delivered the opinion of the court:
Appellees are the owners of certain lands in Logan county over which a road laid out in January, 1919, if opened, will pass. They filed a bill to perpetually enjoin the appellant highway commissioner from opening the road. A decree was entered as prayed in the bill, and the commissioner of highways has prosecuted this appeal.
August 22, 1918, a petition addressed to appellant was filed with the town clerk to lay out the road. Appellant being unable to agree with all the land owners upon the damages to be paid, filed a certificate in the office of a justice of the peace in accordance with the statute, asking that a jury be called to assess the damages. A jury was called and assessed the damages of the respective land owners, and on December 14, 1918, appellant made an order denying the prayer of the petition and revoking all proceedings had thereon. Certain land owners prosecuted an appeal from that order, under section 91 of the Road and Bridge act, to the county superintendent of highways, who, after proceeding in accordance with the statute, on January 11, 1919, entered an order laying out the road and filed the order with the town clerk. On the first Tuesday in September, 1919, the commissioner of highways determined and certified the amount necessary to be raised by taxation for the construction, maintenance and care of roads and bridges in said town and to pay the damages awarded for laying out the road in question. At 'the same time he ordered anticipation warrants issued, payable to the order of the justice of the peace, for the use of the respective land owners in payment of their damages, but no money was ever received by or tendered to appellees within ninety days after the order of the county superintendent of highways of January 11, 1919, laying out the road, and the question involved is whether, under section 95 of the Road and Bridge act, the road was deemed vacated.
It is not disputed that all the legal requirements were complied with precedent to the order of the county superintendent of highways on appeal,, granting the prayer of the petition that the road “be and is hereby laid out according to the plans and specifications thereof now on file with the'commissioner of highways of said town,” and no question is raised as to the legal determination and assessment of the damages to the land owners. The order of the county superintendent of highways was made and filed in the office of the town clerk on January n, 1919. The damages had been fixed by a jury prior to the appeal to the county superintendent of highways -from the order of the commissioner denying the prayer of the petition. The final order laying out the road it is agreed was the order of the county superintendent of highways of January ix, 1919. After the final order of the county superintendent was made and filed no further steps were taken until the first Tuesday in September, when the commissioner of highways certified, as required by statute, the amount necessary to be raised by taxation for the construction, maintenance and care of roads and bridges in the town and the amount necessary to pay damages awarded for laying out the road. The commissioner ordered anticipation warrants to pay said damages, totaling $4040, payable to the order of the justice of the peace before whom the damages were awarded, for the use of the respective land owners. September 19 the town clerk notified each of the land owners to come to his office and receive the warrants, but appellees failed to do so, and on November 10 anticipation warrants were issued for the amount of the damages respectively awarded the land owners, payable to the order of the justice of the peace, who cashed them and deposited the proceeds in the Lincoln National Bank in a special account to his credit. He notified the land owners he had the money to pay each of them. Some of the land owners called and received their money, but appellees failed to call and get their money and later filed their bill to enjoin the opening of the road on the ground that they had not been paid or tendered the damages awarded them, and that as’moreuthan ninety days had elapsed since the final order laying out the road was éntered the road is deemed in law to be vacated.
Section.95 of the Road and Bridge act of 1913 is as follows: “Limitations of time to open.—All roads laid out as herein provided shall be opened within two years from the time of laying out the same. If the damages resulting from the establishing of such roads shall not be paid within ninety days from the time of the final determination to open the same as aforesaid, such new roads shall be deemed to be vacated.”
The decree is based on the construction of the statute that the order of the county superintendent of highways of January 11 was a final order that the road be laid out and opened as a highway, and the damages not -having been paid or tendered appellees within ninety days from that time the road is deemed vacated. Whether the decree was correct depends on the meaning of section 95. It seems obvious that the final order granting the prayer of the petition that the road be laid out as prayed could only mean that it be laid out and opened. There is no provision for a meeting to determine, or for a determination by the commissioner, whether the road shall be opened after the final order laying it out. That order makes it the duty of the commissioner to physically open the road as laid out, and as to that he has no discretion. The only discretion' he is allowed is that it must be opened for travel within two years. Where there are no damages to be paid land owners, or where arrangements are made whereby the land owners waive payment within ninety days, the commissioner may exercise a sound discretion as to what time, within two years after the road is finally ordered laid out and opened, he will physically open it. By section 97 the land owner is given a reasonable time, not exceeding eight months, to harvest crops and remove fences, and these tilings, and perhaps others, constitute the reason the commissioner is allowed to exercise a discretion as to the particular time, within two years, he will open the road to travel, but whether the road must be opened he has no discretion. By the plain language of section 95, if damages result from establishing the road they must be paid within ninety days from the “final determination to open the same as aforesaid” or the road shall be deemed vacated. The commissioner is allowed no discretion in complying with the requirements of that section. Unless section 95 is construed to mean something different from what its language imports, the decree of the circuit court was right.
Appellant contends the construction given the statute by the circuit court renders the act for laying out roads inoperative and unworkable where damages result from laying out and opening a new road, and refers to the provisions of the statute requiring the amount necessary to be raised by taxation to" be determined and certified by "the commissioner to the board of supervisors the first Tuesday in September, and since the land owner cannot be paid in warrants but payment must be made in money, (Caldwell v. Commissioners of Highways,
It is not improper to say, the legislature has recognized the unwisdom of the section involved and in 1919 amended section 95 to read that if the damages shall not be paid within ninety days “from the time the money is in the hands of the treasurer of the road and bridge fund to pay the same,” the road shall be deemed vacated.
The question here involved has not heretofore been passed upon by this court, consequently no authorities have been cited on either side which are in point or give any aid or guidance in the decision of the case.
The decree of the circuit court is affirmed.
Decree affirmed. »
.... _ _ . Mr. Justice Carter, dissenting.