115 Ky. 850 | Ky. Ct. App. | 1903
Opinion op tiie court by
Affirming.
The appellees, who are citizens and taxpayers of Leslie county, Ky., instituted this action in the Leslie Circuit Court, in their own behalf, and in behalf and for the benefit of all the other residents and citizens of the county, to obtain a judgment awarding them a writ of mandamus against the appellants, Leslie county and the members of the fiscal court thereof, to compel them to repair a bridge constituting ia part of .one of the public highways of the county. The facts are these: The city o.f Hyden, the county seat of Leslie county, is a city of the sixth class, and contains about 300 inhabitants. It is situated at or near the point where Rockhouse creek empties into Middle Fork of Kentucky river. The city lies on both sides of Middle Fork and of Rockhouse creek. It has no streets or sidewalks, but there are turn county roiads running through its corporate limits, intersecting each other. One of these roads, running from north to south, crossed Middle Fork, within the limits of Hyden, by means of a bridge. 'This bridge, which was built some years ago, partly by private subscription and partly by a donation from the fiscal court, was, prior to the institution of this action, swept away by high water; thus'depriving the citizens of the county and the traveling public of a safe and convenient mode of crossing the river, and making the highway at this point practically useless. The attention of the members of the fiscal court was called to the destruction of the bridge and the necessity of its being rebuilt, but they refused to take any
For the appellants it is contended, first, that the charter of cities' of the sixth class puts all the highways and bridges within their corporate limits under the exclusive charge and control of the municipalities; and, second, that mandamus will not lie .against the fiscal count to require them to iact in a matter such as is inolved in this litigation.
A question precisely similar to the one here involved arose in the case of Trustees of Elizabethtown v. Hardin County Court (MS. opinion filed Feb. 9, 1877). In that case, .a bridge, which wais within the corporate limits of Elizabethtown, and which constituted a part of one of the county roads running into the municipality, had become out of repair, and the trustees' of the city instituted an action against the county court of Hardin county to compel them to repair the structure. The lower court dismissed the bill. Upon appeal this court said: “Begarding the county .court a.s controlling the road, like any other public highway in the county, it is .still certain from the admitted facts that this bridge is indispensable for public use, or at least made necessary by the wants of the public. It is on the principal thoroughfare traveled by one portion of the inhabitants of the county in going to and returning from the county seat and the railroad depot. It is a bridge'constructed on a highway, seventy feet long and essentially a county bridge. The county court is required by statute to erect such structures on its public ways when required for public use. The citizens of the
We come now to a discussion of the question as to whether or not mandamus is the proper remedy for the enforcement of this duty. Section 1840 of the Kentucky Statutes of 1899 is as follows: “The fiscal court shall have jurisdiction to appropriate county funds authorized by law to
by the testimony was unquestionable.” In the case of Hammar v. City of Covington, 3 Metc., 494, am, action had been instituted for a mandatory injunction against the municipality, to require it to repair the public highways alleged to have been allowed to fall into ruin and decay. The court held that it was the duty of the municipality to keep the streets and highways in repair, and that the relief sought should have been granted. Section 4345 requires, in the case of am emergency like the one involved here, that the county judge shall call together the fiscal court, and lay the matter before them, and then it shall be their duty to make immediate provision for the emergency. Here the bridge had been swept away by a flood fide, and the use of the highw’ay rendered both unsafe and inconvenient. • The matter had been properly brought to the attention of the fiscal court, and .they had refused to perform their plain duty in the premises, as pointed -out by the statute.
The circuit judge, upon the facts shown, properly awarded a writ of mandamus. Wherefore the judgment is affirmed.