People ex rel. Canton Bridge Co. v. Board of Town Auditors of Horicon

Kellogg, J. (concurring in result):

The Highway Law in force in 1898 when this bridge was built, at , section 130, made the towns of the State liable to pay for the construction and repair of their free' bridges, and made towns liable jointly for the construction and repair of bridges over town lines. (See Laws of 1890, chap. 568, § 130, as amd. by Laws of 1895, chap. 416.) The other provisions of the statutes relating to the building of bridges wholly in the town and those over the line of adjoining *175towns must not be confused, as they represent two entirely different systems.

With reference to bridges in the towns, the power of the highway commissioners is found in subdivision 7 of section 4 of the Highway Law (Laws of 1890, chap. 568), and is confined to the expenditure of such moneys as the town has raised and collected for that purpose. (People ex rel. Everett v. Board of Supervisors, 93 N. Y. 397.) The other subdivisions of that section of the statute are interpreted as defining the manner in which the commissioners shall apply such moneys to the highways and bridges of the. town.

Section 10 of the Highway Law (as amd. by Laws of 1895, chap. 606), entitled “ Extraordinary repairs of highways or bridges,” makes it the duty of the commissioners, in the cases of emergency therein provided, to repair or rebuild .the bridge, and they may incur an obligation therefor which must be met by the town.

The bridge in question is not governed by the above provisions, but by section 134, entitled Joint liabilities of towns and their joint contracts,” which provides that whenever two towns' shall be liable to make or maintain a bridge,-it shall be done at the joint expense of the towns without reference to town lines, and continues: “ The commissioners of highways of all the towns, or of one or more of such towns, the others refusing to act, may enter into a joint contract for making and repairing such bridges.” This section charges upon the commissioners the duty to build the bridge, and upon their towns obligation to pay for the same. The duty of the commissioner is without qualification, and it is immaterial whether he has or has not funds or whether the electors of the town approve or disapprove. The position is emphasized by the provision of section 135, entitled “ Refusal to repair,” by which the commissioners of one town may request those of the other town to join in building or repairing such a bridge, and if they do not consent in writing within twenty days the commissioners making the request may build or repair the bridge, and, in the name of the town, sue the other town for its share of the cost; ' -

Section 136 provides that three freeholders of either town -may apply to the court for an order requiring the commissioners to act and build or maintain the bridge, and each town is liable for its. share of the cost thereof. Under this section it will be noted that *176■ if the officers and the electors of both towns object to building, the-bridge three freeholders may force upon the towns the building of tlie bridge and .paying therefor. •

Section 142, entitled Refusal to repair bridge,” provides that when such' a bridge becomes unsafe, or has fallen, down, or is' destroyed by floods, or otherwise, if the commissioners of highways • of the adjoining towns after notice neglect or refuse to repair or •.rebuild the-bridge, any person or corporation may do the sarne'and.charge the expense thereof upon, the towns.

The joint liability provided for by the statute requires each town to pay one-half. (Lapham v. Rice, 55 N. Y. 472.) Section 69 of the County Law (Laws of 1892, chap. 686, as amd. by Laws of 1896, chap. 178, and since amd.), entitled “ Authorize towns to borrow money,” provides that where a town is liable for building, a bridge in the town or on its borders an application may be made pursuant to a vote of the electors or the request of the cotnmissioneré of highways and town board, requesting the board of. supervisors to permit' the town to borrow money therefor,.and then provides that if the bridge shall be situated in two'or more towns in the same county the board shall apportion the expense among such towns in such proportion as shall be just. The board of supervisors in such case is without power to act except at the request of the electors or of the commissioners and town board, and the power to apportion the expense between two ..towns is an incident, and accompanies the permission of the town to borrow money. In this case no such request Was made, and the board of supervisors had no power to make any . direction as to the payment, and the ordinary rule obtains that each .. town is chargeable with one-half the expense. We may.assume that ■ in case the expense of the bridge is so large ithat it is necessary for' either town to borrow money therefor, it is deemed a sufficient reason to permit the board to determine in what proportion the towns shall bear the ex'pénse.

Chapter 330 of the Laws, of 1908,- entitled. “An act in relation to highways and bridges, constituting a consolidation of the highway. laws, and providing for.a State department of highways and for -the. construction and maintenance of State and county • highways,” is, as it purports to be, a consolidation o.f the highway laws then exist-, ing, and, unless it clearly appears otherwise, we may fairly assume *177its provisions present a fair legislative construction of the laws theretofore existing. At section 254 we find a substantial re-enactment of section 134 of the prior law, except that after declaring that such bridges shall be built and maintained at the joint expense of such towns, without reference to town lines, it continues, “ except where the board of supervisors, has otherwise apportioned such expense as provided in section ninety-seven.” Section 97 is a substantial re-enactment of section 69 of the County Law. (See, also, Laws of 1900, chap. 12; Laws of 1903, chap. 469, and Laws of 1907, chap. 81.) It does not, however, permit the board of supervisors to apportion the expenses except upon an application of both towns. The law of 1908 does not, therefore, change in any material respect the rule laid down in Lapham v. Rice (supra), but it clearly indicates the continued existence of that rule.

We are, therefore, safe in saying that the statutes in force at the time in question charged the expense of constructing this bridge, one-half upon each town, unless in an application to the board of supervisors for borrowing money, the board determines that the expense should be borne in different proportions. The general views of the statutes here suggested are in harmony with Surdam v. Fuller (31 Hun, 500); People ex rel. Morrill v. Supervisors (112 N. Y. 585, 590), and Marshall v. Hayward (74 App. Div. 27).

Colby v. Town of Mt. Morris (100 N. Y. Supp. 362). is not an authority contrary to these views. The bridge there was authorized by the local authorities and the vote of the two towns, and both towns applied to the board of supervisors for permission to build the bridge and bond the towns therefor, which permission was granted, the town of Mt. Morris being permitted to issue bonds for $16,000 and the town of Leicester for $10,000. The plaintiff brought an action in equity to recover the contract price of the bridge. The court states : “ The only controversy being the proportion which each town should pay.” The decision was: “ The towns having by their proper officers applied to the board of supervisors for-leave to donstruct the bridge and to borrow the money therefor, of which leave they have availed themselves, tlie towns are concluded by apportionment of the expense made by the board.” The other questions discussed were not in the case.

*178. Section 68 of the County Law (as amd. by Laws of 1896, chap. 995), entitled “Bridges over county .lines,” evidently was intended to relate to. such bridges and none others. It apparently contemplates-that bridges over county lines may in some cases be chargeable to the counties; or the counties and towns, and- in other cases to the towns, and it uses general language so as to cover all such cases.

When we consider the origin .and the place of this section in the .statute; and have in mind -that 'the Highway Law has fully provided for bridges over the lines, of towns in the same county, this section may be-fairly confined within the terms of its caption as. relating to bridges over county lines only.

Apparently the different legislative provisions' were based upon the idea, that there are liable to be difficulties and delays in the construction of bridges which are charged upon two towns, and the Legislature charges upon the proper town officers the absolute duty of building such bridges. It is not contemplated in any such case that there shall be. a vote of the people upon the subject,, except the -application to borrow money must be made either upon a vote of a town meeting or upon the written request of the commissioners and town board. The question of funds is not material, as one town might be-in funds and the other not; one town might "be willing to bond itself or vote a tax and the other not. The commissioners of one town are given authority .to. compel the other town to act, and the want of-funds, or the objection of .the electors of the-town to the bridge is no ’defense. Neither town may want to rebuild or maintain the bridge, the electors- and the commissioners of both towns may . be opposed to it,- but any three freeholders may compel them to act and charge the expénses upon .the towns without regard to whether they have funds in hand. The town of Horicon, in this -case, was forced into action by the notice under section 135 of the Highway Law, and rather than permit the other -town to determine every question with reference'to-the bridge, it properly joined in the. enterprise.Whether the joint action of the officers, of the two towns was-wise Or unwise we cannot say; but they were authorized to act; they built the bridge without objection, the proceedings were . authorized by the-statute and. the defendants aye liable. I,therefore, concur for affirmance.

-.Sewell, J.,' concurred.