after stating the case, delivered the •opinion of the coutt.
In- approaching the solution of the questions presented by this certificate, the first inquiry that naturally presents itself is, *208 whether a toll-bridge like that referred to is a public bridge, and hence a work of internal improvement. And we can hardly refrain from expressing surprise that there should be any doubt on the subject. What was the bridge built for, if not fit for public use ? Certainly not for the mere purpose of spanning' the Platte River as an architectural ornament, however beautiful it may be as a work of art; nor for the private use of the common council and their families; nor even for the exclusive use of the citizens of Fremont. All persons, of-whatever place, condition, or quality, are entitled to use'it as a public thoroughfare for crossing the river. The fact that they are. required to pay-toll for its use does not affect the question in the slightest degree. . Turnpikes aré public highways, notwithstanding the exaction' of toll for passing on them. Railroads are public highways, and are the only works of internal improvement spe-' cially named in the act; yet no one can travel on them without paying toll. Railroads, turnpikes, bridges, ferries, are all things of public concern, and the right to erect, them is a public right. If it be. conceded, to a private individual or corporation, it is conceded as a public franchise;' and the right to take toll is granted as a compensation for erecting the work and relieving the public treasury from the burden thereof. Those who have such franchises are agents of the public. They have, it is truet a private interest in the tolls; but the works are public, and subject to public regulation, and.the' entire public has the right ' to use them. These principles, are so elementary in the common law, that wé can hardly open our books without seeing' them recognized or illustrated. Comy'ns’s Digest, title “ Toll-thorough,” commences thus: “ Toll-thorough is a sum- demanded for a' passage through an highway; or, for a passage over a ferry, bridge, &c.; or, for goods-which-pass by such a port-in ' a river: and it may be' demanded in consideration of the repair ' of the pavement in a high street; ór, of the repair of a sea-wall, bridge, &c.; • cleansing of a river, &c. But 'toll-thorough cannqt be" claimed simply, without any consideration.” These few sentences indicate conclusively that the existence of a toll is not inconsistent with the public character of the work on which'» it is. éxacted.
Of course, there may be private bridges as there may be pri *209 vate ways, and they are put in the same category by the text-writers. Woolrych on Ways, 195. But all bridges intended and used as thoroughfares are public highways, whether subject to toll or not. Regularly, all public bridges are a county charge, and the county is bound to erect and maintain them. 1 Bla. Com. 357. But others may be charged with this duty, and a toll is the commonest of means for obtaining compensa,tion for its performance. In Angelí on Highways, it is said that .public bridges may be divided into three classes: “ First, those which belong to the public, as State, county, or township bridges, over which all people have a right to pass, without or with paying toll; these are built by public authority at the public expense, either of the State itself, or of a district or poi’■tion of the State; secondly, those which have been built by companies (like turnpike and railroad companies) or at the expense of private individuals, over which all persons have a right to pass on the payment of a toll fixed by law; thirdly, those which have been built by private individuals, and which have been surrendered or dedicated to the use of the public.” Angell on Highways, sect. 38. Chancellor Kent says : “ The privilege o.f making a road or establishing a, ferry, and taking tolls for the use of the same, is a franchise, and the public have an interest in the same; and the owners.of. the franchise are answerable in damages if they should refuse to transport an individual without any reasonable excuse, upon being paid or tendered the usual rate of fare.” In the same connection, he enumerates in this class of franchises ferries, bridges, turnpikes, and railroads. 3 Kent, Com. 458, 459.
But it is unnecessary to continue the discussion further. In our judgment, the bridge in question is a public bridge, and a work of internal improvement within the meaning of the statute.
Whether the precinct or the county commissioners have the right, without further legislative authority, to demand tolls for passing on the bridge is a totally different question, and one that does not, in our judgment, affect the validity of the bonds. The bridge being an internal improvement, the precinct had the power to aid in its construction. This it resolved to do, and on this resolve is founded the issue of the bonds. Whether *210 it should get any consideration from the public in return was a question in which the purchaser of the bond is not' concerned. A resolve to make the, bridge a toll-bridge was' an incidental matter, that might of might not be valid, and might or might not be carried out, if .valid, without affecting the main .purpose, — the. construction of the ■ bridge, or the bonds issued in aid. of its,accomplishment. The toll question was (an incidental 'one, in which the precinct alone was beneficially, interested..' If in the execution of their power .to aid in the construction of the;bridge the people of. the precinct proposed.to get,some return in the shape of tolls, and- should find j;hat they- had no authority to exact them, how can, tfiat affect -their bonds, to issue which their power'was undoubted? In voting,the bonds, they may have.acted, and .undoubtedly did act, under thé expectation that the proposed tolls would relieve them' from some taxation for their payment ;■ but, if mistaken in this, —that is, in their power to exact-tolls, r-» how can this affect the bonds ? And how can their'want--of .power to exact, tolls concern the purchaser of the bonds? The truth is, the two.things — the power to aid in the construction of the bridge, and the power to stipulate for tolls.thereon — are distinct; and in that light they should be viewed on the question of Jthe validity of the bonds. ' The bridge is an accomplished fact, a public improvement, of which the public and the people of Frémont have the benefit; and its erection is due to those' who advanced- their money on the bonds. There are some equities in thé' case that ought not to be entirely ignored in considering, not the. powers of the precinct, but the manner in Which it has attempted to exercise them. • If any party is to suffér from a mistake of law in respect to the power of exacting tolls, equity and justice require that it should be that party which has received- the benefit, and not the party -that 'advanced the consideration. This principle should always govern when it involves no violation of any rule of law.
We. deem it unnecessary to advert to other.points made in the argument. They present nothing that • requires distinct consideration.
On the whole, we are of opinion that the answer does not set up a sufficient defence in law to the cause of action, Stated in *211 the petition, whether the plaintiff had notice of the election proceedings and of the character of the proposed bridge or not before purchasing the coupons on which the suit is brought.
This conclusion requires, and our judgment is, that the first and third questions should be answered .in the negative, and that the second question is immaterial; and, consequently, tíiat the judgment of the Circuit Court should be affirmed.
Judgment affirmed.