The facts sufficiently appear in the opinion. The petitioner brings mandamus to compel the respondent, the board of county commissioners of Esmeralda county, to execute a lease to the petitioner, granting the right to collect toll on the Walker Lake and Bodie toll road for a term of five years commencing on the 1st day of January, 1900.
It appears that in or about the year of 1882 the petitioner constructed said toll road under the provisions of our statute, and since that time has continuously operated the same.
On the 5th day of December, 1899, upon the request of the petitioner, the respondent made an order granting petitioner the right to collect tolls on said road for a term of five years, but subsequently rescinded the order, and refused to execute the lease upon demand.
Many questions have been discussed, but it is necessary to consider only one, and that involves the power of the board of county commissioners to execute the lease under the facts of this case. Whatever power the board has in this matter is given by Section 7 of the act of March 8, 1865, to provide for the construction of toll roads and bridges in this state, as amended February 13, 1877 (Comp. Laws, 459).
The section referred to reads as follows: "Upon the expiration or forfeiture of any toll road franchise granted under the provisions of this act, and in case of the expiration or forfeiture of any toll road franchise granted under the provisions of any other act, whether the same shall have already happened or may hereafter happen, the ownership of said road, with all the rights and privileges theretofore belonging to the same, shall vest in the county or counties in which said road shall be located; and whenever the same shall have *Page 240 happened or may hereafter happen, the county commissioners of the proper county may declare so much thereof as is within their county a free highway; provided, that in all cases falling within this section, the county commissioners of the proper county may give a lease at a nominal rental of any such road whereon tolls are now collected, either under the provisions of any act of the legislature of this state or by and with the consent of the county commissioners aforesaid, to the proprietors, their successors or assignees of such road, for a term of not to exceed five years, giving to such lessee the right to collect tolls on such road, subject, however, to all the provisions of this act; and upon the expiration or forfeiture of any such lease and whenever and as often as the same shall happen, the county commissioners of the proper county, if they deem it expedient, may give a new lease of such road upon the like terms and conditions, for a further period of not to exceed five years to the original or any other lessee, unless said road passes through two or more counties, in which case the original lessee or his assigns shall have preference."
This section, as originally enacted, reads as follows: "Upon the expiration, or forfeiture, of any toll road franchise, the ownership, with all the rights and privileges, shall vest in the county or counties in which it is located, and the county commissioners may declare it a free highway, or they may collect tolls on such roads to keep them in good repair; provided, the county commissioners may extend the time of any expired franchises, so as to allow the owners thereof to collect tolls thereon for five years, subject to all the provisions of this act." (Stats. 1864-5, p. 256.)
In 1875 this section was first amended, and as amended reads as follows: "Upon the expiration or forfeiture of any toll road franchise, granted under the provisions of this act, or any other act, the ownership of said road, with all the rights and privileges theretofore belonging to the same, shall vest in the county or counties in which said road shall be located; and whenever the same shall have happened, or shall happen, the county commissioners of the proper county may declare so much thereof as is within their county a free highway, or may collect tolls thereon, to be used in keeping *Page 241 it in repair, or may by resolution, extend the term of said franchise to the former proprietor of said road, or to his successors or assigns, for the term of five years from the date of such extension, with all the rights and privileges theretofore at any time belonging thereto, subject, however, to the general provisions of this act." (Stats. 1875, p. 156.)
The words "whereon tolls are now collected," found in the proviso of the section as amended in 1877, are not found in the section as it originally stood, or in the amendment of 1875; and the question arises as to what restrictive effect, if any, have these words upon the power of the board. It will be observed that under the provision of the section as it was originally passed the board was empowered to extend the time of any expired franchise granted under the act for a term of five years.
By the terms of the amendment of 1875 the extension which the board was authorized to grant was not limited to franchises granted under the act, but extended to franchises granted under other acts; and by it the board was also authorized to grant the extension not only to the owner, but to his successor or assigns.
From the language used it is evident that the amendment of 1877 was intended to work a radical change in the policy of the law regulating this matter.
It seems to us that the words of that amendment were intended to restrict and limit the power of the board to grant extensions to such roads only as were then in operation either under the provisions of the act or other acts, or under extensions granted by the board under the provisions of the amended section of 1875.
To hold otherwise would require that we disregard the restrictive language found in the amendment of 1877.
If the legislature had intended that the board should continue to exercise the power conferred by the original section, or by the amended section of 1875, in granting the extension of the franchise to roads constructed after the enactment of the amendment in 1877, it would not have restricted such power to roads "whereon tolls are now collected." These words would have been omitted, and by their omission the *Page 242 amendment would have been a grant of power claimed by the petitioner in this action.
Under the facts of this ease the statute confers no power upon the board to execute the lease, and the peremptory writ will therefore be denied. *Page 243