State ex rel. Neeves v. Wood County

Cassoday, J. The bridge in question was constructed by the Wood Count}'' Bridge Company under its charter, on section 17, in township 22 north, of range G east, in Wood county, some time prior to September 1, 1867. The charter authorized the county to purchase the same and its appurtenances, including toll-house, and the soil or landing places upon which the ends of the bridge should rest, and the right of way thereto, any time after September 1, 1872. Secs. 1, 6, ch. 178, P. & L. Laws of 1860. Accordingly, such purchase was made in March, 1873. The charter provided that the franchises granted to the company thereby should — 635 — continue until the county should make such purchase, when the bridge should become a free bridge. ^ bid. The charter also provided that, until such purchase, no person or persons should have the right to build any toll or free bridge across the river within two miles of the bridge thereby authorized. Id. sec. 7. By an act of the legislature approved March 19, 1813, and published April 1, 1873, the county of Wood was, upon certain conditions specified, expressly authorized to erect and forever maintain a free bridge across the Wisconsin river upon section 8, in said township and range, from a point within the city of Grand Eapids and upon said section 8, at the “grand chute,” to a corresponding point in said section 8 within the village of Centraba; which points were to be selected, and the exact location of the bridge fixed upon and determined, within said limits, by the, board of supervisors of said county. Secs. 1, 2, ch. 298, Laws of 1873. The same act provides for levying a county bridge tax in not less than three successive years for paying for such bridge, or, if the board deem the same preferable, to issue bonds in lieu of such tax. Id. secs. 5, 6. But this last section provides, in effect, that before any such tax shall be levied or such bonds issued, in either case the question shall be submitted to the qualified electors of said county at an election to be held at the various election precincts in said county, upon notice specifying the time, place, and manner of holding such election, and the question of levying the tax'or of issuing the bonds to be voted upon, and gives the different forms of ballots -to be used, and declares that “ the said tax shall or shall not be levied, and the said bonds shall or shall not be issued, in accordance with the vote thereon,” as therein provided, “ by a majority of the electors of said county.” The same section further- provides “ that no tax shall be levied or bonds issued as aforesaid until said county shall have complied with the provisions — 636 — of section seven ” of ch. 178, P. & L. Laws of 1865, “ by purchase and possession of said Wood county bridge.” Under these two acts it is very obvious that the county was prohibited from building’ any such bridge on section 8 until after it had exercised its option and actually purchased the bridge constructed by the Wood County Bridge Company. But the act of 1873 goes still further, and in effect precludes the county from building any such bridge on section 8 until the levying of such tax or issuing of such bonds has been actually voted “ by a majority of the electors of said county.” True, the supervisors might take the preliminary steps prescribed, and submit the question of levying such tax or issuing such bonds to a vote of such electors; but that is the extent to which coei’cion could now go, if at all, and the result.would be uncertain, and might turn out to be entirely futile. Such being the authority, or rather want of authority, in the county board, in relation to building a new bridge on section 8, there would seem to be no force in the argument advanced against the awarding of a mandamus, if the relators are otherwise entitled thereto, b‘y reason of a supposed discretion in the board either to build such new bridge on section 8 or to rebuild such bridge on section 17. The question recurs whet her, under the circumstances disclosed by this record, the law imposes upon the county board the imperative duty of rebuilding the bridge on the old site. As observed, the charter provided that upon the purchase of the bridge by the county the same should 'become a free bridge. By such purchase the county became the owner, with the exclusi ve right of control, subject to the public user of the same as a free bridge: and consequently it was held by this court that the county was bound to keep the bridge in repair. State ex rel. Neeves v. Wood Co. 41 Wis. 28; Bishop v. Centralia, 49 Wis. 674. Such duty was there held to be compellable b}r mandamus. — 637 — A public bridge for public travel, connecting parts of a public highway, is itself a part of a public highway. 2 Am. & Eng. Ency. Law, 541, and cases there cited. It has been held that a count}’', bound by statute to repair public bridges, is likewise bound to replace or rebuild them when substantially destroyed. State ex rel. Roundtree v. Gibson Co. 80 Ind. 478, 41 Am. Rep. 821. But it cannot be successfully maintained that a county board of supervisors may be compelled to replace or rebuild such bridge, unless they have at their command the means for-paying the expenses thereof, or the authority for procuring such means. Our statutes provide that “ the several county boards in their respective counties may adopt any main traveled highways, or parts of such highways, as county roads, and shall thereafter cause the same to be kept in good repair, so long as they remain under their control.” Sec. 1308, R. S.; Stilling v. Thorp, 54 Wis. 529. But we do not think that section authorizes a county board to levy the tax therein mentioned for the purpose'of rebuilding a bridge over a navigable river under the circumstances here presented. The portion of the section referred to reads: “ Any such board may annually levy on the taxable property of the county a county road tax, not exceeding eight thousand dollars, which shall be expended under their direction in making culverts, grading, graveling, ditching, or otherwise improving such highways.” By a familiar rule of construction the words, “ or otherwise improving such high "ways,” must be held to mean the improving of such highways by the making of culverts, grading, graveling, ditching, or other improvements of a similar character; and not the rebuilding of a bridge at extraordinary expense, as here. There is another reason why that section should not apply to the levying of a tax for building a bridge over a navigable river like the Wisconsin. There is another section of the statutes which, within certain limitations, — 638 — expressly authorizes any county through which such navigable stream runs, to levy and collect such tax for the purpose of building a bridge across such navigable stream, or to issue their corporate bonds therefor. Sec. 1320, R. S., as amended by sec. 1, ch. 345, Laws of 1885, and ch. 285, Laws of 1837. But the statutes also provide, in effect, that no such tax shall be levied or bonds issued for that purpose until the question of levying such tax or issuing such bonds shall have been submitted to a vote of the electors of such county and adopted in the manner prescribed. Sec. 1321, R. S., as amended by sec. 2, ch. 345, Laws of 1885. There is no claim that any such submission was ever had or any such vote ever taken. We must hold these sections applicable to the bridge in question, notwithstanding it was acquired by the county prior to the enactment of ch. 229, Laws of 1874. The case i is distinguishable from State ex rel. Rochester v. Racine Co. 70 Wis. 543. The facts in that case were peculiar. It is enough here to say that the several session laws prior to 1878, referred to in the opinion in that case, were all repealed by sec. 4978, R. S., except in so far as revised and re-enacted in the Revised Statutes. Neither the charter of Grand Rapids (ch. 247, P. & L. Laws of 1869) nor the charter of Centralia (ch. 275, Laws of 1874) authorizes those cities or either of them to bridge the "Wisconsin; so that sec. 1319, R. S., as amended by ch. 187, Laws of 1885, if otherwise applicable, does not apply. The Wisconsin, at the point in question, is a navigable river, and hence to bridge the same required statutory authority. Sec. 1598, R. S. As observed, the authority to purchase the bridge gave the county the right to maintain the same. But that did not give the county board unlimited authority to levy and collect taxes and expend money in the reconstruction of such bridge. On the contrary, such board is confined to the exei’cise of such authority as is given it by statute, either expressly or by necessary implication. — 639 — It appears from the return, and is conceded in the relation and bythe demurrer, that the bridge in question was located at the foot of the rapids; that a bridge at that point is in danger annually of being swept away by ice gorges; that it was swept away in 1877, and again in April, 1888; that in 1877 the county rebuilt the bridge in part at a cost of §8,000 for the superstructure, that it would cost to rebuild the bridge, with new stone piers and abutments and iron superstructure, some §25,000; that the cost of repairing the bridge, using the portions not destroyed, would be at least $7,000, and probably much more; that, if the bridge should be thus repaired, it would probably last but a few years at most; that a suitable bridge can be built with much more safety and much more durability at a point further up the river on section 8. Assuming, therefore, that the duty of maintaining a bridge at the point in question, or on section 8, rests upon the county, still the county board should not be compelled by mandamus to build the same, in the absence of the necessary means for paying the expenses thereof, or of the authority for procuring such means, which, as we have seen, does not now exist. By the Gourt.— The demurrer to the return is overruled, and the relation is dismissed.