dissenting. Conceiving that the majority opinion in this case has gone too far, I feel constrained to dissent, and in deference to that opinion of the public who may be concerned, in a further investigation of the matter I will submit the reasons upon which I base this action.
It is to be noted in the first place that the liability adjudged is; one of implied, assumpsit by a municipal corporation against a county. Heretofore it has been understood, that such actions- do» not lie; that, the *131county is an integral part of the State government, and is not liable to a suit, except by express authority of a statute or by necessary implication of a statute. It could not be sued at all at the common law. Nor is it a fact that the city of Flemingsburg has the right under any statute to incur a debt against the county. The public highways of a county are under two bodies of control, namely, those in the city of the city authorities, and those in the county of the county authorities. Each is answerable for the condition of the highways committed by statute to. it, respectively. The majority opinion is rested upon the authority of three previously adjudged cases in this court, namely, a manuscript opinion delivered in the case of Trustees of Elizabethtown v. Hardin County, filed February 9, 1877, Leslie County v. Wooten, 115 Ky. 850, 75 S. W. 208, 25 Ky. Law Rep. 217, and Nelson County v. City of Bardstown, 124 Ky. 636, 99 S. W. 940, 30 Ky. Law Rep. 870.
Elizabethtown v. Hardin County and Leslie County v. Wooten may be regarded as deciding the same question. Both of these cases are rested upon a statute which expressly requires the fiscal courts of a county to repair public bridges within the county and forming a part of the county highways. In each of the eases a mandamus was sought against the fiscal court to put it in action and to require it to perform a plain statutory duty about which it had no discretion, except as to the character of repairs it had to make upon the bridge and the amount of money that it might elect to spend therefor. Accepting the proposition as settled and as sound that the writ of mandamus will issue at the instance of any interested suitor against the fiscal court of a county to- require it to execute an express public duty, still neither of the *132cases cited intimate that anybody else than the fiscal court could either execute the statutory duty or exercise a discretion as to the manner of its execution. It is far beyond anything hinted at in either of the casesi to hold that the judgment and discretion of a judical officer, of á circuit judge, or of an appellate court, could be substituted in such matter for that vested by the Legislature in the county governing body known as the “fiscal court.” In each of the cases 'alluded to the fact was that within the corporate limits of a town was a bridge which constituted a material and essential part of a county highway. It had been erected in whole or in part by the county, and had been maintained by it. The court held that bridges within the town, constituting essential parts of the county system of highways, should be maintained by the county at large. In Leslie County v. Wooten it is recited.: “It appears that the fiscal court has heretofore ordered all the work which has been done in keeping'this road in repair, and for this purpose has appointed overseers year after year, 'Under the authority ábove cited (Elizabethtown v. Hardin County) we have reached the conclusion that the bridge constitutes a part of the county road, and that it is the duty of the fiscal court to rebuild it.” The court then reviewed the authorities holding that the statute imposed expressly upon the fiscal courts the duty to repair county bridges, and that such duty was one that a court could require by mandamus to be executed at the suit of any interested party. But it was pointed out in Leslie County v. Wooten, citing and approving Com’th. v. Boone County Court, 82 Ky. 632, 6 Ky. Law Rep. 755, that mandamus would not lie to compel the fiscal court to build a new bridge, notwithstanding the section of the statute, which pro*133vides (section 4345 of the Kentucky Statutes of 1903) that it shall he the duty of the fiscal court to make immediate provision for an emergency, includes the building of new, as well as repairing of old, bridges. In Clay City v. Roberts, 124 Ky. 594, 99 S. W. 651, 30 Ky. Law Rep. 820, the same case was cited with approval. The court refused the mandamus to compel the municipality to construct a new bridge, drawing a distinction between the construction of a new and the reconstruction of an old one.
We now come to the Nelson County case. That case was an agreed action filed in the circuit court for the construction by that court of the sections of the statute concerning the obligation imposed by statute upon a town of the fifth class and the county in which it was situated respecting the keeping up of the public highways which traversed both of the units. A mandamus was not sought in that case. Neither municipality was refusing to do what it had to do. On the contrary, they were seeking light as to what their legal duty was in order that they might do it. The sole questions presented were, first, whose duty was it to keep up that part of the turnpike formerly owned by private corporations, but recently acquired under the free turnpike act, which now lay within the incorporated towns? The court answered that query upon the authority of Board of Council of Danville v. Fiscal Court of Boyle County, 106 Ky. 608 21 Ky. Law Rep. 196, 51 S. W. 157, to the effect: “That the turnpikes, when purchased by the fiscal court, became public highways; the part lying within the city, being a public way, should be controlled by it; and the part without the city, falling within the fiscal court’s jurisdiction, should be controlled by it.” The second question submitted by that case was as to which of *134the municipalities was under the -duty to keep in repair a bridge across a stream which constituted the dividing line between the city and the county. Section 3643 of the Kentucky Statutes of 1903, governing cities of the fifth class, was cited as the chart of the court’s deliverance on this subject, although the word “bridge” was not used in that section, dealing with streets, avenues, and highways. This court then held: “This statute is broad enough to include everything made necessary for the sufficiency of the public ways for purposes of travel, and, while the statute does not use words declaring the -power of the city council exclusive, the necessary- effect of the statute is the same as- if such words had been used.” The bridge was differentiated from a street. Elizabethtown v. Hardin County and Leslie County v. Wooten were cited as authority. It was pointed out in that case that the bridge was not required for purposes of urban travel, but only for the travel to and from the county; that, while nominally within the corporate limits, practically it was outside of such centers, of population as required considerable use of it by the urban population. Eor that reason it was held to be a part of the county highways, and that the county fiscal court was under the duty to keep it in repair.
It should be noted -at this point that the facts of the case at bar are materially different from those in any of the cases above discussed. Here the bridge was not built by the county, was never owned by it, and the fiscal court never assumed or exercised any control over it. Furthermore, this bridge is in the heart of the city, is used mainly by its own population for their convenience, and only incidentally by the people from the country. If the case had merely stopped at the point of saying upon the authorities of *135the eases above cited that the county was under the obligation to keep this bridge in repair, the result would not have been so objectionable. In that event, under the authorities indicated, a mandamus would lie at the suit of the citizens of the town or county, or at the suit of the town, against the fiscal court to require it to perform the duty held to be imposed upon it under the statute to keep the bridge in repair. But the case does not stop there. The town did not pursue the course adopted by the plaintiffs in any of the cases above cited. It did not resort to the courts to require the fiscal court of the county to act in discharge of its statutory duty, and to exercise in its discharge such discretion as was vested in it by law. But this city, usurping the jurisdiction and functions of the fiscal court, contracted a debt on be¡half of the county. It exercised a discretion vested by statute in the fiscal court as to what kind of repairs should be made upon a county bridge, if this be a county bridge, and has in fact erected a handsome and expensive concrete bridge at a cost of more than $3,000, over an insignificant stream — an ornate affair that would speak well for the pride and public spirit of the city, .were we not reminded by this suit that it expects the bill to be paid by the county at large.
The opinion is an anomaly, furthermore, in that it asserts obiter dictum that, notwithstanding this bridge is a part of the county highway, yet for failure to keep it in repair — a neglect of duty in part at least by the fiscal court, as the opinion holds, the city would be liable to one injured thereon. The converse perhaps would seem to be true — that, if the county should voluntarily execute the duty of keeping the bridge in repair, but do so in such manner as that an employe or ¡other person were in*136jured thereby, the city would be liable in damages for the injury. In Town of Paintsville v. Commonwealth, 21 Ky. Law Rep. 1634, 55 S. W. 915, it was said: “When a public way is opened through a city for the use of the public, and is accepted and used by the city, such way, and any bridge forming part of it, becomes a public way of the city, and, if necessary and for the use of the citizens, such bridge must be kept in repair, and must not be suffered by the city to become and remain unsafe for travel. The town authorities have control over it. Section 3704, Ky. Stats. 1903. The citizens of the town are exempt from working upon the county roads outside the town limits. Section 4308. The city, for governmental purposes, is separate from the remainder of the county.. Section 1851.” And in Clay City v. Roberts, supra, it is said: “There is a special statute governing the replacing of county bridges which have been lost or destroyed, but this statute is not applicable to cities and towns, nor does it refer to or treat of bridges within the corporate limits of a town which have been destroyed. ’ ’ It was decided' that mandamus would not lie against the town to require it to repair a bridge within its limits and .forming a part of its system of highways.
We then have this state of case under the opinions of this • court: That a bridge within a town which forms a part of a general highway traversing a county should be rebuilt,' in case- it falls into disrepair, in part by the town and in part by the county; that the chancellor will judge as to how much each municipality should contribute; that as to the county mandamus will lie to compel the fiscal court to perform its part of its duty, but that as to the town mandamus will not lie to require it to perform its *137part; and, furthermore, if the county fails to perform its duty, instead of resorting to mandamus, the city may act for the county and incur for the latter a very heavy expense. This confusion, which is further extended by the opinion in this case, is the result, in my Judgment, of an attempt on the part of the court to relieve a situation which calls for some remedy, but which has not been provided for by legislation.
Judges Nunn and Settle, concur in this dissent.