No. 23,707 | Kan. | Oct 7, 1922
The opinion of the court was delivered by
A bridge on a township road was repaired under the direction of the county commissioners at a cost of $221.90. The county treasurer by direction of the commissioners transferred this amount to the county from funds of the township in his hands. The township brought mandamus against the county treasurer to require him to retransfer such sum to the credit of the township. The case was submitted on an agreed statement, one provision of which was that it should be determined upon the issue of the township’s liability for the cost of the repairs, regardless of any question concerning the manner of enforcing its obligation if it existed. Judgment was rendered in favor of the plaintiff, and the defendant appeals.
The bridge was originally built by the county at its own expense and was and is what is designated by the statute as a county bridge, although situated on a township road. The plaintiff relies upon the following section of the bridge act of 1917:
“That all bridges or culverts built in this state at county expense, or for which the county has granted aid, shall be known as ‘county bridges’ or ‘county culverts,’ and shall be maintained thereafter under the direction of the county board and the county engineer at county expense. All bridges or culverts on*12 township roads built at the expense of the several townships without county aid shall be known as ‘township bridges’ and ‘township culverts,’ and shall be maintained thereafter under the direction of the township board and the county engineer at township expense.” (Laws 1917, ch. 80, § 7.)
Another section of the same statute as enacted at that time read as follows:
“That whenever it is necessary to construct or repair any bridge or culvert on a township road in any county of this state, the county engineer’s estimated cost of which will not exceed three hundred dollars ($300), the township board of highway commissioners of the township in which such bridge or culvert is located shall appropriate from the road fund of such township a sum sufficient to meet the entire expenses of the proposed work, and the township board shall make all contracts for labor, material and other necessary expenses for such construction or repair in the manner provided in this act, and when the county engineer’s estimated cost of such work exceeds the sum of three hundred dollars ($300) and is less than $10,000 the county board shall make an appropriation from the county bridge fund and shall proceed in the same manner as provided in this act.” (Laws 1917, ch. 80, § 4.)
To give force to both these provisions it must be held that section 4 establishes the general rule making townships liable for construction or repairs to bridges on township roads costing not more than $300, while section 7 makes an exception relieving the township from the maintenance of all bridges built in whole or in part at county expense, the result being to exempt the township from liability in such a case as the present. The county does not controvert this, but contends that the situation is changed by a later enactment incidental to an amendment of section 4 made in 1919, the amended section reading:
“That section 4 of chapter 80, Laws of 1917, be amended to read as follows: Sec. 4. That whenever it is necessary to construct or repair any bridge or culvert on a township road in any county of this state, the county engineer’s estimated cost of which will not exceed six hundred dollars ($600), the township board of highway commissioners of the township in which such bridge or culvert is located shall appropriate from the road fund [of] such township a sum sufficient to meet the entire expenses of the proposed work, and the township board shall make all contracts for labor, material and other necessary expenses for such construction or repair in the manner provided in this act, and when the county engineer’s estimated cost of such work exceeds the sum of six hundred dollars ($600) the county board shall make an appropriation from the county bridge fund and shall proceed in the same manner as provided in this act: Provided farther, That the township board of highway commissioners shall assist in the construction of all bridges on township roads to the extent of $400; the entire construction to be in charge of the county engineer. When*13 any county has elected to operate under the county unit system all bridges and culverts shall be built by the county.” (Lajvs 1919, ch. 98, § 3.)
The usual rule of construction is that language of an earlier statute which is preserved in an amendment is deemed to speak as of the time of the original enactment, and not of the later one. This follows from the statutory rule that “the provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.” (Gen. Stat. 1915, § 10973, subdiv. 1.) It is true that in exceptional cases — where “such construction would be inconsistent with the manifest intent of the legislature or repugnant to the context of the statute” (Gen. Stat. 1915, § 10973) — a different rule is applied (Railway Co. v. Fuller, 105 Kan. 608" court="Kan." date_filed="1919-12-06" href="https://app.midpage.ai/document/chicago-rock-island--pacific-railway-co-v-fuller-7904811?utm_source=webapp" opinion_id="7904811">105 Kan. 608, 610, 186 Pac. 127), but we see no reason for departing from the usual interpretation here. Section 4 of the act of 1917 did not apply to bridges built at county expense, special provision for such bridges being made by section 7. The amendment to section 4, so far as it related in any way to repairs as distinguished from construction, merely raised the limit of costs to be borne by the township from $300 to $600; it did not change the class of bridges to which the section applied. The original section had no application to bridges built by the county, although on a township road, and the amended section is not to be construed as enlarging its scope in that regard. It may be remarked that the language of the original section has now been restored (Laws 1921, ch. 85, § 1) but this is not important in the present case as the repairs in question were made before the restoration.
The reenactment of a section of the statute incidental to its amendment in one respect does not give to the portion which is unchanged the effect of a new enactment so as to constitute later legislation than statutes existing at the time of the amendment and thereby effect their repeal by implication. (The State v. Kansas City, 83 Kan. 431" court="Kan." date_filed="1910-11-05" href="https://app.midpage.ai/document/state-ex-rel-taggart-v-city-of-kansas-city-7899964?utm_source=webapp" opinion_id="7899964">83 Kan. 431, 111 Pac. 493; Wilson v. Edwards County, 85 Kan. 422, 425, 116 Pac. 614.)
The judgment is affirmed.