
    The Commissioners of Defiance County v. Adolph Croweg et al.
    The building of a new bridge, where one becomes dangerous by decay, authorized by section 2 of the act of Máy 1, 1871, as amended April 26 1872 (69 Ohio L. 113), can not be regarded as the repairing of a bridge within the meaning of that section; and where the expense of such new structure exceeds $10,000, it is not excepted from the limitation of 'section 3 of the act (68 Ohio L. 117), requiring the question as to the policy of building such bridge, to be submitted to the vote of the qualified electors of the county; and the levying of a tax, or application of money, for the purpose of building such bridge by county commissioners, without complying with the provisions of that section, may be enjoined.
    ■Error to tbe District Court of Defiance county.
    Tbe defendants in error filed their petition in tbe Court of Common Pleas of Defiance county, to restrain the board of commissioners of Defiance county from constructing a bridge across tbe Auglaize river, at the foot of Hopkins •street, in the town of Defiance. Upon the application of ■the defendants in error, a temporary injunction was allowed. Upon the bearing of the case, this injunction was dissolved, and the action dismissed. From this judgment tbe defendants in error appealed to tbe District Court. At the March •term, a. d. 1874, of the District Court in Defiance county, the case, upon the agreement of the parties, was reserved for argument and decision, at tbe April term, a. d. 1874, of tbe District Court of Seneca county.
    Upon tbe hearing of the cause at tbe District Court in Peneca county, tbe plaintiff in error, the commissioners, were perpetually enjoined from expending any of tbe money of Defiance county in the construction of the bridge.
    On the trial in the District Court, a bill of exceptions •was taken, embodying an agreed statement of facts. So far as material to present tbe questions made in tbe case, tbe facts are as follows :
    In March,T873, tbe board of commissioners of Defiance county determined upon the construction of an iron bridge across the Auglaize river, in the town of Defiance, and, in June thereafter, located the bridge, at the foot of Hopkins street. In the execution of this purpose, the board adopted certain drawings, plans, specifications, estimates, bills for material, etc., for a double-track iron bridge, 410 feet long and 18 feet wide, with three stone piers, and stone abutments, and contracted for the building of these piers and abutmeuts for the sum of $19,800. The estimated cost of the superstructure is $20,450.
    There is a bridge across the Auglaize river at the foot of Hopkins street. This bridge is a wooden structure, with wood piers and abutments, built many years ago, and is now in a condition dangerous to public travel.
    The iron bridge is located immediately north of the wooden bridge. In building it, the wooden bridge will not be disturbed, but will remain open for travel, until the iron bridge is completed, and no part of the material of the woodpn bridge, or of its piers or abutments, will be used in the new structure.
    In June, 1873, the board of commissioners, upon examination of the wooden bridge, considered it unsafe, and determined to rebuild it, and for this purpose levied a special tax of one and one-half mills upon the total valuation of the taxable property of Defiance county. This levy, and the unappropriated bridge fund raised under general levies,, now in the county treasury, amounts to a sum near $40,000.
    The question as to the policy of building the iron bridge, or of restoring the wooden bridge, or of levying a tax, or appropriating any money, for either purpose, was not submitted to a vote of the qualified voters of Defiance county*
    There were many petitions presented to the commissioners for rebuilding the bridge at its old location, and more remonstrances against locating it at that place, and in favor of building the new bridge at another point, in connection with another street or road in the same town.
    The case came to this court on a petition in error to reverse the judgment of the'District Court.
    
      
      S. T. Sutphen, C. H. Scribner, Henry Hardy, and Hill Myers, attorneys for plaintiffs in error:
    No attempt was made to impeach the action of the commissioners by showing that they bad been influenced by improper motives. The matter was in the discretion of the commissioners. This the court will not undertake to control. Bowersox v. Watson, 20 Ohio St. 496; Cooper v. Williams, 4 Ohio, 285; Le Roy v. Mayor of New York, 4 Johns. Ch. 352; Champlin v. Mayor of New York, 3 Paige, 573.
    The principal question in this case arises upon the construction of sections 2 and 3 of the act of May, 1871. 68 Ohio L. 117.
    The proper construction of the language used in section 2 of the act of 1871, we think too plain for argument. The term “restoration,” in section 2, is used as the equivalent of the term “ rebuilding.” The bridge to be restored is a “destroyed” bridge — one consumed by fire, or carried away by a freshet; and in case of a casualty of this character, the commissioners are authorized to rebuild the bridge — in other words, to restore or replace it.
    By the amendment of section 2 (69 Ohio L. 113), the power of the commissioners is extended to cases where it “ has become or may hereafter become dangerous to public travel, by decay or otherwise.” Our claim is, that the section as amended is to be read and construed in connection with section 3 precisely as if the clause inserted by way of amendment had formed part of the original section, and that the word “ restoration ” (as employed in the amended section) has the same meaning when applied to a bridge which has become dangerous by reason of decay, as when applied to a bridge destroyed by casualty. In either case, power is given to rebuild.
    It is claimed by counsel for defendant, that no power was given to rebuild; that the power to “ restore” means merely power to “ repair.” But as to a destroyed bridge, this construction involves a contradiction of language, and it is obvious, from the form of the amendment, that the legislature intended to confer the same power as to decayed bridges that had before been given as to destroyed bridges. If this be not the true construction, then nothing was accomplished by the amendment; and that it is the true construction, seems to us very clear.
    The legislature, when it amended section 2, made no •change in the language of section 3, doubtless deeming it unnecessary. The legislative intent is plain, and we suppose the court can have no difficulty in giving it effect. The amended section 2 is to be read as if the amendment had formed part of the original enactment; and the clause in section 3 creating the exception, is to be construed and applied to the preceding section as amended. Otherwise, as before suggested, nothing has been accomplished by the amendment. The commissioners were clothed with the same power before the amendment as afterward; to adopt the construction claimed by opposite counsel, would defeat the plainly expressed will of the legislature.
    The commissioners, in rebuilding a destroyed or decayed bridge, are not restricted to the amount raised by the special tax.
    
      First. The object of the statute is, to empower the commissioners to restore a bridge necessary for the public accommodation , to meet a public necessity. It was anticipated that the general levy authorized might not provide sufficient means; and to help out the fund so raised, power was given to make a special levy, the legislature taking care, however, to require the moneys raised by the special tax to be applied to the particular purpose for which they were raised. If the special levy proves insufficient, the public necessities are nevertheless to be provided for. The general levy is made for the purpose of raising money to repair and rebuild bridges.
    
      Second. The special levy authorized by section 2, would, in some counties, raise a fund greatly in excess of ten thousand dollars. This, we may remark in passing, strengthens our argument that the commissioners may expend more than ten thousand dollars in restoring a bridge without first submitting the question to the people. But in Defiance county the fund produced by the special levy will not exceed eight thousand dollars. Therefore, upon the construction of the law claimed by the other side, while we might, as they concede, expend the full sum of ten thousand dollars-in building a new bridge in a locality where no bridge had before been constructed, without taking a vote of the people, we can not, as they insist, rebuild a bridge costing more than eight thousand dollars without a vote of the people authorizing the additional expenditure; thus making a provision by which it was intended to enlarge, for the public accommodation, the powers of the commissioners, operate as a restriction upon them.
    
      Gr. JE. Seney, for defendants in error, with whom was W. C. liolgate and W. Garter:
    
    The law governing this case is found in 68 Ohio L. 117, sec. 8, and 69 Ohio L. 113, sec. 2.
    These statutes confer not only special, but extraordinary power. Such statutes are always construed sti’ictly.
    We submit, therefore, that the expenditure of $40,000' for the purpose shown by the facts in this case, requires the approval of a majority of the voters of Defiance county.
    These statutes (secs. 2 and 3) were passed in 1871. In. 1872, section 2 was amended. The original and amended section differ in but one particular. The original section authorized a special levy to restore a bridge destroyed by casualty. The section, as amended, authorized the levy to restore a bridge, when destroyed by casualty, or when unsafe-for travel. So that section 2, as amended, with original section 3, stands as the law in this case.
    In construing these statutes, section 2, as amended, and section 3 are to be construed together, in the same manner, precisely, as if both had been passed at one and the same time.
    Construing these statutes, then, by this rule, it is plain that, by section 3, the expenditure of more than $10,000' for the building of a bridge, without the consent of a malority of the county’s voters, is, except where a bridge is destroyed by casualty, expressly forbidden. Now this exception, it will be observed, relates solely to a bridge which has been destroyed and not to one in use. When a bridge is in use, but becoming unsafe for travel, the exception in section 3 does not apply. So that the case before the court is within the general rule forbidding an expenditure of more than $10,000 without the approval of a majority of the voters of the county, and not within the exception relating to bridges destroyed by casualty. This construction is supported by the consideration that, in amending section 2 so as to allow the board to restore an unsafe bridge as well as a destroyed one, the provisions of sectiou 3 were in nowise disturbed. The general assembly, it would seem,, was satisfied with them, as originally enacted, and therefore made no change either in the rule or the exception. But the counsel for the plaintiff in error insist that, upon this construction, nothing is accomplished by the amendment of section 2. Certainly there is. Under section 2, before the amendment, the board had no power to make a. special levy to restore an unsafe bridge. By the amendment, section 2 confers this power on the board.
    The case before the court presents no such question as-the power of the commissioners where a bridge is destroyed by casualty. The question is as to their power in restoring an unsafe bridge. We may concede, therefore, what is. claimed, that the word “restore,” so far as it relates to a destroyed bridge, is the equivalent of the word “ rebuild,” and expresses the same meaning. Where a bridge which has been destroyed is restored, it is rebuilt. But when a bridge is simply unsafe, the statute contemplates that it may be made safe without an entire new structure. So that in the ease of a destroyed bridge, the word “ restore ” must necessarily have the meaning of the word “ rebuild,” while in the ease of an unsafe bridge 'the word has the same meaning as the word “ repair.” It can not be, as we think, that in the power to restore an unsafe bridge, there-is also the power to build a new one. Nor can it be said that a bridge in daily use, but dangerous to travel, is restored to a safe condition by the building of a new bridge upon contiguous ground.
    The necessity for limiting the power of those who levy taxes and appropriate public money is apparent — too apparent, to be even questioned. So flagrant are the abuses in the use of public money, that the.courts, consulting the common good, can not go too far, in enforcing every restriction which in anywise effects its expenditure.
    This legislation shows that, for eighteen years, the laws of Ohio have been a check on the board of county commissioners, in the expenditure of public money for the building of new bridges and the repairing of old ones. It shows, also, that the subject has been considered again and again, without changing, in any respect, the purpose of allowing-no expenditure beyond a given sum, unless directed by a vote of the electors of the county.
    
      W. C. Holgate, of counsel for defendant in error :
    Because the powers of commissioners are enlarged by the amendment of section 2 (69 Ohio L. 113) so a special levy of a half mill can be raised to one and a half mills, and applied as well to the restoration of bridges becoming dangerous by decay as to those “ destroyed by casualty,” it does not follow that the exception in section 3, of the necessity of taking a vote in case of casualty, is also enlarged so as to embrace gradually decaying bridges.
    The reason for making the exception in ease of casualty is because the urgent necessity of the case will not admit of the necessary time to get a vote, as a general thing. By reference to the law of 1866 (63 Ohio L. 93), 'which this law supersedes, the legislature' itself gives the reason for the introduction of this exception into the law, in these words:
    “ The exigencies of the public, and the safety of public travel, will not admit of the delay in building or restoring such bridge or bridges, as may be required for the purpose-of submitting the question to the voters of such county.”
    
      Decay comes on gradually. When a bridge is put up, the necessity for its repair can be calculated .with great certainty. An experienced builder will .say that if it is not replanked.once a year, in this locality, it will be unsafe for public travel. And if the theory of counsel for plaintiffs is correct, then the commissioners can proceed and build a new bridge, and call it a restoration.
   Day, C. J.

The question in the case is, whether county commissioners are authorized by law to rebuild a bridge costing over $10,000, without first obtaining the consent of a majority of the electors of the county. The determination of the question depends upon the construction to be given to sections 2 and 3 of an act passed May 1, 1871 (68 Ohio L. 117), as amended April 26,1872 (69 Ohio L. 113), prescribing the rate of taxation for county, bridge, road, and township purposes.”

These sections of the act, so far as material, are as follows : The second section, as passed in 1871, authorizes county commissioners to levy annually a tax for road and bridge purposes, and to set apart such portion of the road tax as they may deem proper “to be applied to the building or repairing of bridges in their respective counties.” The •section contains the following additional provision: “ Provided, that in case an important bridge or bridgeSj belonging to or maintained by any county, shall be destroyed by any casualty, and the restoration thereof may be necessary for public accommodation, the- commissioners of said county may levy a special tax for that purpose, not exceeding one-half mill on the dollar of the taxable property of such county, the proceeds of which tax shall be applied solely to the restoration of such bridge or bridges.”

The third section provides that the “ county commissioners of any such county shall not levy any tax, or appropriate any money for the purpose of building public county buildings, purchasing sites therefor, or for lands for infirmary purposes, or for building any bridges, except in case <f casualty, as provided for in section 2, the expense of which shall exceed ten thousand dollars, without first submitting to the qualified electors of said county the question» as to the policy of building any public county building or buildings, or for purchasing sites therefor, or for the purcnase of lands for infirmary purposes by general tax, which said submission shall be made at the annual fall election in October, a. d. 1871, or any annual fall election thereafter.”

The second section of the act was amended in 1872. The clause relating to destroyed and decayed bridges is as follows: “ Provided, that in case an important bridge-belonging to or maintained by any county, has been, or hereafter may be destroyed by any casualty, or has become or may hereafter become dangerous to public travel, by decay or otherwise, and the restoration thereof may be necessary for the public accommodation, the commissioners of such-county may levy a special tax for that purpose, not exceeding one and one-half mills on the dollar of the taxable» property of such county, the proceeds of which tax shall be applied solely to the restoration of such bridge or bridges.”

The third section was not amended, but was left as it was enacted the year before.

The only change made by the amendment of the second, section, was the addition of another cause or ground for the levy of a special tax, and the increase of the rate of' the tax for bridge purposes.

It will be observed that the limitation of the general power of commissioners to build and repair bridges, in the third section, does not extend to the repair of bridges nor does it apply where an important bridge has been destroyed by casualty,' and its restoration is necessary for the. public convenience.

It- is also noticeable that when a second ground for a special‘bridge tax was added to the second section, the. third was left unchanged, so that the question of the construction of the two sections is the same as it would have-been if both had been originally enacted as they now stand. The only question of statutory construction, then, is,. ■whether the exception to the limitation in the third section ■extends to the restoration of decayed bridges, as well as to those destroyed by casualty. The language of the section ■only embraces the latter class. If it can be made to include the other class, it can be done only by a doubtful •construction, that ought not to be applied to an exemption •from an express limitation upon the exercise of the taxing power for a specified purpose. The power of special taxation for bridge purposes, conferred in the second section, may be exercised in two classes of cases, and but one of •these classes is mentioned in the exception from the limitation of the third section. When the legislature added a second ground for special taxation, and increased the rate, they left the new cause for a special levy subject to the limitation of the third section. What the legislature has failed to do expressly, in a case like*this, we ought not to do constructively. The' exemption of one class and not the other, is not without reason. As before remarked, the limitation of the third section does not apply to the repair of bridges, 'but applies only to their construction. The public convenience might require the restoration of a bridge suddenly destroyed by casualty, without awaiting a popular vote, though it might cost more than $10,000; while the rebuilding, not repair, of a decaying bridge may be reasonably •anticipated in time to comply with the provisions of the .third section.

It only l’emains to be considered whether the structure contemplated in this case, was the building of a bridge within the meaning of the third section. We think it was. It was to cost more than $10,000 ; and not coming within •the exception, it was included in the general inhibition of ■the section. It was in no fair sense the repair of a bridge. It was to be a new structure, whether it he called the build- : lg, rebuilding, or restoration of a bridge. The proposed new bridge, then, not being the repair of a bridge, nor excepted from the limitation of the third section, costing •more than $10,000, falls within its provisions. The cost of .the proposed bridge was estimated at about $40,000. This expenditure the commissioners were about to make, in-building a bridge contrary to the provisions of the statute. The popular controversy on the subject made the ease one peculiarly within the reason of the statute, requiring the question to be submitted to the vote of the .electors of the county. Having failed to do this, the District Court did not err in restraining the commissioners from making the-expenditure in violation of law.

Judgment affirmed.

McIlvaine and Rex, JJ., concurring. ‘Welch, J., not. sitting.

White, J.

I do not concur. I admit the conclusion of the court may be justified by a strict adherence to the letter of the third section of the act; but such adherence, it seems to me, sacrifices the intent of the second section as-amended. The act should not be construed according to-the strict letter, but according to what is its true meaning. The intent should be preserved, though it be expounded differently from the letter.

The object of amending the second section was to put bridges of the description named, which had become-dangerous to public travel, and the restoration of which was necessary for the public accommodation, upon the-same footing, in respect to the authority of the commissioners to repair or rebuild them, as like bridges destroyed by casualty.

A bridge forming part of an important public highway,, which has become dangerous to public travel, ceases to accomplish the only purpose for which it was designed. In legislative contemplation, it is regarded for public purposes-as a destroyed bridge. A casualty may, at any moment,, destroy it, and the commissioners are not required to await' the happening of the casualty before taking action to guard against it. Under the prescribed conditions, they may anticipate the casualty, and exercise the same authority for repairing or rebuilding the bridge as if its destruction had occurred.

Considering the mischief the amendment was intended to remedy, the plain implication is that like power was intended to be given in either case; and where the intent is thus to be implied, it should have the same effect as if it had been expressed. Qui heeret in litera, heeret in cortice.

The fact that the bridge constitutes part of one of the important public highways, was deemed by the legislature sufficient ground for not submitting the question of the policy of. the improvement to the vote of the county.  