90 W. Va. 24 | W. Va. | 1922
The question involved on this certificate is the propriety of the ruling of the circuit court holding the return of the respondent to an alternative writ of mandamus to be insufficient. „
In the year 1893 the county court of Marshall county granted to the predecessor of the respondent a franchise authorizing the construction and operation of a street railway over the public road leading from Bemvood in said county of Marshall to Moundsville, the county seat thereof, which contained, among other conditions and stipulations, the following: Whenever the said railway company shall use for its road purposes any of the county bridges the said company shall strengthen the county bridges at the expense of said company.” Pursuant to such authority the respondent’s predecessor constructed its street railway over the county road between Benwood and Moundsville. Between these two cities said county road crosses a stream called McMechen’s Run upon an iron bridge which had theretofore been constructed by the county court, and the. street car company, under the authority of the franchise, laid its tracks across this bridge. At that time nothing was done by the street car company in the way of strengthening the bridge, it being the contention that it was entirely sufficient to support the railway traffic, as well as the ordinary traffic thereover. In the year 1895 the corporate limits of
In this return the right of the relators to have a writ of mandamus is denied upon the ground that there is no privity of 'contract between the relaotrs and the respondent, or its predecessor, the contract being made with respondent’s predecessor and the county court of Marshall county pro
The respondent insists that the bridge in question is a part of one of the county roads of Marshall county, and that the relators are under no obligation to keep the same in good order or repair. It insists that the constitutional provision by which county courts are authorized and empowered to regulate and control county roads under such regulations as may be prescribed by law inhibits the relators from assuming any control or jurisdiction over this bridge inconsistent with the duty and authority of the county court to maintain the same in a condition making it reasonably safe for travel in the ordinary mode. In the case of Cavender v. The City of Charleston, 62 W. Va. 654, it was distinctly held, that the legislature had authority to enlarge the limits of a municipal corporation, and transfer to a city the duty of maintenance and repair of a public bridge within the limits of the city as so enlarged. In that case the corporate limits of the city of Charleston were extended so as to include a bridge which had been constructed by the county of Kanawha as a part of one of the public highways. The suit was to recover damages for an injury sustained by reason of the bridge being unsafe for travel in the ordinary way, and the liability of the city therefor was sustained. It is insisted by the respondent that the provision of the constitution in regard to the control of county roads by the county court, being § 24 of art. 8, is not referred to or passed upon in that decision. The decision in the Cavender case is a well-considered one, and it is rather violent to assume that the court did not consider a provision of the fundamental law so far as the same might be applicable to the case presented for its determination. It is true that § 24 of art. 8 provides that county courts shall have the power to establish and regulate roads, ways and bridges, but this is all under such regulations as may be provided by law. It simply means that the county courts in this regard are subject to such legislative enactments as do not contravene any pro-yision of the constitution. Now, as was held in the Cavender case, whenever a public road is taken within. the limits of
Nor do we think there is more merit in the contention that by designating the highway between Moundsville and Wheeling as a class A. road under authority of a legislative act, the county court thereby assumed full control and authority thereover. It is quite true that the road law as it now exists authorizes state and county outhorities to establish through cities and towns certain roads as main county or state roads. This provision is not, however, one withdrawing from the municipality its police jurisdiction from these highways, or in any way relieving it of the obligation cast upon it to control and maintain them. It simply authorizes county or state authorities, when they have designated such roads to be county or state highways, to spend money on them to keep them in such condition as the state or county authorities may believe to be desirable. It was realized that in many cases the city or town authorities did not maintain their roads and streets in that condition which was deemed desirable, and the legislative act authorizing county and state authorities to designate some of the streets of a city or town as part of a state or county road had no other effect than to enable such state or county authorities to spend the state or county funds in maintaining them in such more improved condition. The city authorities are in no way relieved from their primary obligation to maintain such roads and streets in a reasonably safe condition for travel thereover, and the liability of such city,
The next .defense insisted upon by the respondent involves the proper construction of the provision of the franchise relied upon. This provision we have above quoted. The relators insist that under this provision the respondent is obliged to strengthen this bridge whenever the same becomes insufficient to sustain the travel thereover, whether such insufficiency is because of the use made thereof by the respondent, or for any other reason, and evidently this was the view taken by the court below, while the respondent contends that this language required it only to see that no additional burden was imposed upon, the county court because of its use of the bridge. It insists that the language creates no obligation upon it to strengthen this bridge when the necessity for such strengthening arises from the increased weight of traffic thereover for which .it is in no sense responsible. It occurs to us that this is the reasonable interpretation of this provision. This bridge was in existence in the year 1893 when the franchise was granted to the predecessor in title of the respondent. At that time it was sufficient for the purpose for which it was constructed, and not only for that purpose, but for many years it supported the tracks and equipment of the respondent without any strengthening thereof. The allegation of the return is that in the year 1915 the respondent deemed it • necessary to strengthen the bridge and relieve' it entirely of any strain because of the operation of its railroad thereover, and that no weakening of the bridge had happened up to that time
The return further makes defense to the writ upon the ground that the city of McMechen, by its common council, for a valuable consideration, released the respondent from all of its obligation to said city arising under the terms of the franchise above referred to. It is said that this allegation of the return makes no defense to the writ-because it does not appear that the parties who executed a receipt which is filed with the return were authorized to release the respondent. We do not think there is anything in this contention. The return avers that for a valuable consideration the council of the city and a committee duly authorized thereto made the contract of release, and a receipt is filed showing payment of part of the consideration therefor. If it should turn out that this action was not taken by the proper authorities, of course the release would be of no effect, but the return alleges that the proper authorities did make it, and this fact, if challenged, must be proved the same as any other fact relied upon.
There is another reason, however, not urged by counsel, which to our minds would make inapplicable to the bridge in question any release made by one of the relators. It will be borne in mind that this bridge connects the cities of McMechen and Benwood, one-half thereof being in each of said cities. Could a release by one of these cities of the obligation of the respondent under the franchise to it, be-said to apply to its obligation to strengthen this bridge?
We think not, -for this reason: neither of said cities can be considered as the owner of any particular part of said bridge. The bridge is a whole, it is a unit. The obligation of the respondent' to strengthen it is to strengthen all of it if it should need such strengthening. The obligation of the cities of McMechen and Benwood is to maintain this bridge in a reasonably safe condition all the way across. This obligation cannot be divided. If the city of McMechen maintained the bridge in good order out to the middle of the stream, and it was allowed to become dangerous for the other half of the way, it could not be said that any'part
The respondent also insists that the relators are not entitled to the relief asked for the reason that the contract, which is the basis of relators’ suit, was between respondent and the county court of Marshall county, and that relators, not being parties thereto, cannot have the benefits or advantages arising therefrom. There is no merit in this contention. The contract was made for the benefit of the governmental agency charged with the duty of maintaining the roads and bridges, and when, by an act of the legislature, this agency was changed and the duty cast upon the rela-tors, they became the successors of the county court so far •as the maintenance of this bridge is concerned, and entitled to the advantage of all contracts made by their predecessor in relation thereto; In making the contract referred to the icounty court was performing a governmental function, and when another agency was subsequently charged' with the duty which theretofore devolved upon the county court, such •substituted agency simply stepped into the position theretofore occupied by the county court and became entitled to all lawful means theretofore used by its predecessor in the performance of the governmental function charged upon it. ■28 C. T. C. 220.
Nor is the defense of the Statute of Limitations as the same is set up and relied upon any real defense. Accord
It follows from what we have said that the return tendered by the respondent makes a good defense to the alternative writ, and the action of the court in holding that it made no defense thereto was error. We will reverse that action, permit the return to be filed, and certify this result to the circuit court of Marshall county-for' such further proceedings in the cause as may be appropriate.
Reversed; Demurrer to return overruled.