Abbott v. Board of Supervisors

36 Iowa 354 | Iowa | 1873

Day, J.

establishment —I. The notice of the application for á road stated that on a certain date a petition would be presented to the county auditor or to the board of supervisors, Section 328 of the Revision provides that the board of supervisors may confer upon their clerk power to perform such duties as cannot be performed by the board without too much delay or inconvenience.

Chapter 160 of the Laws of 1868 makes the auditor clerk of the board of supervisors. Section 2 thereof authorizes him to exercise the duties now performed by the clerk of the board of supervisors in relation to the establishment of roads, and for that purpose gives him jurisdiction to receive petitions, etc., subject to the final review of the board of supervisors.

"When the board of supervisors are in session no delay or inconvenience arises from the necessity of the presentation of the petition for a road to them.

Hence they can confer upon their clerk authority to receive such petition only when they are not in session. The effect of the notice in this case is, that if the board of supervisors should be in session at the time named, the petition would be presented to them, and that, if they were not' in session, it would be presented to the county auditor, their clerk. By this notice no one could be misled. Id cerium est quod certum reddipotest.

II. The error assigned upon sustaining the second ground of the demurrer has received no attention in the argument, and hence is regarded by us as waived. Snyder v. Eldridge, 31 Iowa, 129; Clise v. Freeborn, 29 id. 110, and cases cited.

g_oonstitutionai law. III. The principal question presented is as to the constitutionality of ordering the establishment of the road, without compensation first made or secured to the proprietor 0Yer whose land the road passes, when he has made no claim for damages. Constitution, art. 1, § 18; Revision, § 841.

This question cannot now be considered an open one. It arose directly in 1858. Connelly v. Griswold, 7 Iowa, 416, and McCrory v. Griswold, id. 248.

These eases both arose under the new constitution, and in them it was held that the owner of property taken for a highway is entitled to damages only in the manner prescribed by law, and that, if he claims no damages, none need be awarded. This doctrine has uniformly been adhered to from that time to the present. In Dunlap v. Pulley, 28 Iowa, 469, decided in 1870, these cases were approved and followed. Under such circumstances, Stare decisis, et quieta non movere is a maxim necessary, salutary and just. Affirmed.