Stayton v. Hulings

Gookins, J. From an order of the board of commissioners of Fulton county for opening a county road, Slayton appealed to the Circuit Court. The Circuit Court dismissed the appeal, because Stayton was not a party to the proceedings, and had not filed an affidavit showing his interest in the subject and that he was aggrieved by the decision. When the proceedings were had, the revised statutes of 1843 were in force, which provide for an appeal to the Circuit Court from all decisions of the board of commissioners, to be taken within thirty days by any party aggrieved by the decision; but if the person appealing is not a party to the proceeding, the appeal shall not be allowed, unless the appellant shall file in the auditor’s office an affidavit, stating that he is aggrieved by the decision, and setting forth explicitly the nature of his interest in the subject. K.. S. 1843, pp. 186-7, ss. 37, 38. These provisions are ctintained in the chapter relative to the board of commissioners and their duties. The chapter concerning highways, contained in the same revision, (p. 333, ss. 56, 57) gives an appeal to any person who shall consider himself aggrieved by any decision of the board in the performance of any duty under it, to be taken within sixty days. This provision is re-enacted in the act of 1849, p. 108, in the same language, which was in force when these proceedings were commenced. The material inquiry is, are these two provisions to be [146] construed together, or independently of each other? If the former, the appeal was not well taken, for want of an affidavit. If the latter, no affidavit was required. We think they are to be construed together. They were enacted at the same time; the first is general, providing for an appeal from all decisions of the board, but as proceedings before them are mostly ex parte, the person appealing is required to show his interest and grievance, and to execute an appeal bond to insure the payment of costs. The provision concerning highways, specifies one of the subjects of the jurisdiction of the board, and provides for an appeal from decisions relating to them; but for reasons satisfactory to the legislature, gives sixty days for perfecting the appeal. It requires neither affidavit nor bond, so that any person, however uninterested in the sub1 ject or irresponsible for costs, may prosecute the appeal, if the provisions are to be construed independently of each other. Statutes should be so construed as to give a reasonable effect to every part, if capable of such construction. The appellant insists that the affidavit might be dispensed with, because the appeal showed that the party was aggrieved; that the laying out of a road through his land showed his interest, and that the board admitted him as a party, by allowing his appeal and approving his bond. As to the first point, the argument is in a circle; the appeal shows him aggrieved, and therefore the appeal is well taken. As to the second, admitting that the laying out of a road through his land shows his interest in the subject, that is not enough to authorize the appeal. It may have been a great benefit to him, and he must show himself aggrieved. Nor can the third position prevail. The board has nothing to do with allowing the appeal or approving the bond. Those duties devolve upon the auditor. R. S. 1843, p. 187, sec. 38. On the motion to dismiss the appeal being made, the appellant interposed a cross motion for leave to file the required affidavit, which was refused, of which the appellant complains. The statute is not merely permissive, but it declares that the appeal shall not be allowed unless the [147] affidavit is filed with the auditor. When a statute is merely directory, a thing omitted to be done at the proper time may be allowed afterwards. Rex v. Loxdale, 1 Burr. 445.—Thames Manufacturing Co. v. Lathrop, 7 Conn. 550. But where a statute expressly prohibits a thing, until another has been done, the prohibition can not be disregarded without judicial legislation. D. jD. Pratt, for the appellant. H. P. Biddle and B. W. Peters, for the appellee.. Stuart, J., having been concerned as counsel, was absent. Per Curiam. The judgment is affirmed with costs.