127 Ky. 120 | Ky. Ct. App. | 1907
Lead Opinion
Opinion of the Court by
Reversing.
Flemingsburg, a city of tbe fifth class, has- a population of about 1,100, and is situated on a creek that runs entirely through the city. Crossing this creek on a bridge within the city limits is one of the principal highways of the county, which is also used as a street of the city. It does not appear in the record whether this bridge was. originally erected by the county or city or a turnpike company; but for the past 15 years the city has been exercising control over it and keeping it in repair. In 1905 the bridge became unsafe and dangerous for public travel, rendering it necessary to erect a new structure. Conceiving that it was the duty of the fiscal court to rebuild or erect a new one, the city council demanded that the fiscal court do this work. The court declined to do so, upon the ground that, as the bridge was entirely within the city limits, it was the duty of the city to repair or rebuild it. Thereupon the city did erect a new bridge that cost, as is averred, $3,065, and sought in this action to recover from the county of Fleming this sum. A demurrer was sustained to the petition, as well as to an amended petition, and, declining to further amend, the city prosecutes this appeal.
The real question is: Is the bridge upon one of the thoroughfares or highways of the county, and is it necessary for the use of the people of 'the county in going to and from the public places and buildings within the county? If so, the county, in cities the size of Plemingsburg and smaller towns, should be required to bear its proportion of the expense of maintaining the bridge or erecting a new one. In large cities, where bridges are necessary more for the convenience óf the inhabitants of the city than the people of the county generally, and the cities by reason of the population and wealth are financially able to erect such bridges as may be required, the county will ordinarily not be compelled to erect or contribute to their erection; but it is a matter of common knowledge that in a large number of the smaller towns of the State the main streets are parts of the public highways of the county, and are used as much, if not more, by the people of the county than they are by the inhabitants of the city; and in such cases, where bridges are needed as parts of
In this- connection, and throwing light upon the policy of the Legislature as to requiring the larger cities to erect and repair at their own expense bridges, it is worthy of some, but not controlling, notice that in the charters of cities of the first, second, third, and fourth classes provision is expressly made for the construction and repair of bridges (Ky. Stats. 1903, sections 2825, 3058, 3119, 3290); whereas, in the charters of cities of the fifth class and towns of the sixth class, the word “bridge” is not mentioned. It might therefore be inferred that the Legislature intended to impose on cities of the first, second, third, and fourth classes the duty of erecting and repairing bridges within the city limits; whilst the county might bé required in whole or in part to erect and repair bridges in cities of the fifth class and towns of the sixth class. It is true that in Town of Paintsville v. Com., 55 S. W. 915, 21 Ky. Law Rep. 1634, it was held that a town of the sixth class could be indicted and punished for failing and refusing to .keep in repair a bridge on a street of the town for an
The question involved in this case is of general importance, and the conclusion we have reached not free from difficulty. On the one hand, it is pressed with force that the fiscal court is charged by law with the conduct and management of the fiscal affairs of the county and the construction and repair of its highways and bridges, and that the discretion vested in it by the Legislature in matters of this character and others affecting the general welfare of the county ought not to be controlled or directed by boards of council or other municipal officers; that the cities and towns in the State are also corporations created by law, having the exclusive control of the streets and public places within the corporate limits ; that, as the fiscal court cannot interfere in' the governmental affairs of cities and towns, or
On the other hand, it is urged that, although cities and towns are separate municipalities, invested with certain rights and powers, they are nevertheless a part of the county, the inhabitants being required to contribute'to all expenses incident to county affairs, includng the construction of highways and bridges', and in addition to this are burdened with the expense of maintaining the municipal -corporation in which they reside. Therefore it is said that when a structure such as a bridge, although situated within a town or city, is needed as much, if not more, for the use and benefit of the people of the county, than it is for the inhabitants of the city, and is located on one of the public highways of the county and the city, the county should be required to contribute its share
Having well in mind the troublesome nature of the question before us, and the difficulty in laying down any rule that will be equitable and fair to the people and taxpayers of the city and county, yet our conclusion is- that the judgment of the lower court dismissing the petition was, erroneous, and that the county should be required to contribute its fair proportion towards the expense needful to be incurred in erecting such a bridge across this stream as might be safe and sufficient for public travel. What proportion of the cost of such a structure should be borne
Wherefore the judgment of the lower court is reversed, with directions to proceed in conformity with this opinion.
Dissenting Opinion
dissenting. Conceiving that the majority opinion in this case has gone too far, I feel constrained to dissent, and in deference to that opinion of the public who may be concerned, in a further investigation of the matter I will submit the reasons upon which I base this action.
It is to be noted in the first place that the liability adjudged is; one of implied, assumpsit by a municipal corporation against a county. Heretofore it has been understood, that such actions- do» not lie; that, the
Elizabethtown v. Hardin County and Leslie County v. Wooten may be regarded as deciding the same question. Both of these cases are rested upon a statute which expressly requires the fiscal courts of a county to repair public bridges within the county and forming a part of the county highways. In each of the eases a mandamus was sought against the fiscal court to put it in action and to require it to perform a plain statutory duty about which it had no discretion, except as to the character of repairs it had to make upon the bridge and the amount of money that it might elect to spend therefor. Accepting the proposition as settled and as sound that the writ of mandamus will issue at the instance of any interested suitor against the fiscal court of a county to- require it to execute an express public duty, still neither of the
We now come to the Nelson County case. That case was an agreed action filed in the circuit court for the construction by that court of the sections of the statute concerning the obligation imposed by statute upon a town of the fifth class and the county in which it was situated respecting the keeping up of the public highways which traversed both of the units. A mandamus was not sought in that case. Neither municipality was refusing to do what it had to do. On the contrary, they were seeking light as to what their legal duty was in order that they might do it. The sole questions presented were, first, whose duty was it to keep up that part of the turnpike formerly owned by private corporations, but recently acquired under the free turnpike act, which now lay within the incorporated towns? The court answered that query upon the authority of Board of Council of Danville v. Fiscal Court of Boyle County, 106 Ky. 608 21 Ky. Law Rep. 196, 51 S. W. 157, to the effect: “That the turnpikes, when purchased by the fiscal court, became public highways; the part lying within the city, being a public way, should be controlled by it; and the part without the city, falling within the fiscal court’s jurisdiction, should be controlled by it.” The second question submitted by that case was as to which of
It should be noted -at this point that the facts of the case at bar are materially different from those in any of the cases above discussed. Here the bridge was not built by the county, was never owned by it, and the fiscal court never assumed or exercised any control over it. Furthermore, this bridge is in the heart of the city, is used mainly by its own population for their convenience, and only incidentally by the people from the country. If the case had merely stopped at the point of saying upon the authorities of
The opinion is an anomaly, furthermore, in that it asserts obiter dictum that, notwithstanding this bridge is a part of the county highway, yet for failure to keep it in repair — a neglect of duty in part at least by the fiscal court, as the opinion holds, the city would be liable to one injured thereon. The converse perhaps would seem to be true — that, if the county should voluntarily execute the duty of keeping the bridge in repair, but do so in such manner as that an employe or ¡other person were in
We then have this state of case under the opinions of this • court: That a bridge within a town which forms a part of a general highway traversing a county should be rebuilt,' in case- it falls into disrepair, in part by the town and in part by the county; that the chancellor will judge as to how much each municipality should contribute; that as to the county mandamus will lie to compel the fiscal court to perform its part of its duty, but that as to the town mandamus will not lie to require it to perform its