
    The People ex rel. E. Devillo Root, as Supervisor, etc., Resp’t, v. The Board of Supervisors of the County of Steuben, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed May 21, 1895.)
    
    1. Bridge—Liability oe county.
    Under the Highway Law, a county is bound to contribute to the expense of a free public bridge constructed by a town wholly within its-bounds, and not crossing border lines, when the cost exceeds one-sixtli of one per cent, on the assessed valuation of the taxable property of the town.
    2. Same—Within village limits.
    A bridge, located within the limits of an incorporated village, which is within a town, is a town bridge within the statute, where the village charter excepts such bridge from the jurisdiction of the village authorities and leaves it under the direction and control of the commissioners of highways-of the town.
    Appeal from order of the general term of the supreme court in the fifth judicial department, entered upon an order which affirmed an order of special term granting an application by the relator for a peremptory writ of mandamus.
    The writ required the board of supervisors of Steuben county to levy upon the taxable property óf the county the sum of $1,840.03, part of the expenses incurred by the town of Addison for bridge purposes during the year preceding November 1, 1893. It appeared from the application that the bridge crossing the Canisteo river in the village of Addison, in the town of Addison, in 1892, became unsafe and was condemned by the state engineer and surveyor, and upon application of highway commissioners of the town the town board authorized the construction of a new bridge in place of the one condemned; that a new bridge was-built; that the cost of the new bridge and of repairs upon other bridges of- the town during the year mentioned was $7,144.62. In November, 1893, highway commissioners of the town made and delivered to the supervisor of the town a verified statement pursuant to section 132 of the Highway Law (chap. 568, Laws of 1890) of the expenses incurred in the erection and repair of bridges in the town during the previous year, showing that the county was indebted to the town in the s.uin of $1,840.03, that being one-third of the excess of said expenditure above one-sixth of one per cent, of the total assessed valuation of said town for the year 1893. The supervisor of the town, pursuant to section 133 of the Highway Law, presented the statement to the board of supervisors at its session in November, 1893, and the board disallowed the claim on the ground that it was not, nor was any part thereof a legal charge against the county.
    On the return of the order to show cause, the board of supervisors appeared by counsel, and after hearing the parties the peremptory writ was granted requiring the board to convene and levy upon the taxable property of the county a sum sufficient to pay its share of such expenditure. The main controversy is as to the legal liability of the county of Steuben to pay any part of the cost of the bridge over the Canisteo river, the bridge being wholly within the town of Addison, and not upon its boundary. Section 130 of the Highway Law is as follows:
    “Section 130. Where town or county expense. The towns of this state, except as otherwise herein provided, shall be liable to pay the expenses for the construction and repair of its public free bridges, constructed over streams or other waters within their bounds, and their just and equitable share of such expenses when so constructed over streams or other waters upon their boundaries, except between the counties of Westchester and New York; and when such bridges are constructed over streams or other waters forming the boundary lines of towns, either in the same or adjoining counties, such towns shall be jointly liable to pay such expenses, except that when the whole expense in any one town, for any one year, for the construction, care, maintenance, preservation and repair of its bridges, shall exceed one-sixth of one per centum on the assessed valuation of the taxable property of the town for that year, the county in which such town is located, shall then pay not less than one-third part of such excess. Bach of the counties of this state shall also be liable to pay for the construction, care, maintenance, preservation and repair of public bridges, lawfully constructed over streams or other waters forming its boundary line, not less than one-sixth part of the expenses of such construction, care, maintenance, preservation and repair.”
    Section 131 of the Highway Law, which was repealed by the County Law (Chap. 686 of the Laws of 1892), authorized the board of supervisors, when it should appear that any town will be unreasonably burdened by erecting or repairing any necessary free bridge “in such town or on its borders,” to cause a sum not exceeding $2,000 in any one year, “in addition to the amounts provided for in the last preceding section,” to be raised and levied by the county to pay such portion of the expense of such bridge as the board may deem proper. Section 63 of the County Law took the place of section 131 of the Highway Law repealed. Section 63 is as follows : “County aid to towns for the construction and repair of bridges. If the board of supervisors of any county shall deem any town in the county to be unreasonably burdened by its expenses for the construction and repair of its bridges, the board may cause a sum of money not exceeding $2,000 in any one year to be raised by the county and paid to such town to aid in defraying such expenses.”
    
      M. Rumsey Miller, for app’lt; John F. Parkhurst, for resp’t.
    
      
       Affirming 62 St. Rep. 691.
    
   Andrews, Ch. J.

The important question in this case is whether, under the Highway Law, a county is bound to contribute to the expense of a free public bridge constructed by a town wholly within its bounds, and not crossing border lines, when the whole cost exceeds one-sixth of one per centum on the assessed valuation of the taxable property of the town. The question depends upon the true construction of section 130 of the Highway Law (Chap. 568 of the Laws of 1890). The courts below have answered this question in favor of the town and against the county. It is claimed in support of this conclusion that, the reason able construction of the section makes a county liable to pay one-third of the total bridge expenditure of any town in any one year, for bridges wholly within the town or otherwise, in excess of the one-sixth of one per cent, on the assessed valuation of the property of the town. It is on the other hand contended in behalf of the county of Steuben, that the section in question imposes no duty upon a county to contribute to the expense of erecting a bridge which is wholly within a town, but that the compulsory clause in the section applies only to bridges on streams which divide towns in the same county, or towns in different counties. In other words, that the right to demand contribution from the county only exists when the bridge crosses boundary lines either of towns or counties, or both.

At the time of the passage of the act of 1890 the compulsory obligation of a county to aid in the construction of bridges was limited to bridges across county boundaries. From the foundation of the state government the duty of maintaining highways and bridges has been cast on the towns, and not, as in England, upon counties. But from time to time special statutes were passed changing the rule in special cases. See Hill v. Supervisors, etc., 12 N. Y. 52. The legislature also recognizing the hardship which would frequently arise in imposing the whole burden of maintaining a bridge upon a particular town, at an early day authorized boards of supervisors to grant relief in their discretion to an overburdened town to the extent of one thousand dollars a year, and to put upon the county a charge to that extent for the benefit of a town. This power, first given by chapter 186 of the Laws of 1801, the exercise of which was made subject to revision by the court of common pleas on application of a commissioner of highways dissatisfied with the determination of the supervisors, was subsequently confirmed and continued by the Revised Laws of 1813 (Vol, 2, p. 282, section 33), and later by the Revised Statutes (1 Rev. St. 524, section 119 et seq.), By chapter 482 of the Laws of 1875 a further advance was made for the relief of towns, and, in case of a bridge crossing a county line, each of the counties interested was made absolutely liable to pay one sixth of the expense thereof. This brief reference to the prior legislation shows that when the Highway Law of 1890 was enacted the obligation rested upon the towns to construct bridges, whether wholly within the town or connecting two towns within a county, or towns in different counties, and that no compulsory obligation rested upon a county to aid in constructing bridges, except in the single case of a bridge crossing a county line. In the case of a bridge wholly within a town, or connecting two towns in the same county, the board of supervisors possessed discretionary power to aid to the extent of $1,000 a town which it deemed overburdened. The Highway Law of 1890 consolidated and revised the prior legislation of the state upon the subject of highways. It was not strictly a consolidation of the prior statutes. Hew provisions were en-grafted on the antecedent law for the purpose of improving the highway system. It is conceded that section 130 enlarged the preexisting liability of a county by imposing an absolute obligation upon the county to pay a proportion of the cost of a bridge across the border line of two towns in the same county, in case of an excess of cost to each town beyond one-sixth of one per cent, of the assessed valuation of the property therein. But it is insisted that the obligation was not imposed in respect of a bridge wholly within a town, however large an expenditure might be required for its construction. As to a town so situated it is insisted the only resource is an" application to the discretion of the board of supervisors. It is difficult to suppose that a construction of section 130, which imposes an imperative obligation upon a county, in case two towns in the same county are interested in the bridge, each of which must bear its equal share of the burden, and frees it from obligation, when a single town happens to be traversed by a stream, not upon its boundary, over which a bridge is required, could have been intended by the legislature. If any greater measure of relief was required than was given under prior legislation, the single town upon which the duly to build a bridge alone rests, would seem to have the strongest claim to the consideration of the legislature and of the county. The section is not free from obscurity. It recognizes in the first clause the general principle of our legislation, that the construction of highways and bridges is a town duty and charge, but the declaration of liability is coupled with the words, “ except as herein otherwise provided." There is no exemption from liability to be found in the section, applicable to the case of a bridge constructed within a town, unless the obligation imposed on the county by the subsequent clause applies to such a case. Upon reading the first clause with the words of exemption, it would naturally be expected that there would subsequently be found some exemption from liability which would furnish a reason from their insertion. There is plausibility in the contention that the words in the subsequent clause, “except that when the whole expense in any one town for any one year, shall exceed,” etc., relate exclusively to the matter immediately preceding, namely, bridges constructed on boundary lines. But the words of the exception are very general and comprehensive. The county is to be liable “when the whole expense to any one town” shall exceed the sum stated. There is no discrimination in the language between the towns, or as to the character of the bridges. We think that the obscurity arising, from punctuation and the arrangement of the clauses is fairly dispelled by a consideration of the whole section and the presumed legislative purpose, and by the consideration that the construction-.claimed by the county would lead to an unjust discrimination. The general scope of the section is, we think first, to declare the general liability of towns in respect of highways and bridges ; second, to declare the liability of towns as between themselves as to bridges constructed upon boundary lines; third, to impose upon the county a fixed liability based upon "the relation between the cost of bridges and their maintenance, and the taxable values of the town irrespective of boundary lines; and fourth, to impose an added liability as to bridges erected on county lines. Section 131, since repealed, but which may properly be referred to in aid of the construction of section 130, strengthens the interpretation given by the courts below to that section. It authorized the board of supervisors to levy upon the county a sum, not exceeding two thousand dollars in any one year, to relieve any town "unduly burdened by the erection of a bridge, and declares that this is “in addition to the amounts provided for in the last-preceding section.” The additional aid was authorized to be given to any town, and not to border towns or towns divided by a stream only. The language of-section 131 implies that the towns had received benefits under section 130, and this aid was to be “in addition." We find nothing in the County Law of 1892 which affects the construction of the act of 1890.

There are some technical questions raised by the defendant: (1) It is claimed" that the bridge being within the village of Addison, although the village is within the town, it was not a town bridge within the statute. The answer is that by the village charter (Laws of 1873, chap. 200) the bridges over the Canisteo river and Tuscarora creek are. excepted from the jurisdiction of the village authorises and are placed under the direction and control of the commissioners of highways of the town, “to the same extent as if the act had not been passed.” (2) We think the claim "presented to the supervisors sufficiently indicated that the claim was made in behalf of the town of Addison for an expenditure made by the town in erecting a free public bridge in the village and town of Addison under the authority of the town. If there was any technical informality, or any incompleteness in the. proof presented to the board of supervisors, the rejection of the claim was placed on the broad ground that the claim was not one which in its nature created a legal charge against the county.

We find no error which calls for a reversal of the order, and upon the main and important question we concur with the courts below.

The judgment and order should be affirmed, with costs.

All concur, except Haight, J., not sitting.

Judgment affirmed.  