72 Wis. 629 | Wis. | 1888
The bridge in question was constructed by the Wood Count}'' Bridge Company under its charter, on section 17, in township 22 north, of range G east, in Wood county, some time prior to September 1, 1867. The charter authorized the county to purchase the same and its appurtenances, including toll-house, and the soil or landing places upon which the ends of the bridge should rest, and the right of way thereto, any time after September 1, 1872. Secs. 1, 6, ch. 178, P. & L. Laws of 1860. Accordingly, such purchase was made in March, 1873. The charter provided that the franchises granted to the company thereby should
Under these two acts it is very obvious that the county was prohibited from building’ any such bridge on section 8 until after it had exercised its option and actually purchased the bridge constructed by the Wood County Bridge Company. But the act of 1873 goes still further, and in effect precludes the county from building any such bridge on section 8 until the levying of such tax or issuing of such bonds has been actually voted “ by a majority of the electors of said county.” True, the supervisors might take the preliminary steps prescribed, and submit the question of levying such tax or issuing such bonds to a vote of such electors; but that is the extent to which coei’cion could now go, if at all, and the result.would be uncertain, and might turn out to be entirely futile. Such being the authority, or rather want of authority, in the county board, in relation to building a new bridge on section 8, there would seem to be no force in the argument advanced against the awarding of a mandamus, if the relators are otherwise entitled thereto, b‘y reason of a supposed discretion in the board either to build such new bridge on section 8 or to rebuild such bridge on section 17.
The question recurs whet her, under the circumstances disclosed by this record, the law imposes upon the county board the imperative duty of rebuilding the bridge on the old site. As observed, the charter provided that upon the purchase of the bridge by the county the same should 'become a free bridge. By such purchase the county became the owner, with the exclusi ve right of control, subject to the public user of the same as a free bridge: and consequently it was held by this court that the county was bound to keep the bridge in repair. State ex rel. Neeves v. Wood Co. 41 Wis. 28; Bishop v. Centralia, 49 Wis. 674. Such duty was there held to be compellable b}r mandamus.
There is another reason why that section should not apply to the levying of a tax for building a bridge over a navigable river like the Wisconsin. There is another section of the statutes which, within certain limitations,
By the Gourt.— The demurrer to the return is overruled, and the relation is dismissed.