Van Antwerp v. Dell Rapids Township

3 S.D. 305 | S.D. | 1892

Kellam, J.

Appellant., who was plaintiff below, brought this action to recover for services performed under a contract alleged to have been made with the defendant, through its board of supervisors, by which he was to, and did, “locate and survey the roads and highways” in the defendant township. Defendant answered, denying the making of the alleged contract, and averring that the pretended survey was negligently and unskillfullymade, and was of no value. Upon the trial the court directed a verdict for defendant, and plaintiff appeals from the judgment entered thereon. During the trial a number of questions arose upon the admission and rejection of evidence, in the decision of which appellant claims error. We think, however, that the ruling of the court in directing a verdict for defendant must be sustained, on the ground that the defendant township had no power to make the contract upon which plaintiff’s cause of action confessedly rests. Appellant’s argument is that section 1189, Comp. Laws, makes every section line a highway. Section 1264 imposes upon the township supervisors the duty of caring for and superintending such highway, and that it is a necessary and incidental power of such supervisors to ascertain, in case of doubt or dispute, by proper and adequate means, the true location of the line upon which such highway is laid. We think this argument and conclusion would be legitimate and correct but for the apparent design of the statute to lodge this power elsewhere. The incidental powers of a corporation are such as are implied because found necessary to carry out the general purpose of the corporation. The implication springs from such necessity. It rests upon the presumption that, because the exercise of such powers are so necessary in carrying into execution such general purpose, the legislature intended that they should be covered by and become a part of the general grant, as incidental or subsidiary thereto, without special mention. This principle has been so often applied in construing and measuring corporate powers, both public and private, that we need not cite authorities. The theory of this presumption is that, in authorizing the accomplishment of a general ultimate purpose, the legislature must have intended to authorize the use of the means essential and indispensable to such accomplishment. Such means, to be so impliedly authorized, must be not only convenient, but indispensable. Cook Co. v. McCrea, 93 Ill. 236; Ottawa v. Carey, 108 U. S. 121, 2 Sup. Ct. Rep. 361; City of Eufaula v. McNab, 67 Ala. 588; Dill. Mun. Corp. (4th Ed.) § 89. But this presumption is repelled in this case by the evident design of the statute to place this power, so claimed as belonging to the township supervisors, in the hands of the county commissioners. If the law has made other adequate provision for resurveying, these section line roads when in doubt or dispute, then it could not be claimed that the township supervisors possessed such power as incidental or implied, because it would not then be necessary. Said section 1189 locates a highway in general upon every section line; and the next section commits the power to change or vacate such highway to the board of county commissioners. Section 1218 authorizes such board of county commissioners to “establish * * * highways upon section and quarter-section lines when the initial and terminal points and the course of the highway can be clearly described without the appointment of viewers or the services of a surveyor.” This section plainly suggests that where this condition of certainty does not exist, — where the initial and terminal points and the course of the highway cannot be clearly described, — it may be necessary for such board to employ a surveyor; and this contingency is provided for by section 689, which makes it the duty of the county surveyor to “make in a good and professional manner all surveys of * * * public roads, when so. directed by said board, (county commissioners,) and his surveys shall be held as presumptively correct.” For such services— surveying county roads — his compensation is definitely fixed by section 1422. These various provisions all seem to tend toward the conclusion that the matter of the resurvey of section-line roads, when necessary, was, by the law as it then stood, committed to the board of county commissioners, with the expectation that it would be done by the official surveyor of the county, and at a compensation fixed by law. We think it reasonably plain that the only contingency which could have called into exercise the claimed implied powers of the township board to make a resurvey of the section-line road, to wit, the obliteration of the orMnal government marks, has heen adequately provided for in the foregoing and other cognate sections, and, taken together, they indicate to us that it was then the theory and plan of the law to intrust to the board of county commissioners the power and duty of providing for definitely locating these lines, when necessary on account of doubt or dispute, and that, consequently, such power could not properly or lawfully be exercised by the township board, as an incidental or implied power, because there would exist no necessity or occasion therefor. We do not regard this question as entirely free from difficulty, but the rule is that, if the possession or right to exercise any corporate power is in doubt, the doubt prevails, and the power is denied. Minturn v. Larue, 23 How. 435; Hanger v. City of Des Moines, 52 Iowa, 193, 2 N. W. Rep. 1105; City of Corvallis v. Carlile, 10 Or. 139; Dill. Mun. Corp. (4th Ed.) § 89. It is true that the subsequent law of 1890 (chapter 35) authorizes the electors at the annual town meeting to determine whether landmarks shall be erected at section and quarter-section corners, and empowers the township board, in certain cases, to have lost or obliterated corners on the highway located by a competent surveyor; but this would indicate that, in the opinion of the legislature, the board did not possess such power before. The very evident thought of the legislature in such enactment is to thereby give a new power to the township electors at their annual town meeting, and to the board of township supervisors. For the same reason, that the township supervisors had no power to make the contract sued on, a majority of the electors could not cause or authorize the same to be made. As to either, or both, it was ultra vires. The judgment of the circuit court is affirmed.

All the judges concurring.