(dissenting). This action was instituted to restrain the defendants from obstructing certain alleged highways in Sully county. The decision below was in favor of the plaintiffs, judgment was entered perpetually enjoining the defendants from maintaining fences or other obstructions across the public highways upon certain described section lines, and they appealed from the judgment and an order denying their application for a new trial.
It is alleged in the complaint, and found by the court, in substance, that the board of county commissioners at a regular meeting duly and regularly declared the section-lines in question practicable and necessary for highway purposes, and declared the same to be highways. It appears that the commissioners, acting on a petition purporting to have been signed by “172 residents and voters” praying for the opening of public highways on all section lines in the county, a petition purporting to have been signed by “111 residents and voters” protesting against the opening of such section lines as highways, and the reports of two committees composed of members of the board to whom the matter was referred, adopted the following resolution: “That all section lines reported as practicable for use as public highways by each commit*588tee be and are hereby established as public highways.” Defendants contend that the board was without jurisdiction to make this order, while plaintiffs contend that .the highways existed by operation of law, action by the commissioners being unnecessary. Thus is presented an important question not heretofore determined by this court, the solution of which requires the construction of the following statutory provisions relating to highways: “All section lines shall be and are hereby declared public highways as far as practicable; provided, that nothing in this article shall be so construed as to interfere with existing highways in the settled portions of the state.” Rev. Pol. Code, § 1594. “The board of county commissioners of each county shall have power to vacate or change the highways within their respective counties located by the legislative assembly as hereinafter provided.” Id. § 1595. “The board of county commissioners has power to- establish, change and vacate highways upon section and quarter section lines when the initial and terminal points and the course of the highway can be clearly described, without the appointment of viewers or the services of a surveyor; but in all other respects the proceedings therein shall be governed by the provisions of the preceding article relating to the establishment, vacation and change of highways not on such lines.” Id. § 1623.
In 1866 Congress declared: “The right of way for the construction of highways over public lands, not reserved for public use, is hereby granted.” Rev. St. U. S. § 2477 [U. S. Comp. St. 1901, p. 1567]. During the first 10 sessions of the territorial Legislature numerous highways, termed “territorial roads,” were located or established b)r as many special acts of that bod)»'. At its first session the territorial Legislature conferred power upon county commissioners to locate county roads. Laws 1862, p. 483, c. 71- In 1867 chapter 71. p. 438, Laws 1862, was repealed by an act which gave the commissioners power to lay out and open roads through improved fields in organized counties. Laws 1866-67, P- L c- !• In !868 an act was passed providing for the opening, vacating, and changing, by county commissioners, of highways running into more than one county, which also> contained “general provisions concerning highways.” Laws 1867-68, p. 132, *589c. 13. An act supplementary to this was passed in 1868, which gave the board of county commissioners power to locate and establish highways “on a section or quarter line, when the initial and terminating points can be clearly described, without the appointing of viewers or services of a surveyor, upon a petition of twelve free-holders or bona fide claimants of the county, six of whom shall reside in the immediate neighborhood of the highways proposed to be located.” Laws 1868-69, P- r99> - 9- At the following session it was enacted: “That hereafter all section lines in this territory shall be and are hereby declared public highways as far as practicable; provided, that nothing in this act shall be so construed as to interfere with existing highways in the settled portions of the territory.” Laws 1870-71, p. 519, c. 33. In 1877 these and other acts relating to highways were carried into the Revised Political Code, Rev. Pol. Code 1877, p. 141, c. 29. Since that time the provisions applicable to* the case at bar have continued in force without substantial change. Rev. Pol. Code, §§ 1594-1642. Notwithstanding the act declaring all section lines to be ‘public highways as far as practicable” was passed after the one authorizing county commissioners “to- establish, change and vacate highways upon section and quarter section lines-,” both provisions having been re-enacted in the Revisions of 1877 and 1903, they must, for the purposes of construction, be deemed to have been passed on the same day and as parts of the same statute. Rev. Codes 1877, p. 940, § 16; Laws 1903, p. 270, c. 205, § 2; Roberts v. Parker, 14 S. D. 323, 85 N. W. 591; Coler v. Sterling, 15 S. D. 415, 89 N. W. 1022. “In the construction of a statute every part of it must be viewed in connection with the whole -so as to make all its parts harmonize, if practicable, and give a sensible and intelligent effect to each. It is not to be presumed that the Legislature intended that an)'- part of an enactment should be without meaning.” Quebec Bank v. Carroll, 1 S. D. 1, 44 N. W. 723. If, as contended by the plaintiffs, it was intended that all section lines should be public highways, without any action on the part of local authorities, the Legislature should not have inserted the qualifying clause “as far as practicable”; nor should it have given the commissioners power to establish highways upon section lines. *590How and by whom shall the question of practicability be determined? Why should commissioners have power to- establish highways where they already exist ? Manifestly, if effect is to be given all the1 terms of the statute, the clause declaring all section lines to be highways, and the word “establish,” so far as it relates to section line highways, must each receive a restricted meaning. To establish may mean “to institute; to create and regulate”; or it may mean “to secure public recognition in favor of, to prove and cause to be accepted as true.” Webster Int. Diet. So it does no-violence to the language of the statute to hold that action by the commissioners may be required to determine the practicability and to secure public recognition of section lines as highways. Undoubtedly the public is entitled to appropriate 33 feet of land on each side of all section lines for highway purposes, without compensation to owners of land, the title to which was acquired from -the general government subsequently to the congressional grant of 1866. Riverside Twp. v. Newton, 11 S. D. 120, 75 N. W. 899; Weils v. Pennington County, 2 S. D. 1, 48 N. W. 305. And it may be that the mere use of any section line as a public highway would be sufficient to complete its establishment as such. But it seems to me there is no escape from the conclusion that section lines are not established highways in the absence of any action on the part of the public to secure recognition of its rights. In the case at bar no question of usage arises, and it will be assumed that the alleged highways were all in territory not organized into civil townships. One cannot obstruct highways which do not exist. The burden was on the plaintiffs to- prove -the existence of lawfully established highways. Whether they succeeded depends on the effect to be given the action of the commissioners. Their proceedings were governed by the provisions of the. articles relating to highways not on section lines, except as to the appointment of viewers and the services of a surveyor. Rev. Pol. Code, § 1623. That article requires : (1) A petition to the board of county commissioners, signed by not less than “12 freeholders of the county, six of whom shall reside in the immediate neighborhood” of the highway sought to be established; and (2) notice of such petition by publication for three successive weeks in a newspaper pub-' *591lished in the county, or by posting in three of the most public places in the neighborhood of the proposed highway, at least 20 days before the meeting of the board at which the petition is presented. Id. § 16x1. In resisting a collateral attack, of course, the plaintiffs were only required to establish such facts as were essential to the jurisdiction of the board, namely, the presentation of a sufficient petition and the giving of the required notice. The law does not require that the petition shall show on its face ■that it is signed by 12 freeholders of the county, 6 of 'whom reside in the immediate neighborhood of the proposed highway, though it should do so; but it does require the existence of those facts before the board is authorized to act, and its records should disclose a finding to that effect. In this case the recitals of the record correspond with the recitals of the petition, and it is doubtful whether such recitals do not negative any presumption in favor of the validity of the proceedings arising from the mere granting of the petition. On that question I express no opinion. If, however, my construction of the statute be correct, plaintiffs failed to establish the jurisdiction of the board by failing so fajas the record on this appeal discloses, to prove the- giving of any notice, whatever, and, the board being without jurisdiction, its order was a nullity. Meek v. Meade County, 12 S. D. 162, 80 N. W. 182; Beatty v. Beethe, 23 Neb. 210, 36 N. W. 494; Hughes v. Milligan, 42 Kan. 396, 22 Pac. 313.
The decision of the circuit court not being sustained by the evidence in this essential particular, I think the judgment and order appealed from should be reversed.