Van Antwerp v. Dell Rapids Twp. of Minnehaha Cnty.

• Decision Date: 02 June 1894
• Citation: 59 N.W. 209,5 S.D. 447
• Parties: VAN ANTWERP v. DELL RAPIDS TOWNSHIP OF MINNEHAHA COUNTY.
• Court: South Dakota Supreme Court

5 S.D. 447

59 N.W. 209

VAN ANTWERP

v.DELL RAPIDS TOWNSHIP OF MINNEHAHA COUNTY.

Supreme Court of South Dakota.

June 2, 1894.

Syllabus by the Court.

Neither the town, nor the board of township supervisors, possesses the power of contracting for a resurvey of the highways of a township; and a contract so made is ultra vires, and cannot be enforced.

On rehearing.

For former report, see 53 N. W. 82.

CORSON, P. J.

This case was decided at a former term of this court, and the opinion will be found reported in 53 N. W. 82. A petition for a rehearing was granted, upon the application of appellant; and we have re-examined the question decided, viz. that neither the township nor the board of township supervisors possessed the power, as the law stood prior to 1890, to make the contract under which the plaintiff sought to recover in this action. This contract was alleged to be a contract to locate and survey the roads and highways in Dell Rapids township, for which the town, through its board, agreed to pay the plaintiff at the rate of $10 per day for making such survey. It was contended by the learned counsel for appellant, on the reargument, that this court, in its decision, relied upon certain sections of the statutes which are only applicable to counties in which there are no organized townships, and that the public highways in counties having organized townships are governed exclusively by the law of 1883. But we cannot agree with the counsel in this contention. The appellant, in our view of the law, attaches too much importance to the changes made in the highways laws by that act. In our opinion that law did not make the radical changes contended for by counsel. Section 1264, Comp. Laws, referred to by counsel, provides as follows: “The supervisors in the several towns in this territory shall have the care and superintendence of roads and bridges therein, shall give directions for the repairing of the roads and bridges in their respective towns, regulate roads already laid out and alter each of them as they or a majority of them deem proper, as hereinafter provided; divide the respective towns into so many road districts as they deem convenient, ***.” And section 1296 provides that “the supervisors of the town may alter or discontinue any road, or lay out any new road upon the petition of not less than six voters, ***.” And section 1300 provides that when such new road is laid out, or any old one altered, the county board, if it deem the same necessary, may require a survey to be made. These sections, however, relate exclusively to town roads, as, by section 1320 of the same act, it is provided “that county roads shall only be established, changed or vacated by order of the county commissioners.” Section 1263 provides that in certain cases therein mentioned the town board may order a survey to be made. And section 1311 authorizes the town board to lay out cartways, and to cause a survey to be made at the expense of the county. It will thus be seen that, when the town board is authorized to take any action in relation to the highways requiring surveys, express authority is conferred upon the town board to cause such survey to be made; but the legislature, while conferring upon the county commissioners express authority to cause resurveys of the highways to be made (section 1321), has not conferred upon township boards any such authority. This fact is both significant and important, as showing the intention of the lawmaking power. But authority is conferred upon the county commissioners, by the same act, to establish, change, and vacate county roads, upon a proper petition, Comp. Laws, § 1314. And all congressional section lines are made state roads. Id. §§ 1190, 1363. And section 1320, defining county and state roads, provides as follows: “Every road located by territorial or county authority is a county road, and shall only be changed or be vacated by order of the county commissioners, as provided for in this act.” And section 1321 provides as follows: “The county commissioners have general supervision of county roads, and have power to appropriate such sums *** as they may think advisable for opening, vacating, resurveying or otherwise improving such roads.” These sections are contained in the act of 1883, and from them we observe that all section line roads and roads laid out by order of the county commissioners are county roads, and can only be changed or vacated by order of such commissioners, and that such roads may be resurveyed by order of the county commissioners. What roads are then left to be laid out, changed, or discontinued by the township board? Certainly, only local town roads and cartways. When these are laid out or altered, a survey may be made, if deemed necessary, by the express provisions of the statute. As the...