47 Pa. 361 | Pa. | 1864
The opinion of the court was delivered, by
County bridges, under our General Road Law of 13th June 1836, are such as are established agreeably to the provisions of the 35th section of that enactment, and it is only to such bridges that the remedial provisions of the subsequent sections of the act apply. The Oil Creek Bridge, in question here, is not such a bridge, because it was built long before the Act of 1836, hut it was nevertheless a county bridge
It is said the Act of 13th April 1843, which charged counties with the duty of repairing county bridges built under the Act of 1836, was repealed as to Crawford county by the Act of 11th March 1844; and so it was, but what had this legislation to do with a county bridge that was not built under the Act of 1836, but under that of >302 ? We do not think the rebuilding of the bridge in 1846 was an unauthorized act on the part of the commissioners, but a proper duty which, had they not done it voluntarily, the court would have compelled them to perform. The duty was imposed by the judicial proceedings of 1820, and it was a continuing duty which the repeal of the Act of 1843 in nowise affected.
And nothing has since occurred, neither legislation nor judi-' cial action, to take away the county character of this bridge. The incorporation of the borough of Titusville did not relieve the county of the obligation to maintain it, much less its natural decay or accident by flood or fire. On the contrary, the Act of 25th March 1861, P. L. 206, was declaratory of the duty of the commissioners “ to repair all accidental damages to the county bridges of said county (of Crawford) which may have been or shall hereafter be caused by the violence of floods, fires, winds, or otherwise, and to repair the same when dangerous or impassable from decay.”
If we should construe the word “repair” in this act as strictly as the court below did, nay, if we should set aside the act altogether, the duty of maintaining the bridge, once legally imposed upon the county, and never taken off, would still have to be enforced. But we cannot so read the act as to exclude the restoration of a broken superstructure. What but a “repair” of a bridge is the renewal of the superstructure? The principal cost of most bridges is in .the piers and abutments. These, we understand, are unimpaired in the bridge in question, but the superstructure broke down from age and decay, and the commissioners doubt whether an Act of Assembly is applicable which enjoins them to repair all county bridges when “dangerous or impassable from decay.” If we comprehend the case, this bridge is impassable from decay, and so is within the very words of the act. We cannot graduate repairs, and say slight ones shall be done, and large ones may be neglected. The legislature did not mean we should do this. They meant by repairs whatever was
Such is our construction of the Act of 1861, and of the duties of the commissioners, both under the act and without it. Mandamus is the spur by which the law moves them to their duty, and though the proceedings in this ease were not very formal, they are not excepted to on this ground, and we will reverse the judgment below, and remand the record with directions to award a peremptory mandamus.
