
    Commissioners vs. Board of Public Works.
    1. The provisions of an act to authorize the commissioners of Muskingum county to build certain bridges therein named across the Muskingum River and State canal, passed February 24, 1868 (65 Ohio L. 219), and an act amendatory and supplementary thereto, passed Apr! I 3,1876 (73 Ohio L. 274), left to the commissioners the determination of the location, within the prescribed limits, of the proposed bridge; but the approval by the Board of Public Works of the “ plan” of the bridge as distinguished from its “ location ” was prerequisite to its construction
    2. The disapproval of the “plan” by the Board of Public Works upon the sole ground of objections to its location, being unwarranted, a writ of mandamus may properly issue to require it to exercise its discretion and either approve or disapprove such plan without regard to the question of location.
    3. The provisions of the act above named were not repealed or affected by section 4987 of the Revised Statutes.
    4. A local and special act is not repealed or otherwise affected by the con flicting provisions of a subsequent general statute on the same subject, unless the legislative intent that such effect be given the later enactment is clearly manifest.
    5. While Congress may, in the assertion of its power under the constitution to regulate commerce among the States, exercise control over the navigable waters within this State, so far as- to protect and improve their free navigation, yet while this power remains dormant and uneffectuated by legislation, the State has plenary authority over bridges across them, and there is nothing in the ordinance of 1787 that precludes her from exercising such authority.
    6. The enactment by the general assembly of the provisions above named for the construction of such bridge, is an assertion by the State of such authority, and the Board of Public Works has no power, in a proceeding to compel its action according to such provisions, to question the right of the State to authorize the construction of such bridge, or other, wise oppose its construction, upon the alleged ground that the naviga. tion of the waters to be bridged will be thereby obstructed.
    
      Application for mandamus.
    By an act of the General Assembly which took effect February 24th, 1868 (65 O. L. 219), and an act amendatory and supplementary thereto, which took effect April 3d, 1876 (73 O. L. 274), the commissioners of Muskingum county were “authorized and empowered to build a bridge across the Muskingum River and State canal ” at such point, within designated limits, “ as -said commissioners may determine.’ ’
    Section 2 of the act of 1868 provides that before the construction of a bridge under its provisions, “the said commissioners shall submit the plan of the same to the Board of Public Works of said state and receive their approval thereof.”
    The streets to be connected by the bridge were public highways.
    The proposed site of the bridge is within the corporate limits of the city of Zanesville.
    The Muskingum River, at the point of the proposed location of the bridge, although known to the law and the courts as a navigable river, is not in fact navigable except by means of the canal, which constitutes, in part, the “Muskingum River improvement.” The commissioners duly determined to build a bridge of the kind, and located within the limits, authorized and prescribed by the legislation abw\ referred to, and procured to be made a full and complete plan or model of a bridge, embracing a swing bridge where the same crosses the canal, which, on the 11th day of April, 1883, they submitted to the board of public works, for the purpose of receiving its approval thereof.
    The board refused to examine for approval or disapproval, such plan or model, but entered on its records, in reference thereto, the following: “The board disapproves said plans, believing that the location of the bridge, as proposed, would be injurious to the state’s interests.” Thereafter, in May, 1883, the board refused, on request, to reconsider its former action, and entered upon its records, in reference thereto, the following: “ Ordered, that this board refuses to reconsider its action concerning the bridge proposed to be built at Zanesville, as expressed in its order of April 11, 1883, for the reason that the building of the bridge at Sixth street would injuriously and unnecessarily interfere with the rights of the public and persons engaged in the navigation of the Muskingum River.”
    It was a fact conceded at the hearing of the present proceeding, that the board of public works based its action upon its disapproval of the proposed location of the bridge.
    The object of of this proceeding is to compel the defendant, by writ of mandamus, to exercise its discretion, and either approve or disapprove the plan of the proposed bridge.
    
      T. P. Linn and W. J. Gilmore for plaintiff:
    The acts of February -24, 1868, (65 Ohio, L. 219) and of April 3, 1876, 73 Ohio Laws, 274, clothe the commissioners with exclusive power over the location of the bridge within the prescribed limits or bounds fixed by the acts.
    The location made is within the prescribed limits or bounds, and also within the discretionary powers of the commissioners under the power conferred. *
    A special act is not repealed by a general act, 14 Ohio St. 47 ; 19 Ohio St. 320, 346; 22 Ohio St. 508, 515; 20 Ohio St. 421.
    The ordinance of 1787 does not render the special acts void. 9 Ohio, 52; 23 Ohio St. 523; 1 McLean, 337.
    The State was the judge whether the building of the bridge as located by the commissioners would necessarily or injuriously affect navigation ; and having decided by the special acts that it would not do so, the respondents could not question such decision. 37 Ohio St. 174.
    
      A. W. Train for defendants :
    I. The uninterrupted navigation of the Muskingum River is provided for by the ordinance of 1787, Art. 4, hence the State cannot authorize any obstruction to the navigation of such river, 5 Ohio, 410; therefore the acts of the legislature will be if possible construed as not intending to permit an obstruction. 5 Ohio, 410.
    
      II. The board of public works has by the constitution and laws, control of The Muskingum Improvement, and are required to keep the same open for navigation and free of any obstruction. Const. Art. 8, Sects. 12,13; Rev. Stats. § 7691. By implication any one may bridge a canal or navigable stream provided he get license from the board .of public ■works, if in the opinion of the Board the bridge will not injure navigation. Rev. Stat. of Ohio, § 7763.
    III. The act of 1868 cannot be construed as a grant, but only as an enabling act for the relators, for the following reasons:
    1st. No grant was necessary, the general law authorized the construction if it would not obstruct navigation, and to hold that the Legislature intended to authorize the obstruction of navigation would be to hold the act void.
    2d. The board of public works being provided for in the constitution, the legislature may not directly control the public works, it may only prescribe and limit the powers of the board over the same and the act will not be construed to authorize anything not within the power of the legislature to grant.
    3d. The act does confer new powers on the relators, and powers without which they would be powerless to act; oand it must be presumed that the whole object of the legislature was to confer these indispensable powers.
    IY. If the act of 1868 shall be construed to be a grant, the relators will be controlled in the exercise of their powers by section 4937, Revised Statutes, and may not build the bridge until they obtain the approval of the respondents of the location as well as of the model.
    Y. Before the court will hold that the legislature intended to limit the general powers of the respondents by the act of 1868, it will give to the word “plan” a meaning more comprehensive than a mere model, and hold that it includes location and model both.
   Owen J.

The defendant maintains that by the acts authorizing the construction of the proposed bridge, it is charged with the duty of considering and approving or disapproving the location as well as the plan of it. These acts seem clearly to leave its location entirely with the commissioners. The respondent says, however, that section 4937 of the Revised Statutes so far qualifies the provisions of the special bridge acts as to make its consent in writing “ for the model and location” of the bridge prerequisite to its construction. This claim is well made if this section is to exert a controlling effect upon the provisions of the bridge acts. The provisions of this section were first substantially enacted April 16, 1874 (71 O. L. 84), and amended March 24, 1875 (72 O. L. 110), while the power to determine the location of the bridge was confided to the commissioners by the amendatory and supplementary act of April 3d, 1876 (73 O. L. 274). To give to section 4937 the effect claimed for it, it is to be regarded as having all the force of an original enactment as of the date of the last revision of the statutes— January 1st, 1880, and to work the repeal of all inconsistent or conflicting legislation. It should be borne in mind that the act for the revision and consolidation of the statutes related only to the statutes of a general nature. The acts authorizing the construction of the proposed bridge were special and local and have not been repealed nor otherwise affected, unless’ by an implication raised by the section in question.

Repeals by implication are not favored. So, particular and positive provisions of a prior act are not affected by a subsequent statute treating a subject in general terms and not expressly contradicting the provisions of the prior act, unless such intention is clear. Perrysburg v. Fosdick, 14 O. S. 472; Knox Co. v. McComb, 19 O. S. 320, 346; Shunk v. First National Bank, 22 O. S. 508, 515; Olds v. Franklin Co. 20 O. S. 421; Allen v. Russell, 39 O. S. 336.

The decided weight of authority supports the proposition that when there is a general act and also one local and special on the same subject, in conflicting terms, neither necessarily abrogates the other, but both are permitted to stand together, and it is immaterial which is of the later date. Bishop on ike Written Laws, 112 b.; Crane v. Reeder, 22 Mich. 322; People v. Quigg, 59 N. Y. 83.

If the legislative intent that the general law shall supersede the local and special act is clear, it will of course prevail. No such intent being manifest in the present case, we conclude that the provisions of the acts under which the commissioners are proceeding must prevail, and that the location of the bridge was a subject confided exclusively to them.

Another defense relied upon by the defendant is that the proposed bridge will obstruct the navigation of the Muskingum River (as improved by the canal) and, being a navigable stream, the ordinance of 1787 protects it from obstruction by any act of the State. This ordinance declared that: The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between them, shall be common highways and forever free, as well to the inhabitants of said territory as to the citizens of the United States and those of any other State that may be admitted into the confederacy, without any tax, impost, or duty therefor.”

The case of Hogg v, Zanesville Carnal and Manufacturing Co., 5 Ohio, 410, is relied upon as supporting this claim.

The later case of Hutchingson v. Thompson, 9 Ohio, 52, established the broader doctrine that the clause of the ordinance above quoted did not prohibit the States formed out of that Territory from legislating with respect to those rivers, or affecting their navigation, when the regulations subjected equally their own citizens and the citizens of other States to the inconveniences resulting from such legislation.”

Although the ordinance was passed one year and nearly eight months before the federal constitution took effect, some of the earlier cases proceeded upon the assumed superiority of the former to the latter respecting the navigable waters within the territory originally affected by the ordinance.

The doctrine now firmly established is that over the navigable waters within the boundaries of these States, Congress, in the assertion of its power under the constitution to regulate commerce among the several states, may exercise control to the extent necessary to protect, preserve and improve their free navigation, but that while this power remains dormant and until that body act, the states have plenary authority over bridges across them, and that there is nothing in the ordinance of 1787 that precludes them from exercising tüat authority. Wilson v. Blackbird, Creek Marsh Co. 2 Pet. 245; Gilman v. Philadelphia, 3 Wall. 713; Welton v. State of Mo. 91 U. S. 275; Pound v. Turck, 95 U. S. 459; Escanaba Co. v. Chicago, 107 U. S. 689.

Concerning the navigation of the Mnsldnguin River, Congress has never exercised its authority by legislation.

This leaves the State of Ohio with plenary power to act concerning this as well as the other highways to be affected by the proposed bridge.

That she has power to require one public easement to yield to another more important, is a principle well established. Hickok v. Hine, 23 O. S. 523. To the state, then, is confided the office of determining whether any and what obstruction to the navigation of the Muskingum River, and of the canal as an improvement of it, would result from the construction of the bridge. We do not, nor are we required to, assume that the state has power to obstruct the navigation of the waters to be traversed by the proposed bridge. The state has acted. By the special acts under which the commissioners are proceeding, she has prescribed the duties of the commissioners and the board of public works, respectively. It is to be supposed that the effects of the proposed bridge upon the highways to be affected by it were the subjects of consideration and determination at the time of the passage of the acts authorizing it, and the inquiry is a pertinent one : What standing has the defendant in this court to tender the issue in this case, that the bridge will obstruct navigation. It should be borne in mind that a canal is to be bridged and not simply a navigable river. True, it is with it as an improvement of the river we are dealing; but it is as one of the “public works ” of the state, and not as a navigable river that the defendant is at all concerned in it. It is claimed for and by the defendant that it is the creature of the constitution and derives therefrom its power of control over the public works of the state, and with this its right to challenge, in this proceeding, the conduct of the state in authorizing the construction of the proposed bridge. ■

•The constitution (Art. 8, Sec. 12) provides: “ So long as this state shall have public works which require superintendence, there shall be aboard of public works * * Sec. 15, of the same article provides: The powers and duties of such board of public works * * * shall be such as now are or may be provided by law.”

The board of public works possesses no powers except such as are expressly conferred by law, or as are necessarily implied.” Johnson, J. in State v. Ry. Co. 37 O. S. 174. The defendant must look to the acts of the general assembly for direction concerning its powers and duties. The acts authorizing the construction of the proposed bridge, point out the duty of the boárd of public works in regard to it, which is that it examine and consider, with a view to its approval or disapproval, the ‘ ‘ plan ” of the bridge presented by the commissioners, without regard to the question of location.

Having refused to do this, a peremptory writ will issue, according to the prayer of the petition.

Johnson, C. J. did not sit in the case.  