(dissenting). — I am constrained to dissent from the reasoning and conclusions of the foregoing opinion. I will content myself with stating briefly my own conclusions, without attempting to state at length the reasons upon which I base them.
A road established in pursuance of chapter 127 of the Laws of 1866, in my opinion, is a public road, and differs, in its use and the right of the public thereto, in no respect from highways recognized by law and denominated, in the opinion of the chief justice, public roads. The public possess the same right to use it as a road established in any other manner authorized by law. The party upon whose petition it is established has no exclusive right thereto. It differs from other roads only in the manner which the law directs shall be pursued to establish it.
This difference in no way indicates, that it is not, in fact, a public way. There is not one word in the act under which it is established which prohibits the public from using it, or gives the petitioner exclusive control over it. The reasons for holding it to be a private road, drawn from the body of the act, if they sustain such a conclusion, will, it seems to me, warrant a like conclusion in regard to roads, established under other enactments, that are confessedly public. It is established upon the petition of one citizen; so may public roads be established under *551other provisions of the statutes. The citizen petitioning for it must pay the costs and damages attending its location. The same fact is true of some other public roads. Tiie supervisors may prescribe conditions in relation to fencing it, and it is claimed, that this implies the right to permit gates to be erected thereon. If this be so, can it be deemed that the legislature could not permit gates to be erected upon public ways ? Heretofore, the legislature has not seen fit so to do, but the power cannot be questioned.
The fact, that, in the title of the act, the word “ private ” is used, to my mind gives no strength to the argument in support of the conclusion that the road is private, or for the benefit of the petitioner, and subject to his control. This word is used simply to indicate the manner of its establishment. It by no means indicates, that it is owned or controlled by a private citizen. Our statutes denominate certain highways “ State roads ” and “ county roads,” and, at one time, roads were established by the township trustees which were termed “ township roads.” These names simply indicate that the different roads were established in different ways, and not that they are under the control of the State, county or township.
It is certainly in no manner incomprehensible that a private citizen should procure the establishment of a road, and that it should be termed a private road, yet be used by the public generally. It cannot be argued, that the mere use of the term “ private,” in the title of the act, without one word of limitation in the body thereof, or any provision that the road established thereunder is a private way, will, of itself, determine that the road is under the control of, owned by, and established for the sole use of, the party who petitions for its establishment. Whether these views be conclusive or not, it must be admitted, that, at least, they throw great doubt on the *552conclusion upon this point arrived at by my brothers as expressed by the chief justice. They are supported by the following authorities: Metcalf v. Bingham, 3 N. H. 461; Proctor v. Andover, 42 id. 351; Clark v. B. C. & M. Railroad, 24 Foster, 118; Perrine v. Farr, 2 Zab. 362; Hickman's case, 4 Harrington, 580; McCauly v. Dunlop, 4 B. Monroe, 57; Ferris et al. v. Bramble, 5 Ohio St. 109.
Courts will annul statutes, by declaring them in conflict with the Constitution, only in cases where there is absence of all well founded doubts. The conflict must be clear, and. the judicial mind must be free from all uncertainty and hesitation upon the question. Neither will courts put such a construction upon a statute, that will bring it in conflict with the Constitution, but will, if it be capable of two constructions, one in conflict, the other in harmony, with that instrument, adopt that one which will support the statute, presuming that the legislature intended the enactment to be in harmony with the fundamental and paramount law. The statute in question, I am fully convinced, authorizes the establishment of public roads. But, if such a construction be even doubtful, it should be adopted in order to uphold the law. The contrary construction should be discarded,.for it is, to say the least, doubtful both upon precedent and reason. I am therefore not prepared in this case to assent to the exercise by this court of its highest power, the annuling of an act of the supreme legislative power of the State.
It is contended, that, under the statutes existing at the time of the enactment of the law in question, the road could have been established, if it be a public road, and that this fact is an argument to sustain the proposition that the legislature intended the act to provide for the establishment of private ways. I am unable to perceive the foi’ce of this argument. Certainly, it is perfectly *553competent for the legislature to provide more than one way to establish a public road. The law making power often provides several remedies or ways of relief for the people for wrongs or oppressions they may suffer. The necessity or policy of such laws it is not for the courts to doubt. The power is possessed, and, when exercised, must be submitted to by the citizens and courts.
The road in question being, in my opinion, a public road, no appeal from the order of the supervisors establishing it can be taken to the District Court; that court, therefore, acquired no jurisdiction of this cause. McCune v. Swofford, 5 Iowa, 552; Myers v. Simms, 4 id. 500; Ball v. Humphrey, 4 G. Greene, 204; Lippencott v. Allander, 23 Iowa, 536.
I am therefore of the opinion, that the judgment of the District Court should be affirmed.