
    Uncapher v. Curl et al., Board of County Commrs. of Morrow County.
    
      Intercounty highways — Widening of existing highway by taking property of adjoining landowner — Section 1191 et seq., General Code — County commissioners must provide right of way and authorized to pay compensation — Section 1201, General Code.
    
    When in the construction of an intercounty highway by state aid under Section 1191 et seq., General Code, it becomes necessary to widen the existing highway by taking property of an adjoining landowner, the commissioners of the county in which such highway is located must provide the requisite right of way for such deviation from the boundaries of the existing highway, and are authorized by Section 1201, General Code, to pay “the owner or owners of such land or property as may be necessary for such change or alteration” the value of such land or property so taken.
    (No. 20316
    Decided June 1, 1927.)
    Error to the Court of Appeals of Morrow county.
    This is a proceeding in error to reverse the Court of Appeals of Morrow county. The original action was. brought by the plaintiff in error, seeking to recover from the defendants in error, the county commissioners, compensation for land and property taken for public purposes, to-wit, the construction of a public highway.
    The record discloses that in the year 1820 a state road 60 feet in width was laid out in Morrow county, passing the lands of the plaintiff in error; that in 1870 this road, by proper proceedings according to law, was narrowed to a width of 45 feet; that plaintiff in error and his predecessors in title had improved the strip of land thus vacated for road purposes, by planting fruit trees and erecting fences thereon; that in 1922 the county commissioners of Morrow county made application to the director of highways and public works for aid in the construction of certain sections of such state highway, in accordance with the provision of the state-; aid road laws, and that proceedings were had in connection with said application whereby the director of highways and public works, on or about September 17, 1923, entered into a contract covering the construction of sections of said highway adjacent to plaintiff in error’s lands; that pursuant to such contract, in accordance with its terms, the contractor entered upon the performance of his contract, and in such performance tore out the fence of plaintiff in error, cut down the trees, and occupied, for the purposes of said improvement, the full width of 30 feet from the center line of said highway on the side of and along plaintiff in error’s lands.
    It is conceded that such highway is a part of the state system of highways, being known as inter-county highway No. 206; that this portion of the highway is free from dangerous curves and sharp angles and steep grades, and is straight, the central line thereof being laid out on north and south section lines; and that in connection with the construction of the improvement referred to in the petition filed herein the road was widened to 60 feet throughout its entire length.
    The common pleas court found in favor of the plaintiff in error, and an agreed judgment, if there is any liability against the defendants in error, was stipulated to be $184; and for that amount the court of common pleas rendered judgment in favor of the plaintiff in error, together with his costs.
    Motion for new trial was overruled, judgment rendered upon the verdict, and error prosecuted to the Court of Appeals, which court reversed the judgment of the court of common pleas. Error is now prosecuted to this court to reverse such judgment.
    
      Mr. H. E. Hill, and Mr. T. B. Mateer, for plaintiff in error.
    
      Mr. Edward C. Turner, attorney general, Mr. G. H. Conaway, prosecuting attorney, and Mr. Grant E. Mouser, for defendants in error.
   Day, J.

The question for solution in this case is that of the construction to be given Section 1201, General Code. The same provides in part :

“If the line of the proposed improvement deviates from the existing highway, or if it is proposed to change the channel of any stream in the vicinity of such improvement, the county commissioners, or township trustees making application for such improvement must provide the requisite right of way.”

Are the commissioners authorized to make compensation for this property, taken for public purposes by the authority of the section in question, requiring the county commissioners to “provide the requisite right of way” for such an improvement?

It is elementary that if a construction can be given a statute which renders it constitutional, rather than unconstitutional, the former construction is to be favored. The Constitution of this state, Section 19, Article I, provides:

“Private property shall ever be held inviolate but subservient to the public welfare. * * * And in all other cases, where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money, and such compensation shall be assessed by a jury, without deduction for benefit to any property of the owner.”

We do not understand that any question is raised as to the regularity of the proceedings in the narrowing of the road in 1870, or as to the proportion of the highway, formerly in the 60 feet, that became the property of the plaintiff in error and his predecessors in title by the reduction in the width of the public highway to 45 feet in 1870 (Arbaugh v. B. & O. S. W. Rd. Co., 104 Ohio St., 110, 135 N. E., 381), but the sole contention is that there is no authority in law for the county commissioners to be held liable for compensation for this property of the plaintiff in error taken for public purposes; the jurisdiction and control of the road in question having passed to the state highway department by reason of Section 1191 et seq., General Code.

Under the construction that we give Section 1201, General Code, it should not be confined to simply the straightening of curves and the changing of the line around hills or other obstructions; but the intent of the Legislature was to require the county commissioners to provide the requisite right of way for the proposed improvement if additional land outside the existing highway was . required to complete such improvement. Whenever the boundaries of the existing highway were departed from, that was a deviation from such highway, in a broad and liberal sense of the word, and to give it any more restricted meaning and confine the word “deviate” to a change in the line of the road for the purposes of eliminating curves, angles, or grades is to give the section too narrow a construction. If such a construction is given as does not permit paying compensation for property taken in placing the line of the proposed improvement at some other point outside the existing highway, and property is so taken without compensation, there is clearly a violation of a constitutional right.

It is our duty to attribute to the Legislature an intention to enact a valid and constitutional law, and to give such construction to its enactments as will not be inconsistent with constitutional guaranty. Our conclusion, therefore, is that under Section 1201, General Code, power is granted to the commissioners in providing a requisite right of way for the improvement in question to make proper compensation to the owner of private property taken for such public purpose. We are not unmindful of the rule that a board of county commissioners is not liable for its acts “in * * * discharge of its official duties, except in so far as such liability is created by statute, and such liability shall not be extended beyond the clear import of the terms of the statutes.” Weiher v. Phillips, 103 Ohio St., 249, 133 N. E., 67.

Our conclusion does not conflict with the above rule, for the authority to acquire this right of way and to pay therefor is clearly within the import of the terms of the statute. Entertaining this view, the judgment of the Court of Appeals is reversed and that of the common pleas is affirmed.

Judgment reversed and that of the common pleas affirmed.

Marshall, C. J., Allen, Robinson, Jones and Matthias, JJ., concur.  