Oskaloosa Steam-Engine Works v. Pottawattamie County

Rothbock, J. The demurrer to the answer was overruled upon th.e ground that tbe board of supervisors of the county had no power to bind the county by contracts to build the bridges in question. 'It is provided by subdivision 18 of section 303 of the Code, that the board of supervisors of a county shall have power “to provide for the erection of all bridges which may be necessary, and which the public convenience requires, within their respective counties, and ' to keep the same in repair.” As the bridges in question are within the county, it would seem, under this power, that the board of supervisors had the authority to determine whether the public convenience required their construction, and to bind the county by a contract for the erection of the same. Unless there is some statutory limitation upon their power over the subject within the limits of the .cities and towns of the county, there is no more reason for holding that a county may not build a bridge in a city or a town than that they may not do so in any other part of the county. Section 796 of the Code authorizes the board of supervisors to levy an annual tax of not less than three mills on the dollar for making and repairing bridges.” This tax is levied upon all the property of the county. If the-board of supervisors liad no power to use any part of this tax to build bridges across the streams in cities, the property owners in the cities would be required to pay a tax, no part of which could be expended in building bridges across streams which intersect the public streets of a city. It is claimed that section 527 of the Code precludes the county from building the bridges in question. That section is as follows: “ The city council shall have the care, supervision and control of all public highways, bridges, streets, alleys, public squares and commons within the city, and shall cause the same to be kept open and in repair, and free from [136] nuisances. All public bridges exceeding forty feet in.length, over any stream crossing a state or county highway, shall be constructed and kept in repair by the county: provided, that the city council may appropriate a sum not exceeding ten dollars per lineal foot to aid in the construction of any county bridge within the limits of such city, or may appropriate a like sum to aid in the construction of any bridge contiguous to said city on a highway leading to the same.” It is claimed that, because the bridges in question are not “ built over a stream crossing a state or county road” the board of supervisors has no power to bind the county by causing the same to be constructed. It is true that the cited section provides that such bridge shall be built by the county, and that the city within the corporate limits of which the bridge is erected may aid in the construction thereof. But this power does not preclude the county from exercising its authority to build bridges at other places where the public convenience may require. And these places may as well be in cities and upon streets as in the county. Counsel for the appellant argue this case as though these bridges were for the convenience of the inhabitants of Council Bluffs. In the larger cities of the state, where the inhabitants in some instances .are more numerous than all the county outside the city, and where all the people of the county have occasion to travel the streets, as they do the county roads leading to them, public convenience requires that streams crossed by streets should be bridged the same as county roads; and cities have no power to levy a bridge tax. It seems to us that the question in this case was determined in the case of Bell v. Foutch, 21 Iowa, 119. It is true, section 527 of the Code is not in precisely the same language as the corresponding section in the Revision of 1860, under which that case was determined; but the change in the section, in our opinion, does not limit the general power. We think the demurrer to the answer should have been sustained. ■ Reveksed. Seevers, J., took no part in the decision of this case.