23 Fla. 632 | Fla. | 1887
delivered the opinion of the court:
I. The fourth ground of the demurrer introduces matter of fact which does not appear upon the face of the alternative writ, and is, therefore, not within the province of a demurrer, and cannot be considered. G-ould’s Pleading, Ch. 2., sec. 43 ; Ch. 9, sec. 2.
II. The proposition of law urged under the third ground of the demurrer is, that the municipal corporation of Palatka Heights has exclusive jurisdiction of that part of the Brown’s Landing road within its territorial limits. If the County Commissioners have been deprived of their jurisdiction over this part of the road by the establishment of this town, they are not subject to the remedy sought against them, and the writ was properly dismissed. Whether they have been so d'eprived depends upon the legislation bearing upon the subjects of public roads and municipal corporations. 2 Dillon’s Mun. Cor., sec. 676. The intention of the Legislature, as manifested by the statutes, must control.
The act of Eebruary 16th, 1872, defining the duties of County Commissioners, provides that they shall have power
The municipal corporation act of 1869, as amended by section 23, of the act of March 8,1877, (chapter 3024) provides that the city or town council shall have power to regulate, improve, alter, extend and open streets, lanes and avenues, to cause encroachments and obstructions, decayed buildings and ruins to be removed * * and to regulate and control the grading, construction and repairs of the streets, pavements and side walks ; * * and to construct bridges, establish ferries and fix the rates of ferriage and tolls. See. 15, Act 1869. Municipal corporations are vested with power to levy and collect taxes for these and other municipal purposes.
We are not satisfied that it was the intention of the Legislature that the mere establishment of a town or city under our municipal corporation act should, of itself, suspend the power of the county road authorities over that part of an established public road which might be covered by the municipality. There is certainly nothing in the language of the act expressly declaring such an intention upon the part of the Legislature, nor is there, we think, anything from which it can properly be inferred. Though all public roads and all streets are public highways, yet neither
The reasoning of the Missouri decision is, that if the jurisdiction of the County Court over the road was divested by provisions of the town act, it was only by implication and that the language of the town act did not necessarily operate a suspension of their general control over the subject of roads within the town limits, and that it should not be construed to have the latitudinous effect contended for.
The only questions presented by the record are whether the part of the road covered by the town of Palatka Heights is abolished as a public road of the county ; and if not, whether the powers, duties and functions of the county road officials are suspended as to such part of the road ? Our answer to these questions is in the negative. It was not the intention of the Legislature that the people should be deprived of a great public convenience, established and maintained at their expense or by their labor, without providing for the maintenance of a compensating convenience. The admission that county road officers cannot lay out new roads in cities and towns, a question not before us, does not concede that the people of a county are to be deprived of their existing roads or of the power to keep them up, by the mere establishment of a city or town.
III. The remaining grounds of the demurrer are based upon the duty of the railroad company, under the statute, to restore the highway. Our views as to what this duty is are expressed in the case of the Palatka & Indian River Railroad Co. vs..The State, decided at the present term.
Whatever the legal duties of the railroad company may be, they do not relieve the County Commissioners or other officials from the performance of their own statutory duties in the premises. This is held by all the cases. Wellcome vs. Inhabitants of Leeds, 31 Maipe, 313; State vs. Gorham, 37 Maine, 451; Currier vs. Lowell, 16 Pick., 170; Richards vs. County Commissioners, 120 Mass., 401; Eyler vs. County Commissioners Alleghany County, 49 Md., 257 ; Batty vs. Town of Duxbury, 24 Vermont, 155 ; People vs. N. Y. C. & H. R. R. Co., 74 N. Y., 302; People vs. D. & C. R. R. Co., 38 N. Y., 153 ; Farley vs. C. R. I. & P. R. Co., 42 Iowa, 234.
Mandamus is the proper remedy. High on Extra. Rems., sections 413, 416, and authorities cited. See also 57 Ill., 307 ; 93 Ill., 189 ; 22 Fla., 29.
The judgment of the Circuit Court is reversed, and the case remanded for further proceedings not inconsistent with this opinion.