32 Wis. 663 | Wis. | 1873
The following opinion was filed at the January term, 1873.
A motion was made to dismiss the appeal in this case; and, although that motion has already been decided, yet no opinion has been filed indicating the view we took of the questions raised by it. The point is deemed of sufficient importance to justify a few remarks before we proceed to consider the case upon the merits.
The action is brought to recover' the penalty given by the statute for the willful obstruction of a public highway. Sec. 101, ch. 19, R S.; also sec. 101, ch. 152, Laws of 1869. On the trial the verdict was for the defendant; and the state has brought the case to this court to review exceptions taken to the rulings of the court below. And the objection is, that the action is criminal in its nature, and that the state is not entitled to an appeal or writ of error in such an action.
We think, however, that counsel are. mistaken in supposing that this is a criminal proceeding within the meaning of that clause of the constitution which provides that “ no person for
The other question arising upon this record is one of more embarrassment, owing to the want of a well digested statute in regard to public highways and the powers of town boards of supervisors in respect to them. In the case before us the supervisors of the town of Platteville made an order altering, within certain limits, a highway laid out by commissioners in 1838, under an act of the territorial legislature, from Osceola to Belmont. And it is for placing obstructions in the old road where this alteration was made, that the defendant is
Now it is said by the counsel for the plaintiff, that the words “all state roads,” as used in this provision,refer to and include not only those highways which were laid out and established by the state since the formation of the state government, but also all the roads which were laid out as territorial roads, and therefore the prohibition upon the town board applies in all cases.
We should have no serious difficulty in sustaining this view of the matter were this the only provision of the statute bearing upon the question; but it is not. On the contrary, the legislature seem, in the enactments upon the subject, to make a distinction between state roads and territorial roads. This, we think, will be apparent upon.-a careful examination of the various provisions of the statute Where these two classes of highways are recognized. It- may not be' easy to assign any satisfactory reason for the distinction, and for giving the town board power to alter a territorial--road within certain limits, while expressly prohibiting them from changing a state road in any case. But such seemg to be the condition of the statutory law. The law of 1869 professes to be a codification of the statutes relating; to highways, and in most particulars supersedes the former statute. But it does not entirely do away with previous provisions. For instance, section 90, ch. 19, R. S., re
The court below assumed, and so in effect instructed the jury, that the supervisors of the town of Platteville had authority to alter this road. In this we think there was error.
On a motion for a rehearing, the defendant’s counsel cited the title of ch. 152, Laws of 1869 (“An act to codify the laws of this state relating to highways and bridges ”), and argued both from this title (Conn. Ins. Co. v. Albert, 39 Mo., 181; Jackson v. Gilbert, 15 Johns., 89, 116; Crespigny v. Wittenoom, 4 Term, 793; Supervisors of Niagara v. People, 7 Hill, 511; Bac. Abr., tit. “ Statutes;" Dwarris on Stat., *654), and also from a comparison of the act with ch. 19, R. S., and the subsequent statutes relating to the same subject prior to 1869, that the act of 1869 was intended as a complete revision and codification of all the laws of this state relating to highways and bridges, and should be regarded as virtually repealing ch. 19, R. S. Sedgw. on Stat. & Con. Law, 126; Bartlett v. King, 12 Mass., 563; Comm. v. Marshall, 11 Pick., 350-1; Ellis v. Paige, 1 id., 45; Constantine v. Van Winkle, 6 Hill, 184-5; Burlander v. R. R. Co., 26 Wis., 76, 77; Buck v. Shofford, 31 Me., 134; Ill. & Mich. Canal Co. v. Chicago, 14 Ill., 334; Goddard v. Boston, 20 Pick., 410; Nichols v. Squire, 5 id., 168; Comm. v. Cooley, 10 id., 39. 2. They also argued further from the phraseology of sec. 90, ch. 19, R. S., that the words “when such road lies wholly within such town ” can only be understood of a road not located upon a town line, but whose whole breadth is within the town “through which” it “shall pass;” the supervisors being authorized in that case “ to alter the same within their town ” — an expression which cannot be supposed to have been used of a road whose whole length was within such town.
The appeal was finally disposed of at the June term, 1873.
There are two theories of this case, which lead to the same result, although they are not consistent with each other. One is that adopted by the court, to the effect that the law of 1869 (ch. 152) does not operate as a repeal of section
When this cause was first considered, I was strongly inclined to think that the latter is the true theory; and a further consideration of the case on this motion has confirmed me in that view. I can see no good reason why the town supervisors should be vested with powers over roads established by the territorial legislature, which they are prohibited from exercising over roads of the same character established by the state legislature. If the town supervisors may not interfere with a road from A. to B. established by the legislature of 1849, why should they be permitted to interfere with a road between the same points established by the legislature of 1847 ? The reasons for the restriction upon the powers of the town authorities are the same in either case, and I cannot think that the law of 1869 contemplates that there shall be a restriction upon such powers in one case and none in the other.
In my opinion it accords best with sound rules of statutory construction, to hold that the term “ state road,” as used in that law, includes all roads established by the legislature without the intervention of county or town authority, whether the same were established before or since we became a state. The use of the term “ territorial road ” in sec. 89 of the law of 1869, it seems to me, is too slight a circumstance to justify us in so construing the statute as to defeat its plain and obvious purpose and intention.
Entertaining these views, I am prepared to admit that sec. 90 of ch. 19 of the revised statutes is repealed by the act of 1869, in so far as the two statutes are in conflict, and that the former opinion is, in that respect, erroneous. But, for reasons already stated, such error (if it be an error) does not change the result.
By the Gourt. — Motion denied.