McBRIDE, C. J.
1, 2. We are of the opinion that the saving clause above mentioned is broad enough to cover the proceeding at Bar, and that the intent of the legislature was to preserve from destruction all pending proceedings for the establishment of county roads. The petition may fairly be construed to be a request, in legal form, to the County Court to cause the machinery of the law to be set in motion to lay out a county road and, if necessary, to condemn land for that purpose. The petitioners do not technically institute the proceedings, but request the County Court to do so. After such petition, with proof of notice, is filed, the county becomes the active party and may fairly be said to institute all the proceedings, as between itself and the parties over whose land the proposed road is to pass. It is a rule of statutory construction, as well as of sound public policy and justice, that unless there is shown a clear intent to the contrary, statutes should not be construed retrospectively, or so as to interfere with judicial proceedings then pending: Lewis’ Sutherland on Stat. Cons., § 238. This rule, we must assume, was known to the legislature when the act of 1917 was adopted. The legislators must have known and appreciated the fact that, as a matter of course, many unfinished road proceedings were pending in the counties of this state, and it is unthinkable that it was the legislative intent to ruthlessly deprive the County Courts of the jurisdiction to complete these and to require the whole proceedings to be begun over again. The savings clause, while crudely drawn, was no doubt intended to preserve the [561]*561jurisdiction to complete the proceedings already begun under the old law.
3. The new law, while preserving the jurisdiction, provided a new procedure for its exercise. The .jurisdiction, being preserved, the County Court, after May 20th, had a choice of procedure. If necessary, it could follow the "previous law; hut if the procedure under the new law was deemed more convenient at the particular stage to which the proceeding had gone, there is no reason in the world why it should not be employed. The latter procedure was chosen in this case and if it has been substantially followed, the road has been lawfully located: Drainage Dist. v. Bernards, 89 Or. 539, 555 (174 Pac. 1167).
4. It is objected that the proof of posting notices of the proposed road is insufficient because the affidavit states, among other things, that one copy of the notice was posted in a public and conspicuous place “near the center of the proposed road.’1’ It is contended that the affidavit is indefinite in that the term “near” is merely a relative term and, in the connection used, does not locate any particular point. The center of a road would be a point in the middle of the road, equidistant from the termini. The proposed road, not having been surveyed, it was of course impossible to locate such point with mathematical exactness. The affidavit further shows that the place where the notice was posted was in the “vicinity of the proposed road and in a public place.” The finding of the court is, that “the notices were posted in three public and conspicuous places in the vicinity of said road and one on the bulletin-board at the Douglas County courthouse.” We think this complies with the requirements of the law, as laid down in the later decisions, and particularly with Latimer v. Tillamook County, 22 Or. 291 [562]*562(29 Pac. 734); Cameron v. Wasco Co., 27 Or. 318, 324 (41 Pac. 160). In the latter case there was no averment in the affidavit that the places where the notices were posted were public places, nor any finding to that effect by the court. In an opinion sustaining a writ of review, Justice Moore said:
“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]*563tendency is now to limit their doctrines, or at least to see that they are not extended.”
5. It is claimed that the court lost jurisdiction because the report was not filed on the day prescribed in the order, namely: June 5, 1917. June 5th was the day of the general primary election and was a public holiday by proclamation of the Governor. It being impossible to file the report on that day, we think a filing on the next day was sufficient. Whether it was filed before or after court convened, does not appear. McMillan v. Mason, 70 Or. 133 (140 Pac. 446), is cited as sustaining plaintiffs’ contention. In that case the viewers allowed three months and two'terms of court to pass before filing their report. And there was no sufficient affidavit or finding by the court to show a compliance with the law in regard to posting. Justice Mooke held the proceedings void for this reason, and by way of dictum, remarked in substance: “It is believed” that a proper construction of the statute required the viewers to make and file their report before the commencement of the next term of court. The question was not necessarily involved and the conditions were different from those existing in this case, where the intervention of a holiday rendered it impossible to file the report upon the return day.
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.
[564]*5646, 7.
Free access — add to your briefcase to read the full text and ask questions with AI
McBRIDE, C. J.
1, 2. We are of the opinion that the saving clause above mentioned is broad enough to cover the proceeding at Bar, and that the intent of the legislature was to preserve from destruction all pending proceedings for the establishment of county roads. The petition may fairly be construed to be a request, in legal form, to the County Court to cause the machinery of the law to be set in motion to lay out a county road and, if necessary, to condemn land for that purpose. The petitioners do not technically institute the proceedings, but request the County Court to do so. After such petition, with proof of notice, is filed, the county becomes the active party and may fairly be said to institute all the proceedings, as between itself and the parties over whose land the proposed road is to pass. It is a rule of statutory construction, as well as of sound public policy and justice, that unless there is shown a clear intent to the contrary, statutes should not be construed retrospectively, or so as to interfere with judicial proceedings then pending: Lewis’ Sutherland on Stat. Cons., § 238. This rule, we must assume, was known to the legislature when the act of 1917 was adopted. The legislators must have known and appreciated the fact that, as a matter of course, many unfinished road proceedings were pending in the counties of this state, and it is unthinkable that it was the legislative intent to ruthlessly deprive the County Courts of the jurisdiction to complete these and to require the whole proceedings to be begun over again. The savings clause, while crudely drawn, was no doubt intended to preserve the [561]*561jurisdiction to complete the proceedings already begun under the old law.
3. The new law, while preserving the jurisdiction, provided a new procedure for its exercise. The .jurisdiction, being preserved, the County Court, after May 20th, had a choice of procedure. If necessary, it could follow the "previous law; hut if the procedure under the new law was deemed more convenient at the particular stage to which the proceeding had gone, there is no reason in the world why it should not be employed. The latter procedure was chosen in this case and if it has been substantially followed, the road has been lawfully located: Drainage Dist. v. Bernards, 89 Or. 539, 555 (174 Pac. 1167).
4. It is objected that the proof of posting notices of the proposed road is insufficient because the affidavit states, among other things, that one copy of the notice was posted in a public and conspicuous place “near the center of the proposed road.’1’ It is contended that the affidavit is indefinite in that the term “near” is merely a relative term and, in the connection used, does not locate any particular point. The center of a road would be a point in the middle of the road, equidistant from the termini. The proposed road, not having been surveyed, it was of course impossible to locate such point with mathematical exactness. The affidavit further shows that the place where the notice was posted was in the “vicinity of the proposed road and in a public place.” The finding of the court is, that “the notices were posted in three public and conspicuous places in the vicinity of said road and one on the bulletin-board at the Douglas County courthouse.” We think this complies with the requirements of the law, as laid down in the later decisions, and particularly with Latimer v. Tillamook County, 22 Or. 291 [562]*562(29 Pac. 734); Cameron v. Wasco Co., 27 Or. 318, 324 (41 Pac. 160). In the latter case there was no averment in the affidavit that the places where the notices were posted were public places, nor any finding to that effect by the court. In an opinion sustaining a writ of review, Justice Moore said:
“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]*563tendency is now to limit their doctrines, or at least to see that they are not extended.”
5. It is claimed that the court lost jurisdiction because the report was not filed on the day prescribed in the order, namely: June 5, 1917. June 5th was the day of the general primary election and was a public holiday by proclamation of the Governor. It being impossible to file the report on that day, we think a filing on the next day was sufficient. Whether it was filed before or after court convened, does not appear. McMillan v. Mason, 70 Or. 133 (140 Pac. 446), is cited as sustaining plaintiffs’ contention. In that case the viewers allowed three months and two'terms of court to pass before filing their report. And there was no sufficient affidavit or finding by the court to show a compliance with the law in regard to posting. Justice Mooke held the proceedings void for this reason, and by way of dictum, remarked in substance: “It is believed” that a proper construction of the statute required the viewers to make and file their report before the commencement of the next term of court. The question was not necessarily involved and the conditions were different from those existing in this case, where the intervention of a holiday rendered it impossible to file the report upon the return day.
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.
[564]*5646, 7. The preliminary report of the viewers and surveyor seems substantially to comply with the Laws of 1917. The field-notes show the beginning point and terminus of the road and every angle, direction and distance between the point of beginning and the terminus. This shows the thread of the road which is all that the Law of 1917 requires, before directing its permanent location and declaring it a public road. The placing of permanent monuments, milestones, etc., is a matter of detail to be attended to later, and is not necessary to constitute the road a public highway. The failure to make a final survey and monument the road does not render the order establishing it void. If that work is unduly delayed by the surveyor, the County Court, or perhaps any citizen interested, may bring appropriate proceedings to compel him to perform his duty, but such failure cannot be urged upon a review of the proceedings relative to the location and establishment of the road. While a reference thereto is probably not required here, it is proper, in view of the importance of the subject, to say that the right to review the proceedings is not waived by an appeal from the assessment of damages.
8. It is also contended that there is no sufficient showing that the viewers qualified, as required by law,. The report of the viewers states that before commencing their labors they took an oath to faithfully and impartially discharge the duties of their appointment. According to the weight of authority such a recital in the report is sufficient: Husted v. Town of Greenwich, 11 Conn. 383; Wood v. Campbell, 14 B. Mon. (Ky.) 422; Town of Huntington v. Birch, 12 Conn. 142; Dollarhide v. Board of Commissioners of Muscatine Co., 1 Greene (Iowa), 158. The latter case intimates that even if there had been no mention of the fact in [565]*565the report, the presumption would haVe been that the viewers complied with the law and took the necessary oath of office before entering upon their duties.
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.
Burnett, Benson and Harris, JJ., concur.'