In re Highway of Fillmore & Houston Counties

• Decision Date: 29 February 1924
• Docket Number: No. 23801.,23801.
• Citation: 158 Minn. 302,197 N.W. 741
• Parties: In re HIGHWAY OF FILLMORE AND HOUSTON COUNTIES.
• Court: Minnesota Supreme Court

158 Minn. 302

197 N.W. 741

In re HIGHWAY OF FILLMORE AND HOUSTON COUNTIES.

No. 23801.

Supreme Court of Minnesota.

Feb. 29, 1924.

Appeal from District Court, Fillmore County; Norman E. Peterson, Judge.

Certiorari on the relation of the County of Houston to review an order of the district court of Houston County directing the opening of a highway in Fillmore and Houston Counties. Order affirmed.

Syllabus by the Court

Laws 1921, c. 323, § 41, providing for the establishment by the district court of a highway running into more than one county, is not unconstitutional as delegating legislative powers to the judiciary; and the district court in opening such highway may, under authority of the statute to ‘direct the time and manner of opening the same for public use,’ require the counties to make it ‘reasonably safe for public travel’ within a time limit fixed. W. E. Flynn, Co. Atty., of Caledonia, and Geo. W. Bunge, of La Crosse, Wis., for appellant.

E. V. Knauf and Brown, Somsen & Sawyer, all of Winona, for respondent.

DIBELL, J.

Certiorari on the relation of the county of Houston to review the order of the district court of Fillmore county directing the opening of a highway in the counties of Fillmore and Houston.

The highway was the subject of the controversy in In re Highways, 191 N. W. 598, where we held that the burden of laying out and constructing a highway established under Laws 1921, c. 323, § 41, rested upon the counties, and not the towns, through which the highway passed. Upon the going down of the mandate, the court entered an order directing that each of the counties open for public use the part of the highway within its limits by May 1, 1924, the opening to include ‘making said highways * * * reasonably safe for public travel.’ This is the order under review.

By subdivision 5, § 41, c. 323, Laws 1921, it is provided that the order of the court, if a road is established or altered, ‘shall direct the time and manner of opening the same for public use.’ And upon receipt of the order ‘the county board shall proceed in accordance with its terms to open as much of the road as lies within its county for public use.’

The relator's objection is directed to the portion of the order which requires that the altered road be made ‘reasonably safe for public travel’ within a period fixed by the court. The point of it is that the statute unconstitutionally casts upon the court duties legislative in character.

In In re Judicial Road, 194 N. W. 775, and In re Klossner, 195 N. W. 284, both involving proceedings under the 1921 act, we reiterated the often announced doctrine that the necessity and propriety of establishing a highway is essentially legislative, not judicial. The case first cited refers to a number of road cases, and to some school district cases involving the same principle. The question of the general constitutionality of the statute is not serious, and hardly an open one. For 50 years we have had a statute for the establishment of judicial roads extending into more than one county. Laws 1872, c. 40; Forster v. Board (1901) 84 Minn. 308, 87 N. W. 921. In State v. McDonald (1880) 26 Minn. 445, 4 N. W. 1107, a judicial road under the statute was established without a question of its constitutionality. In Alexander v. McInnis (1915) 129 Minn. 165, 151 N. W. 899, we upheld Laws 1911, c. 254, known as the Elwell Law, against the claim that it unconstitutionally gave the judiciary legislative powers. That law provided the machinery for road construction. The statute now considered as noted in In re Klossner (Minn.) 195 N. W. 284, does not in respect of judicial...