The following opinion was filed at the January term, 1873.
Cole, J.A motion was made to dismiss the appeal in this case; and, although that motion has already been decided, yet no opinion has been filed indicating the view we took of the questions raised by it. The point is deemed of sufficient importance to justify a few remarks before we proceed to consider the case upon the merits.
The action is brought to recover' the penalty given by the statute for the willful obstruction of a public highway. Sec. 101, ch. 19, R S.; also sec. 101, ch. 152, Laws of 1869. On the trial the verdict was for the defendant; and the state has brought the case to this court to review exceptions taken to the rulings of the court below. And the objection is, that the action is criminal in its nature, and that the state is not entitled to an appeal or writ of error in such an action.
We think, however, that counsel are. mistaken in supposing that this is a criminal proceeding within the meaning of that clause of the constitution which provides that “ no person for *669the same offense shall be put twice in jeopardy of punishment.” This action to recover a penalty imposed by statute for the willful obstruction of a highway more properly falls within the definition of a civil action. Sec. 1, ch. 155, R. S., enacts that in all cases not otherwise specially provided for by law, where a penalty or forfeiture shall be incurred by any person, and the act or omission for which the same is imposed shall not also be a misdemeanor, such penalty or forfeiture may be sued for and recovered in a civil action. The next section provides that such action, unless otherwise directed, shall be brought in the name of the state, and shall be conducted and prosecuted in the same manner as personal actions, and shall be subject to all the provisions of law concerning personal actions which are not repugnant to the provisions of that chapter. And section eight defines a misdemeanor for the purposes of that statute to be an act or omission punishable according to law, or in the discretion of the court, by a fine, penalty or forfeiture, and imprisonment. The act of a willful obstruction of a public highway subjects the offender to a penalty alone, and not to both, penalty and imprisonment. This we deem conclusive under our statute, regardless of the question whether the act of willfully obstructing a public highway was a misdemeanor at common law' or not. The statute has made this proceeding a civil action, and the provisions of law concerning personal actions apply to it. The state had the right to take an appeal, as it did do.
The other question arising upon this record is one of more embarrassment, owing to the want of a well digested statute in regard to public highways and the powers of town boards of supervisors in respect to them. In the case before us the supervisors of the town of Platteville made an order altering, within certain limits, a highway laid out by commissioners in 1838, under an act of the territorial legislature, from Osceola to Belmont. And it is for placing obstructions in the old road where this alteration was made, that the defendant is *670prosecuted. The counsel for the state contends that the town board had no authority to alter a state or territorial road, but were - absolutely prohibited from doing so by section 90, ch. 152, Laws of 1869. By that section power was conferred upon the county board of supervisors of any county through which any state road should pass, to alter the same within the limits of their county in the same manner they were authorized to alter county roads, but with the limitation that they should not discontinue any such road unless the same should lie wholly within the county. And then follows this language : “ Town boards of supervisors are hereby prohibited from altering, changing, vacating or discontinuing any and all state roads.”
Now it is said by the counsel for the plaintiff, that the words “all state roads,” as used in this provision,refer to and include not only those highways which were laid out and established by the state since the formation of the state government, but also all the roads which were laid out as territorial roads, and therefore the prohibition upon the town board applies in all cases.
We should have no serious difficulty in sustaining this view of the matter were this the only provision of the statute bearing upon the question; but it is not. On the contrary, the legislature seem, in the enactments upon the subject, to make a distinction between state roads and territorial roads. This, we think, will be apparent upon.-a careful examination of the various provisions of the statute Where these two classes of highways are recognized. It- may not be' easy to assign any satisfactory reason for the distinction, and for giving the town board power to alter a territorial--road within certain limits, while expressly prohibiting them from changing a state road in any case. But such seemg to be the condition of the statutory law. The law of 1869 professes to be a codification of the statutes relating; to highways, and in most particulars supersedes the former statute. But it does not entirely do away with previous provisions. For instance, section 90, ch. 19, R. S., re*671mains, as we -understand', in full force so far as territorial roads are concerned. In respect to that class of highways it is only contended that the power of the town board over them is taken away by necessary implication, because, as was just observed, the words “state roads,” in the law of 1869, included all territorial roads. But we think that construction inadmissible, in view of the. fact that the legislature have enumerated both territorial and state roads (see sec. 89, ch. 152) in the statutes — a thing they would hardly have done had the intention been to include both classes of roads under one term. We therefore conclude that the power of-the town board over territorial roads, as conferred by section 90, ch. 19, E. S., still remains. And this being so, how does it affect this case ? Here the town board attempted to alter a territorial road which extended from Osceola to Belmont. This they had no power to do, since this section only-authorized them to alter such a road when -it lay “ wholly within such toion." It is said by the counsel for the defendant, that this language was not intended to restrict the power of the town board to the alteration of a territorial road which- should lie wholly within the town — in other words, to a road -which should begin and end within the town limits, but that it refers to roads laid on town lines, which lie partly in one town and partly in another. But the plain intent of the statute is, as gathered from the -other provisions, to require that a highway laid upon the line between .two towns should only be changed by the concurrent action of the supervisors of .each of such towns, and therefore we do not think the language above quoted applies to that class of highways. Plainly the statute gives the supervisors of the town through which any territorial road shall pass, when -such road, lies vjholly within such town,” the power to alter the same. This is the obvious meaning of the language employed by the legislature.
The court below assumed, and so in effect instructed the jury, that the supervisors of the town of Platteville had authority to alter this road. In this we think there was error.
*672By the Court — The judgment of tbe circuit court is reversed, and a new trial ordered.
On a motion for a rehearing, the defendant’s counsel cited the title of ch. 152, Laws of 1869 (“An act to codify the laws of this state relating to highways and bridges ”), and argued both from this title (Conn. Ins. Co. v. Albert, 39 Mo., 181; Jackson v. Gilbert, 15 Johns., 89, 116; Crespigny v. Wittenoom, 4 Term, 793; Supervisors of Niagara v. People, 7 Hill, 511; Bac. Abr., tit. “ Statutes;" Dwarris on Stat., *654), and also from a comparison of the act with ch. 19, R. S., and the subsequent statutes relating to the same subject prior to 1869, that the act of 1869 was intended as a complete revision and codification of all the laws of this state relating to highways and bridges, and should be regarded as virtually repealing ch. 19, R. S. Sedgw. on Stat. & Con. Law, 126; Bartlett v. King, 12 Mass., 563; Comm. v. Marshall, 11 Pick., 350-1; Ellis v. Paige, 1 id., 45; Constantine v. Van Winkle, 6 Hill, 184-5; Burlander v. R. R. Co., 26 Wis., 76, 77; Buck v. Shofford, 31 Me., 134; Ill. & Mich. Canal Co. v. Chicago, 14 Ill., 334; Goddard v. Boston, 20 Pick., 410; Nichols v. Squire, 5 id., 168; Comm. v. Cooley, 10 id., 39. 2. They also argued further from the phraseology of sec. 90, ch. 19, R. S., that the words “when such road lies wholly within such town ” can only be understood of a road not located upon a town line, but whose whole breadth is within the town “through which” it “shall pass;” the supervisors being authorized in that case “ to alter the same within their town ” — an expression which cannot be supposed to have been used of a road whose whole length was within such town.
The appeal was finally disposed of at the June term, 1873.
LyoN, J.There are two theories of this case, which lead to the same result, although they are not consistent with each other. One is that adopted by the court, to the effect that the law of 1869 (ch. 152) does not operate as a repeal of section *67390, cb. 19, R. S., but leaves tbe restrictions therein contained on the powers of town supervisors over territorial roads still in force. The other is, that the term “ state road,” as used in sections 90 and 97 of the law of 1869, is there used in a generic sense, and includes roads laid out and established by the direct action of the territorial as well as of the state legislature.
When this cause was first considered, I was strongly inclined to think that the latter is the true theory; and a further consideration of the case on this motion has confirmed me in that view. I can see no good reason why the town supervisors should be vested with powers over roads established by the territorial legislature, which they are prohibited from exercising over roads of the same character established by the state legislature. If the town supervisors may not interfere with a road from A. to B. established by the legislature of 1849, why should they be permitted to interfere with a road between the same points established by the legislature of 1847 ? The reasons for the restriction upon the powers of the town authorities are the same in either case, and I cannot think that the law of 1869 contemplates that there shall be a restriction upon such powers in one case and none in the other.
In my opinion it accords best with sound rules of statutory construction, to hold that the term “ state road,” as used in that law, includes all roads established by the legislature without the intervention of county or town authority, whether the same were established before or since we became a state. The use of the term “ territorial road ” in sec. 89 of the law of 1869, it seems to me, is too slight a circumstance to justify us in so construing the statute as to defeat its plain and obvious purpose and intention.
Entertaining these views, I am prepared to admit that sec. 90 of ch. 19 of the revised statutes is repealed by the act of 1869, in so far as the two statutes are in conflict, and that the former opinion is, in that respect, erroneous. But, for reasons already stated, such error (if it be an error) does not change the result.
*674I think that the case was correctly decided, and that the motion lor a rehearing should be denied.
By the Gourt. — Motion denied.