28 S.D. 44 | S.D. | 1911
This is an appeal by the defendant from a judgment of the circuit court affirming an order made by the county commissioners of Spink county requiring said defendant to construct a crossing- over a section line highway crossed by the defendant company’s railroad.
The proceedings were instituted under the provisions of sections 527 to 531, inclusive, of the Civil Code, which provides, in substance, as follow's: Whenever five electors, residents upon a traveled -highway upon any section line in this state over or across which any railroad company may have a track or operate a line of railroad, shall petition such company to construct a crossing
The conclusions of law were made by the court in favor of the respondents, but those proposed -on the part of the appellant upon said facts, and which the court refused to- adopt, are as follows: “(2) That the public highways in question, upon its inclusion within the municipal boundaries of the city of Redfield, Spink county, S. D., on the incorporation of the said city, became ipso facto a street and subject to municipal control. (3) That the board of county commissioners of said Spink county have not now and at
The appellant contends that, as the crossing was within the limits of the city of Redfield, the city council of that city had exclusive jurisdiction over the subject of this crossing, and that the board of county commissioners was without jurisdiction to take any action in the matter. We are inclined to take the view that the appellant is right in its contention.
It is contended by the respondents that as it is provided by section 527 that “whenever five electors, residents upon a traveled highway upon any section line in this state over or across which any railroad company may have a track or operate a line of railroad, shall petition such company,” the law is general in its character, and vests the board of county commissioners with authority to make the order specified, whether the section line highway is without or within the limits of the city, and that, therefore, the board had jurisdiction to make the order requiring the defendant to construct the crossing notwithstanding the crossing was within the city limits, but we are unable to agree with counsel in this contention. The law giving jurisdiction to the board of county commissioners to act must, we think, be construed as applying only to highways without the city limits, as any other construction would necessarily produce great confusion and unnecessary friction between the board of county commissioners and the city council. The learned author on municipal corporations (28 Cyc. 837) says: “A public highway in rure, upon its inclusion by incorporation or annexation, within municipal boundaries, becomes ipso facto a street, and subject to municipal control.” And on page 853 the author says. “lixcept where otherwise provided by statute, county authorities have no jurisdiclion over streets in a city.” And on page 943 the learned author says: “General statutes frequently give .to some county board or corresponding body power to control all highways within its jurisdiction, without excepting streets. It is well settled, however, that if a city be given power to control streets, its exercise of ■that power is exclusive, and a county board acting under a general road law will have no jurisdiction within its borders.” In McGraw v. Stewart, 51 Kan. 185, 32 Pac. 896, the learned Supreme Court of Kansas, in discussing the question of the
In Ottawa v. Walker, 21 Ill. 605, which is cited with approval in the case of Waynesville v. Satterthwait, 136 N. C. 226, 48 S. E. 661, speaking of the power to control the streets vested in the town authorities, it is said: “The power in its very nature would seem to be inconsistent with its joint or concurrent exercise by the two bodies, and even if the city charter was not subsequent in date, unless it plainly appeared from the language employed that it was intended to be joint or concurrent, it would be held that the power was- exclusive in the commissioners beyond the city limits, and exclusive in the common council within their jurisdictional limits, and neither have any power to- perform any acts in reference to this subject beyond their respective limits. * * * The exercise of such a power by each of these bodies would necessarily lead to endless strife and confusion, which the Legislature never could have intended to produce by these provisions.” In Cross v. Mayor, 18 N. J. Eq. 305, the learned Court of Errors and Appeals of New Jersey held, as appears by the head note, that: “The general act relating to roads does not apply to towns or cities the charters of which confer on the corporations the authority to regulate the streets.” And in its opinion the court -says: “But it has never seemed to me a matter susceptible of doubt that in case a city charter contains a special provision, putting the streets in charge of the officers of the corporation, such
While the cases last cited do not pass upon the identical question presented by this appeal, they indirectly support the position contended for by the appellant.
The judgment of the circuit court is reversed, and that court is directed to enter judgment dismissing the proceedings.