100 Ill. 631 | Ill. | 1881
delivered the opinion of the Court:
There is no common law obligation resting on towns to erect or keep in repair bridges within their respective borders, or upon town lines. If adjoining towns are liable to contribute equally to the erection and keeping in repair of bridges on town lines, that liability exists by virtue of our statute. It is contended by appellant that the liability in this ease is imposed by sec. 107, Rev. Stat. 1874, p. 930, which declares: “Bridges over streams which divide towns or counties, and bridges over streams on roads on county or town lines, shall be built and repaired at the equal expense of such towns or counties: Provided, that for the building and maintaining of bridges over streams near county or town lines, in which both are equally interested, the expense of building and maintaining any such bridges'shall be borne equally by both counties or towns.” If this was the only section of the statute relating to the subject, there would be much force in the position of appellant. But while this section of the statute, when read alone, would seem to impose the liability, it must, however, he read and construed in connection with other sections of the statute bearing on the subject. In this way only can the true intent of the legislature be ascertained, and a correct conclusion reached in regard to what was intended by the enactment of the different sections of the statute.
Section 108, which immediately follows the section relied upon, declares : “For the purpose of building or keeping in repair such bridge or bridges, it shall be lawful for the commissioners of highways of such adjoining towns or counties to enter [into] joint contracts, and such contracts may be enforced in law or equity against such commissioners jointly, the same as if entered into by individuals, and such commissioners may be proceeded against jointly, by any parties interested in such bridge or bridges, for any neglect of duty in reference to such bridge or bridges, or for any damages growing out of such neglect. ” The power to enter into joint contracts named in this section, was conferred subject to such other provisions as are contained in the statute, and must be read in connection with the following section 109, which declares: “If the commissioners of highways of either of such towns, after reasonable notice in writing from the commissioners of highways of any other such towns, shall neglect or refuse to build or repair any such bridge, when any contract or agreement has been made in regard to the same, it shall be lawful for the commissioners so giving notice to build or repair the same, and to recover by suit one-half (or so much as shall have been agreed upon) of the expense of so building or repairing such bridge, with costs of suit, and interest from the time of the completion thereof, from the commissioners so neglecting or refusing. ”
It will be observed that section 107 contains no provision whereby one town can compel another to erect or repair a bridge on a town line. The section is a mere declaration of the rule or principle which shall govern when other preliminaries have been settled between the towns, as declared in section 109. Section 108 merely authorizes the commissioners of the two towns to meet together and confer, one board with the other, and if they see proper they may, under this section, contract with a third party to repair or build a bridge on the town line, and as to such third party they will be bound and held liable on such contract. Neither of these sections directly or indirectly confers authority upon the commissioners of one town to compel the commissioners of an adjoining town to repair or erect a bridge on a town line, or pay one-half of the cost of such bridge after it may be erected or repaired. As between two adjoining towns, where a bridge has been erected or repaired on a town line by one, no remedy is provided until we come to section 109. That section provides the remedy, but the remedy provided is conditional, and can only be enforced where a contract or agreement has been made by and between the commissioners of the two towns in regard to the bridge. If no agreement has ever been made between the commissioners of the two towns in regard to erecting or repairing a bridge on a town line, no action can be maintained by the one against the other to recover for money expended on such bridge. Whether the provision in section 109, confining the remedy to cases where a contract or agreement has been made in regard to the bridge, is a wise one or not, is a matter with which the courts have no concern. It was for the legislature to determine under what circumstances the commissioners of one town might maintain an action against the commissioners of another town, and when that body has so determined, courts can not, by judicial construction, disregard a plain provision of the statute. We perceive no ground.upon which the action can be maintained, unless the words “when any contract or agreement has been made in regard to the same, ” contained in section 109, are disregarded, and we are aware of no rule in the construction of statutes which would authorize us to ignore those words in placing a construction upon the statute. But we do not think the limitation upon the commissioners of one town to sue the commissioners of another, and thus compel them to contribute one-half of the cost of erecting a bridge over a stream on a town line, was inserted in the statute inadvertently, or without a wise purpose. If the commissioners of one town have the power to compel the commissioners of another town to contribute one-half of the cost of erecting a bridge over a stream on the line between two towns, without a prior contract or agreement, by merely serving a notice, there are many cases where a densely populated township might bankrupt and bring ruin upon an adjoining township containing but few inhabitants and a small amount of taxable property. For instance, take two townships separated by the Illinois river, one containing within its limits a large city and a large amount of taxable property, the other containing but few inhabitants and a small amount of taxable property,—the commissioners of the rich and populous township desire a bridge over the river which forms the boundary line between the two, which will cost $150,000,—did the legislature ever intend by the enactment of section 107 that the township without capital or resources can be compelled, against its will and without an agreement, to contribute $75,000 to pay for the erection of the bridge ? We can not believe such a result was ever within the contemplation of the legislature, and yet should the construction of the statute contended for by appellant prevail, such results would necessarily follow.
If we are correct in these views, it follows that the declaration did not state a cause of action, and the demurrer was. properly sustained thereto.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
