Commissioners of Polk County v. Mayor of Cedarton

Cobb, J. The Mayor and Council of the City of Cedar-town filed their petition praying that the writ of mandamus might issue to require the county commissioners of Polk county to repair, and', if necessary, rebuild a bridge which had been constructed under the direction of the county authorities. The petition set forth, in substance, the folio-wing: In 1889 the county commissioners ordered that a named person should proceed as early as practicable to purchase material to build a bridge across a named stream. In pursuance of this order the bridge was built at the county’s expense, and was kept in repair by the county authorities for a number of years. At this time the road of which the bridge formed a part was not within the corporate limits of the City of Oedartown. After the building of the bridge the limits of the city were extended so as to embrace within the same the bridge in question. On September 19, 1898, the county commissioners passed the following order: “Ordered that the authorities of Polk County relinquish all jurisdiction or control of all the bridges or causeways inside the incorporate limits of Oedartown and Rockmart, and will not be responsible for any damages to the public caused by any bridges or causeways inside of said incorporate limits. ” In 1899, the bridge being out of repair, the city authorities requested the county authorities to repair the same, and notified [825] them that the city did not claim tbe right to exercise any jurisdiction over tbe bridge. Tbe county authorities declined to repair tbe bridge, giving as a reason that tbe same was within tbe corporate limits of tbe Oity of Cedartown. The answer •of tbe respondents was, substantially, as follows: They admitted that tbe bridge bad been built by tbe county authorities, but alleged that since tbe same bad been taken within the limits of tbe city tbe county authorities bad neither made nor authorized to be made any repairs on tbe bridge, recognizing that, after tbe limits of tbe city bad been extended so as to embrace tbe bridge, tbe same passed under tbe jurisdiction and •control of tbe city. Tbe order referred to in tbe petition was passed at a regular meeting of tbe county commissioners. Tbe case came on to be beard, and a judgment was rendered making tbe mandamus absolute and requiring tbe respondents to keep tbe bridge in repair, and, when necessary, to rebuild tbe same; the judgment reciting that there was no issue of fact involved in tbe case. To this judgment tbe respondents excepted. Tbe moment that tbe charter of tbe City of Cedartown was •so amended as to embrace within the limits of that corporation that portion of tbe public road of which tbe bridge in question formed a part, tbe jurisdiction of tbe county over this part of tbe highway ceased, and the same became subject to tbe control .and jurisdiction of tbe municipal authorities. See Almand v. St. Ry. Co., 108 Ga. 417, and authorities there cited. Consequently, tbe duty of tbe municipal authorities to keep in repair the bridge in question arose as soon as it became a part of one of tbe streets of the city, and tbe county was no longer under any ■duty in respect thereof. Such being tbe case, no order or proceeding of any character was necessary in order to relieve tbe county authorities of tbe obligation to keep tbe bridge in repair. Especially would tbe county authorities no longer be under any obligation to keep tbe bridge in repair, when it affirmatively appears that since the same has become a park of one of tbe streets of the city they have never undertaken to repair the bridge, but on the other hand, by order duly passed, have expressly relinquished all jurisdiction and control over it. Even if tbe law in regard to tbe abolition of a public road is applicable to bridges, [826] it is not necessary that such law should be followed in a case like the present, where the former county bridge becomes by legislative enactment a part of one of the streets of the city embraced within the county, and the county authorities from the date of the act acquiesced in such change by declining to make repairs upon the same as a county bridge. We do not mean to hold that the county authorities may not, if they see proper to do so, build bridges within the corporate limits of cities and towns or improve the streets of towns and cities embraced within the limits of the county. What is now held is, that where a road or bridge which is a part of a county road has by an amendment to a city charter been brought within the corporate limits of the city, the obligation on the part of the county to keep such road or bridge in repair immediately ceases. This case differs from Daniels v. Athens, 54 Ga. 79, 55 Ga. 609. In that ease the county authorities, with the consent of the municipal authorities, built a bridge within the city limits, which was treated both by the county and the municipal authorities as a county bridge. It was held that under such circumstances the city was under no duty to keep the same in repair, notwithstanding the fact that it had at one time contributed a portion of the money necessary to rebuild the bridge. It was not held in the Daniels case that the county was under any obligation to build the bridge, but simply that, having voluntarily built the bridge with the consent of the municipal authorities, it was under a duty to keep the same in repair, and that this duty did not rest upon the municipal authorities. There was nothing in that case indicating that the county had relinquished control over the bridge thus built by it. On the contrary, it distinctly appeared that it had exercised jurisdiction and control over the bridge, and that the repairs made by the city on the bridge were permissive and entirely gratuitous on its part. The ruling made in the Daniels case would certainly authorize the county authorities to have retained control over the bridge involved in the present case, if they had seen proper to do so,, but nothing therein ruled required that they should. The judge erred in making the mandamus absolute. Judgment reversed. All concurring, except Fish, J., absent..