183 P. 768 | Or. | 1919
“Had the journal entry of the County Court recited that satisfactory proof had been given by advertisement, posted at the place of holding the County Court, and also in three public places in the vicinity of the proposed road, it would be presumed that jurisdiction had been acquired, though the affidavit of posting was ambiguous in its statement of facts.”
It is true that the court, in Minard v. Douglas County, 9 Or. 206, and in King v. Benton County, 10 Or. 512, speaking through Justice Waldo, announced a rule that would, if now adhered to, reject the proof of posting offered in the case at Bar. In fact, the requirements as to notices were so technical as announced in these opinions, that they have been disregarded, if not expressly overruled in later decisions.
In Vedder v. Marion County, 22 Or. 264 (29 Pac. 619), Strahn, C. J., referring to Minard v. Douglas County, 9 Or. 206, says:
“We deem it a fitting occasion to say, in relation to that case, as well as the case of King v. Benton County, 10 Or. 512, which followed it, that they introduced a degree of strictness and technicality into the practice, in the matter of the location of county roads, that renders it unnecessarily onerous and expensive, and which is at variance with the entire course of procedure which had prevailed here since the territorial days and up to the time those cases were decided. Nor did the court seem to give any weight whatever to the principles of contemporary construction in such case, which is frequently allowed to have a controlling effect in such matters. Viewing these cases in that light, the*563 tendency is now to limit their doctrines, or at least to see that they are not extended.”
The question is one not free from difficulty, but we are of the opinion that the report was filed in time. It is very evident that plaintiffs were not injured in any way by the failure of the viewers to file their report a day earlier and while this circumstance would not avail if there were an injunction of the statute requiring the report to be filed at a particular time, yet we do not feel inclined to construe into the law a requirement which it does not contain, in order to defeat a proceeding which seems fair and regular.
It is unusual for an officer to state in his return that he has taken the oath required by law, and it seems to the writer that it is wholly unnecessary where the law does not require a record of such oath, to make any return concerning it;, however, the decision of that question is unnecessary, as the report complies with the requirements of the better authorities on that subject. i
We fail to find any failure of jurisdiction, or any error affecting the substantial rights of the plaintiffs; therefore the judgment of the Circuit Court is affirmed.
Affirmed.