Villages of Eden & Hazelton v. Idaho Board of Highway Directors , 83 Idaho 554 ( 1961 )

McQUADE, Justice

(concurring specially) .

I.C. sec. 40-121 envisions wide latitude in applying discretionary powers by the Highway Board. This statute designates a special duty of the Board, very general in terminology, which should lead to the conclusion that hearings should be held whenever any question concerning the abandonment, relocation, or replacement by a new road is to be considered by the Highway Board. The Legislature used general language toward the end that communities and areas affected by highway programing should have an opportunity to express themselves at a formal Highway Board hearing. Because of this legislative attempt, the statute must be given a very liberal' construction in its application by the Highway Board in providing hearings.

In part the statute provides:

“ * * * No highway serving or traversing any city or village shall he abandoned, relocated, or replaced by a new road serving the area in which such city or village is located without the board first holding a public hearing in such city or village. * * *”

This provision is a remedial amendment to the original act which created the present Highway Board, and such amendment must receive a liberal construction to effectuate its purposes. 82 C.J.S. Statutes § 388, p. 918.

The Legislature expressed a mandate that the Highway Board itself conduct these hearings. A hearing as provided by the statute cannot be considered sufficient when an agent of the Board gathers information without the Board members’ conducting the hearing. Where the duties of the Board are broad and general, agents may be used in carrying out their duties. However, where the statutory duty imposed expressly designates the Board to conduct the hearings, such as in this case, then the intended spirit of the law should be carried out.

This Court has said, in the case of Clayton v. Barnes, 52 Idaho 418, 16 P.2d 1056, 1058:

“ ‘In accordance with the maxim "expressio unius est exclusio alterius”, where a statute enumerates the things upon which it is to operate, or forbids certain things, it is to he construed as excluding from its effect all those not expressly mentioned; and where it directs the performance of certain things in a particular manner, or by a particular person, it implies that it shall not be done otherwise nor by a different person.’ 59 C.J. 984, § 582.”

See also 82 C.J.S. Statutes § 333, p. 666.

In other respects, I concur in the conclusion reached.