Fergus County Democrat., 1915-09-30
AYERS DECIDES
A ROAD MATT TER
COMMISSIONERS CANNOT ACT AS
VIEWERS AND RAfIFY THEIR
= OWN ACTS,
ORDER BASED ON THIS IS vQID

UkuEk MStu W IhS u IL
Judge Roy Ayers Saturday filed his
decision in the case of the state. on
relation of George w. Flock, against
the county commissioners. The case in
wolves road matter that is of gen
eral interest because of the principal
laid down by the court. The decision
says:
From the pleadings it appears that
the board OF county commissioners
have created and established new
road and abandoned an old one, and
that the old road is now obstructed
and closed, and that the obstruction
and closure resulted from an order
of the board of county commissioners
based upon petition for a new road
wherein one E. S. Smith demands, as
consideration for the right of way for
the new road, the closing of the old
road, but does not describe the road
proposed to be closed, and the said
board of county commissioners, on
July Is, 1914, made an order known
as Order Made Re Road No. 425,'
wherein they recited, that the viewers
report having been approved and the
new road being open for travel, it,
the new road, is ordered and declared
to be county road, and it further or
ders that e. S. Smith, having donated
the right of way therefore and fenced
the same, is therefore entitled and
authorized to fence the old road, and
the old road is accordingly ordered
abandoned.
is: Did the commissioners have au-
thority to make said order or any
part thereof?
II will first consider the said Pc
tition, which, at first reading, would
seem sufficient for the creation Of a
new road, but scrutiny will show that
the same was never acted upon by a
legal board of viewers. The board of
county commissioners appointed two
of their own members, together with
the county surveyor, as board of
viewers to view the said road, and
proceeded to act in such capacity and
then when in session as board Of
county commissioners, made an order
ratifying their own acts when they
were acting as a board of viewers.
Such action must be declared illegal.
The commissioners, by law, may visit
proposed roads themselves, but they
must do so as county commissioners,
and not appoint themselves as board
OF viewers for that purpose, for they
cannot, as commissioners, sit in judg-
nent upon their own acts as road
viewers.
"In reference to the abandonment of
the old road ordered abandoned, moth
ing is set out in the petition giving
the commissioners jurisdiction to
abandon any road, and the first de-
scription of the road attempted to be
abandoned is found in the order aban-
doning 1t. The law provides that all
public highways once established must
continue to be public highways until
abandoned by operation of law or by|
judgment of court of competent
Jurisdiction, or by an order of the
county commissioners, but no order
made by them to abandon any high
way shall be valid unless preceded by
due notice and hearing, as provided
law: and to abandon highway, the
petition must set forth and describe |
particularly the highway to be aban-
dOned or discontinued. Hence, the pc
tition is the foundation of the juris-
diction of the board in establishing a !
new road or abandoning an old one,
or both, and they can only act upon
matters included within the petition
further they cannot go. Any order
or act of the board in excess of the |
terms of the petition, or matters nee
essarily implied by the petition, are
void. and we certainly cannot imply
an entire description of a road to be
abandoned.
For the foregoing reasons this
court Is of the opinion that the said
order, Of the board of county commits
Is entirely void and Of no ef.
feet, and that they did not create orl
establish a new road nor abandon an
old road, and that the closure and
obstruction of the said old road is un-
and unlawful; that the re-
spondents have not shown cause whyl
\ writ of mandate should not issue out
of this court commanding them tol
forthwith remove the obstruction andl
open said old road, and that their an.
'wer does not state a defense.
Wherefore, it is ordered, that the
notion to quash the alternative writl !
IT mandate be overruled and the de.
nurrer to respondents answer be u.s. t
aimed; and it is further ordered that
peremptory writ of mandate issue
'ut OF this court, under the hand and t
zeal Of the clerk thereof, directing and a
respondents to forthwith /
md Immediately remove, or cause to S
'e removed, the obstructions, and the l
Whole thereof, from the said old road"
THREE ARRESTED: !