Gillett v. McGonigal

Cassoday, J. Sec. 1300, R. S., authorizes the county board of supervisors, upon petition, to lay out highways under the circumstances therein mentioned; and also expressly provides that “all the powers herein mentioned may be exercised by a committee of not less than three members of the board, duly appointed for that purpose.” Under this provision it was held by the learned trial court that the committee of five, appointed by the chairman of the county board in pursuance of the resolutions mentioned in the foregoing statement, had full power and authority to lay out and .establish the road in question, without any approval of or sanction by the county board. The obvious purpose of the provision of the statute quoted was to obviate the necessity of the whole board personally viewing the line of the proposed highway. To [161] make such personal view in some counties where the members of the board are very numerous, and especially where the proposed highway is distant from the county seat, would be very expensive. Hence, to avoid such necessity and expense, the committee authorized was given “all the powers” of the county board in. viewing the proposed route and acting in the field. But this does not contemplate that such committee is not to report its action and determination to the county board, nor obviate the necessity of final action by such board upon such report. This is made plain by sec. 1302, E. S., which prescribes the method of procedure in laying out such road. The two sections relate to the same subjects, and must be construed together. Sec. 1302 provides that “ at the time and place-mentioned in such notice, . . . said board or its duly-appointed committee shall proceed personally to examine such highway, and hear any reasons that may be offered by parties interested therein. ... If a committee have been appointed’, they shall report their determination to the board, and their award of damages fdr lands taken. Upon the receipt of such report, or, when the board shall act without a committee, upon their determination, they shall malee mi order laying out . . . such highway, or refusing so to do, which shall be signed by the chairman and county clerk, and filed and recorded in the county clerk’s office.” Manifestly, this statute requires such committee to thus report to the board, and the board itself is thereby required to make the order laying out such highway, which order must also be signed and filed as thus required, before the same becomes a legally established highway. In the case at bar no such report or order was ever made, much less signed or filed. We must accordingly hold that there is no evidence that the locus in quo was within the limits of any legally laid out highway. It may be questionable whether the committee in the case at bar was legally appointed, or [162] whetber the order purporting to have been made by the committee was ever in fact signed by the four members who merely wrote their names upon a blank piece of paper, as mentioned in the foregoing statement; but we pass no judgment upon these questions. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.