Board of Commissioners v. City of Wyandotte

The opinion of the court was delivered by Horton, C. J.: The fact that the bridge was built by the county and is the property of the county, would seem to carry with it as an incident, the right of the county to take care of, preserve and control it, unless the legislature by enactment has directed otherwise. (State v. Supervisors, 41 Wis. 28.) An examination of the statute demonstrates that this power is not interfered with by the statute, but on the other hand, express authority is given counties to repair bridges and make appropriations therefor. Sec. 17, ch. 16, Comp. Laws 1879, reads as follows: “It shall be the duty of the board of county commissioners, in counties having twenty thousand inhabitants or more, . «. . to determine what bridges shall be built and repaired at the expense of the county, and what bridges at the expense of the township.” Sec. 24, said ch. 16, further provides: [433] “When a bridge built by the county is out of repair, the board shall estimate the cost of repairing it, and make an appropriation therefor; and may require the township trustee of the township, or the overseer of the road district in which the bridge is located, or some other suitable person, to proceed immediately to repair the same as the board may direct: Provided, That if the costs of repairing the same exceed one hundred dollars, then like preliminary steps shall be taken as in building a bridge.” By the census of 1881, the county of Wyandotte has over twenty thousand inhabitants, and within the above provisions it is the duty of that county to maintain and repair the bridge in controversy, notwithstanding it is partly in Wyandotte city and partly in Kansas City, Kansas. The legislature may enact all needful regulations for the control and repair of property held by the county in trust for public use, and there is nothing in the acts incorporating cities of the second class in conflict with the sections-of the statute cited. Counsel for plaintiff in error cites Commissioners v. Riggs, 24 Kas. 255, and urges that the decision therein is to the effect that the county is not under duty to repair bridges. That decision does not sustain the proposition contended for. It was decided in that case only “in -the absence of a liability expressly declared by statute, a county is not liable for damages accruing from defective highways or public bridges.” This, because a distinction has been recognized by the adjudications in this state, betwéen the implied liability of cities and of quasi corporations like counties. The judgment of the district court will be affirmed. All the Justices concurring.