. Bean, J., concurs. Lord, J., expresses no opinion.