On Petition eor a Rehearing.
Woods, J.— The appellant asks a rehearing “upon the question of the validity of the contract, because a survey and estimate of the work Were not made.”
Counsel for the appellant says: “As I understand the opinion of the court, the approach is a part of the bridge, and the repair thereof is within the purview of the powers of the board of commissioners, but that the exercise of that power is limited to cases where plans and specifications have been first made. The duty to cause repairs by section 11 of the bridge law (1 Davis R. S. 240) is mandatory. But, as I understand the opinion of the court, a contract either to build or repair a bridge is void unless plans and specifications have been first made.” And, after reference to and *241quoting from his former brief to show that the provision for plans and specifications is merely directory, the counsel ui’ges that the question whether the same is mandatory oh directory is far-reaching, and if held mandatory the decision overturns a long line of decisions, to the effect that “when the mode of exercising the power is not expressly prescribed and limited, it is directory merely. The Bank of U. S. v. Dandridge, 12 Wheat. 64; 1 Dillon Munic. Corp., sec. 373; The United States v. Fillebrown, 7 Pet. 28; Angell & Ames on Corp., secs. 294, 328, 697; The State, ex rel. The City of Columbus, v. Hauser, 63 Ind. 155.’ ’
We do not deem it necessary to dispute the importance of the subject or to question the conclusion contended for. It is enough that there is nothing in the opinion of the court, as delivered by Worden, J., which can properly be deemed to determine, or even indicate, a construction of the statute in respect to the proposition advanced by counsel. Whether, ■without first causing the plans and specifications to be prepared, a board of county commissioners can make a valid contract for the repair of abridge, is a query entirely foreign to the purpose for which reference was made in our opinion to the statute in question and a statement given of its provisions. Whether its provisions in the respect mooted are mandatory or directory merely, the statute stands as the rule of action for the commissioners in the matters embraced in those provisions, and any contract, by which the board may attempt to impose on itself a different or inconsistent rule of action in reference to those matters, must be held invalid. Such we deemed to be the contract in suit, and such we still deem it. If the law gives the commissioners a discretion in reference to plans and specifications, and as to imposing the expense of repairs upon the township, this contract, if upheld, takes away or at least embarrasses that discretion, and is therefore invalid. This is the argument of the opinion, and we adhere to it.
*242Another proposition may be advanced here : By law the board of commissioners of a county, upon proper application and procedure, has power to vacate or change the location of any highway. By such vacation or change of the highway which passes over the bridge in question, the appellee might be released from all liability, under the law, to keep up and repair this bridge and its approaches, but this -contract, if upheld, deprives the board of the right to exer- ■ cise this jurisdiction without incurring liability for damages for a breach thereof.
We have carefully reconsidered the argument made and • authorities cited by counsel for the appellant, but are able to perceive no good reason why a rehearing should be ^granted.
The petition is overruled, with costs.