Gaines v. Linn County

21 Or. 425 | Or. | 1891

Steahan, C. J.

The objections taken by the motion in the county court to the alleged discrepancies between the petition and notice, and the alleged insufficient djAcription of the beginning, intermediate, and terminal points of the road, were all abandoned on the argument in jthis court, and need not be further referred to. The only points of objection specially insisted upon were the insufficiency of the posting of the notices and of the proof of sudh posting. The objection to the proof was that one of the petitioners could neither give nor make proof by his own affidavit that such notice had been given. '

Section-4063, Hill’s Code, provides: “When any petition shall be presented for the action of the county court for laying out, alteration, or vacation of any county r¿ad, it shall he accompanied by satisfactory proof that notice has been given by advertisement, posted at the place of holding county court, and also in three public places in the vicinity of said road or proposed road, thirty days previous to the presentation of said petition to the county court, notifying all persons concerned that application will be made to the said county court, at its next session, for laying out, altering, or vacating such road, as the case may be.” Section 4064, Hill’s Code, authorizes the county court, upon presentation of such petition and proof that notice has been given, as provided in the last section, to appoint viewers, etc.

Some questions involving the construction of this statute were before this court in Minard v. Douglas Co. 9 Or. 206. It was there said: “The parties moving in the proceeding are the petitioners, and it is clear they are authorized by the statute to give notice, because they are compelled to furnish proof that notice has been given. This necessarily implies, in the absence of other provisions, that they are authorized to give the notice.” The same statute which authorizes the petitioners to give the notice also requires them to furnish proof that it has been given, before the county court is authorized to proceed with their application; and no reason is perceived why this proof may not consist of the affidavit of one or more of the petitioners who know the facts that such notices have been duly posted. It would be an onerous .strained construction of the statute to hold that the Í were required to give the notice and then secure fice of some person other than one of themselves to fco the facts. Such a theory is outside of the statute, ids no sanction either in its objects or language. The fners, while performing the duty of posting notices, necessarily acquired the requisite knowledge of the place, time, and manner of their posting, and would, therefore, seem to be better qualified to testify as to the facts than a stranger. We perceive no reason why such proof may not be made by one or more of the petitioners.

The other question, that the proof submitted did not show a sufficient posting, was not seriously insisted upon. So far as we can determine from this record, the petitioners seem to have proceeded with unusual particularity and care in the preparation and the giving of notice. They were required to post the notices in public places, and, in this case, in the vicinity of the road proposed to be changed or altered. These essential and requisite facts certainly do appear to be as broadly and distinctly stated in the proof of service on file as could be done with any convenient brevity. More than that, the particular places on the road and the manner in which the notices were posted, are all distinctly stated. We have no doubt the record before us entitled the petitioners to have viewers appointed according to the prayer of their petition.

The judgment appealed from will, therefore, he reversed, with directions to the circuit court to reverse the order of the county court dismissing the petition, and to direct that court to proceed in such matter according to law and not inconsistent with this opinion.

Haying reached the conclusion that the action of the county court must be reversed on other grounds, we have not found it necessary to consider the question raised in this appeal, as to the effect of the absence of the county judge on the powers of the court to act in the transaction of county business. In other words, can the commissioners hold the county court for the transaction of countybrLg in the absence of the county judge? This questiol in this case in this court for the first time; and wP important, its decision is unnecessary at this time.