21 Iowa 119 | Iowa | 1866
The contemplated bridge is to be a free and not a toll-bridge. It is designed to cross the Des Moines river, a large stream, several hundred miles in length, bisecting the county of Polk. The city of Des Moines also lies on
In other words, the- street connects with State or county roads; and the bridge will accommodate, not simply the citizens of Des Moines, but, being upon or connecting with lines of highways running into and through the county,, it will accommodate all the citizens of the county, and the traveling public at large. •
These circumstances show that the benefits of the bridge in question will not alone be enjoyed by the city, and in view of our statutes on the subject of roads and bridges, these facts seemed necessary to be stated, that the questions decided should be properly understood.
The present case is brought to test the legality of the appropriation of $2,000, by the board of supervisors, out of the bridge fund, and the plaintiff’s argument against its legality is, in substance, this: That the fee of the streets is in the city; that-the city authorities have the sole control of the streets of the city; that the county has no power over the streets, and no duties in respect to them ; in other words, the county has no right to build a bridge of any
It is only necessary to discuss the question whether, under the general statutes of the State, taken in connection •with the general incorporation act just referred to, the county authorities have the power to erect or aid in the erection of a bridge over the Des Moines river, at the point above described, within the limits of the city corporation. That the county authorities have this power, may be clearly shown by an examination of the statute.
No enlightened State will fail to provide a mode or system for the laying out, improvement, and keeping in repair, highways and bridges. What system has been adopted in this State? This it is necessary briefly to examine. The State, instead of undertaking this work directly, has committed it to various local or subordinate auxiliaries of government. And the provisions in respect to roads and in respect to bridges, are not in all respects the same. The county authorities alone have the power to establish highways and are invested with the general supervision thereof, including bridges. Rev. §§ 819-823; 312, 327, subd. 13,17.
For- ordinary road and ordinary bridge purposes the county is, as to their construction, amendment and repair, divided into road districts, each with its supervisor, with power to require a certain limited amount of work from all the able-bodied residents, and with power in the township trustees to levy a township road and bridge tax, to a limited amount, payable partly in money and partly in labor; the money thus realized to be expended in the
Now this is the provision made by law for ordinary road and bridge purposes. But if this were all, it is evident that the law would be very inadequate, so far as concerns bridges requiring an extraordinary expenditure to construct or repair them. The State is traversed by numerous water-courses or streams of considerable size, of which the Des Moines is one.
Now, if the above were the only provisions of the statute, the particular road district on the river, in which a bridge was needed, would have to bear the whole expense of its construction, or -else leave the river unbridged. This the law makers have anticipated and carefully provided for, as we shall now proceed to show, making bridges essentially a matter pertaining to the duties of the county organization.
Thus the county supervisors have express power “ To provide for the erection of all bridges which may be necessary, and which the public convenience may require within their respective counties and to keep the same in repair.” Rev., §§ 312, subd., 18; 313 (last part) 327, 819.
To enable the county to execute this duty, the statute (Rev., ch. 45, § 710) provides “ that the board of supervisors in each county, shall annually levy the following taxes upon the assessed value of the taxable property of the county: 1. For State revenue, &c. * * * * 4, For malting and repairing bridges, not more than one mill on the dollar, whenever the board of supervisors shall deem it necessary." This tax of one mill was found to be inadequate in many of the counties traversed by large streams, and hence the power was recently enlarged so as to give the right to levy a three mill bridge tax. Acts 1866, p. 80.
No such provision is made for the levy by the county of a county road tax, for the reason it may be supposed, that
Under the above provisions, unless there is something in the act under which the city of Des Moines is organized, which takes cities and towns out of the operation of those provisions, it is undeniable that the county would have the power to construct a bridge over the Des Moines at the place in question; and if it has this power it would have the power to aid others in constructing a free bridge, especially if it did not part with its supervisory power over it when constructed. See Yant v. Brooks, 19 Iowa, 87.
We do not think a fair construction of this general language requires us to hold that it ousts the county of the right, which we have shown it would otherwise possess, to bridge the Des Moines at the place in question.
We briefly state the reasons for this opinion:
1. Many bridges in a city are purely local, across gutters or small streams, such, for example, as Bird’s run in Des Moines, and not connected with the public highways of the county, and to these this language-may properly apply.
2. It may be, though we do not rule the point, that
S. But the chief, and it seems to our mind a most satisfactory, reason for the above opinion,. consists in, the fact that the county bridge tax* provided for by section 710 of the Revision, is levied upon all the taxable property of the county, upon that within the city the same as upon that without the city.
And the bridge fund for 1865, out of which the $2,000 appropriation in question was made, was raised, as it must be presumed and indeed is not disputed, from the taxable property of the city as well as from that ■ of the county outside of the city. The burden is equal upon the city and county. Shall we ignore all equitable considerations, and hold that there shall be equality of burden but not of benefit? Shall we adjudge that' the city has the capacity, nay, the duty, to pay but not the power to enjoy ? The law is plain that the county may levy a bridge tax upon the taxable property in the city; indeed if it levies such a tax at all, it must levy it upon the property of the whole county including the city. Rev., § 710.
The law thus obliging the citizens of Des Moines to pay a bridge tax, shall we hold them utterly disabled from participating in the advantages which are presumed to be the consideration for the tax ? Such a construction of section 1097 would* be wholly unwarrantable — the language not imperatively requiring it.
4.' A county may be able to construct.^ bridge inside a corporation, over a stream, when the town or municipal corporation, though willing, would not be able to do so. If appellants’ doctrine is correct, the county cannot construct a bridge across a river, though it construct it on the
And in this case it is to be observed that the city and county are ■ acting in concert with each other, and with public spirited citizens desirou's of further conveniences for the passage of the river which divides .the county and the city into two parts. It is true that the bridge will connect one part of Walnut street with another, but though this is a street, a citizen of the county or the State has just the same rights in it as a citizen of Des Moines — the right of way or passage, a, right which the city cannot deny or abridge, or alien. The city has the bare fee, but it is in trust for,the public; and the trustee cannot alien the trust property, or pervert it to other than the dedicated uses.
If we should be mistaken in the view above taken, as to the power and right of the county to erect public bridges on public highways inside of the city, still we cannot be mistaken in saying that it is a matter of county duty to see that bridges across the water-courses of the county are provided for.
If citizens propose to erect a free bridge (with the sanction of the authorities) for public use upon a public line 3. — aia. of travel, we cannot regard- an appropriation to aid them in so doing as an appropriation of money by the county to an object foreign to its legitimate purposes and functions.
The county of Polk could, on a public highway, bridge the Des Moine^, or aid in doing so, just above or just below the city limits. Nobody denies this.' But a bridge there would be off the line of travel, and of little use. The county highways connect with the city.. The people of the county have occasion to come to and pass through
If the county here be treated as the builder and owner of the bridge in question, it admits of some doubt whether the statute cited applies to free bridges constructed by the public. But however this may be, the very judicious order made by the District Court deprives the plaintiffs of all ground of complaint on this head, even if it be conceded that they, without showing some special interest in the navigation of the river, can make the objection.
IV. Again, it is urged that the $2,000 is appropriated in aid of & private enterprise, and the board had no authority to make'such an appropriation.
We see no evidence that this is a private enterprise, at least in such a sense as to prevent the board from aiding
The county and city have a committee acting for them in the premises. We cannot regard the appropriation as in the nature of a donation to proprietors of a private bridge, which it may be conceded the county would have no rightful power to make. Nor do we perceive any objection to holding that the county may, if it sees fit, construct, or aid in constructing, a public bridge, on condition that private individuals, or others specially benefited, will contribute to its expense.
The order of the judge as to the terms and time of payment of this $2,000 deprives the appellants of all reasonable ground of complaint, and obviates the effect of the objectionable provisions of the contract respecting the contractors' lien for the $6,000 balance of the contract price of the bridge.
Affirmed.