
    Matter of the application of certain freeholders of the towns of Mt. Morris and Castile for an order requiring the Commissioners of Highways of said towns to rebuild or repair a joint bridge known as the St. Helena bridge.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June, 1886.)
    
    1. Commissioners of highways—Proceedings under chapter 639 of the
    Laws of 1857 to compel building of bridge by, even where commissioners HAVE NO FUNDS.
    Under the act of 1857, providing for the building of a bridge over a stream between two towns, at the request of the freeholders in each town, the court may order the building of a bridge by the commissioners of highways, even where they have no funds. The act authorizes the commissioners to pledge the credit of the towns as far as may be necessary, and for raising money by tax to defray the cost, not exceeding the sum specified in the order.
    2. Same—Refusal by commissioners.
    Where the commissioners of highways of the two towns, in consequence of their inability to decide upon the kind of bridge to be erected, fail to comply with the request of the freeholders made in due form, their neglect so to do is a refusal within the meaning of the statute, and gives the court jurisdiction to make order.
    
      3. Same—Description required in order.
    The order is sufficiently definite in the description of the bridge to be built where it sets forth its location, the material of which it shall be constructed, and the limit of its cost.
    4. Same—Constitutional law.
    The delegation to the courts by the legislature of the power to make the order provided for by this statute is constitutional. The duties devolved upon the court are judicial in their nature.
    Appeal from an order of the Erie special term requiring the commissioners of highways of the towns aforesaid to build an iron bridge across the Genesee river at St. Helena.
    
      S. Hubbard, for app’lts, commissioners of highways of Mt. Morris; E. C. Olney, for resp’ts, freeholders, etc.; W. M. Gledhül, for resp’ts, commissioners of highways of Castile.
   Smith, P. J.

This is a proceeding under chapter 639 of the Laws of 1857. That act provides that whenever any adjoining towns shall be liable to make or maintain any bridge over any streams dividing such towns, whether in the same or different counties, it shall be lawful for three freeholders in either of such towns, by a petition in writing signed by them, to apply to the commissioners of highways in each of such towns, to build, rebuild or repair such bridge, and if such commissioners refuse to build, rebuild or repair such bridge within a reasonable" time, either for want of funds or any other cause, the said freeholders, upon affidavit and notice of motion, served as prescribed in the act, may apply to the supreme court at a special term thereof to be held in a judicial district in which such bridge or any part thereof shall be located, or to a judge of said court at chambers, for a rule or order requiring such commissioners to build, rebuild or repair such bridge, and the court or judge shall make such order thereon as the justice of the case shall require. The act further provides that if such motion be granted in whole or in part, whereby funds shall be needed by the said commissioners to carry said order into effect, such court or judge shall specify the amount of money required for that purpose and how much thereof shall be raised in each town.

The present application was based upon a petition of freeholders of each town, duly verified, and the matter was referred, "as provided by the act. The referee reported among other things, that the town of Mt. Morris, in Livingston county, and the town of Castile, in Wyoming county, adjoin each other, and he on opposite sides of the Genesee river, the center of which stream is the boundary line between said towns ; that there is a legal highway in Mt. Morris extending to and meeting a legal highway in Castile, at a point in the centre of said river, at a place known as the St. Helena bridge, the said two highways so meeting, constituting a continuous road which has been travelled and used as a public highway for upwards of thirty years; that for more than thirty years next prior to the 6th day of February, 1864, a wooden bridge had been erected and maintained at the point aforesaid, known as the St. Helena bridge, and for several years prior to that date, had been rebuilt and maintained at the equal and joint expense of said towns; and that, at the date last mentioned, it was destroyed and a large part of it was carried away by a flood, whereby it was rendered impassable, and has remained in that condition to the present time ; that there is a public necessity for a bridge at that point; that the highway commissioners and proper officers of Mt. Morris have been at all times willing to build and maintain said bridge and to contribute an equal amount with the town of Castile to the expense of the same, if a wooden bridge should be erected, or the portion of the bridge not taken away shall be repaired with wood, and the necessary iron with which to repair and rebuild a wooden bridge; while the commissioners of highways of the town of Castile and the proper officers thereof, have been at all times ready and willing to so contribute an equal share to the erection and maintenance of a bridge at the place aforesaid if the same shafl be built of wrought iron, with such portions of wood as may be necessary to erect and maintain what is known as a wrought iron bridge, and for the sole reason that they were unable to agree as to the kind of bridge, no bridge has been erected, both parties acting in good faith in relation thereto. The referee also reported, upon evidence which we think substantiaUy supports his findings, that a wooden bridge can be erected at the point in question for about $5,000, and an iron bridge for about $9,000; that the average life of a wooden bridge is about twelve years, and that of an iron bridge about seventy-five years; and that neither town has on hand any funds with which to erect a bridge at the place aforesaid. The referee also found as matter of law that said two towns are hable to make and maintain said bridge at the joint expense of said towns; that a wrought iron bridge, with stone piers, be used instead of a wooden structure; that the cost thereof do not exceed the sum of $9,000, one-half of which be paid by each town; and that the expenses of the said proceeding be shared equahy by said towns. The special term confirmed the report, and made an order in accordance with it, from which order this appeal is taken.

It is contended on the part of the appehant that under the act of 1857 the court has no power to compel the expenditure of a larger sum than the towns have power to provide or contract for without the order of the court. That contention, we think, does not accord with the intention of the act. By the express terms of the statute, the court may act, notwithstanding the refusal or neglect of the commissioners is put upon the sole ground of the want of funds. By the fourth section of the act, the commissioners are authorized to pledge the credit of the town, so far as may be necessary for doing the work ordered, and the fifth section provides for raising by tax the money needed to defray the cost of the structure, not exceeding the amount specified in the order. The statute is one of public benefit, intended.to meet cases of pressing public necessity, and in providing a mode of erecting bridges over streams dividing towns and counties, it contemplates that occasions may arise requiring the expenditure of larger sums of money than towns are authorized to raise annually for the ordinary repair of internal highways and bridges.

It is also contended that the court had not jurisdiction to make the order, for the reason that no refusal of the commissioners is shown, to build, rebuild or repair, etc. While it appears that the commissioners of each town were willing to build a new bridge, yet their inability to agree as to the kind of bridge, those of Mt. Morris insisting that it shall be of wood, and those of Castile insisting that it shall be of iron, has resulted in a neglect or refusal to build any bridge whatever. A case of public inconvenience is thus presented, we think, which justifies an application to the court, under the statute.

Again, it is contended that the order is too indefinite and uncertain to be executed, as it does not describe the bridge to be built, except that it is’ to be of iron. This objection is not well taken. The fourth section of the act provides that the commissioners of the two towns, on being served with the order, shall forthwith meet and fix on the plan of the bridge, or the manner of repairing the same, and shall cause the same to be built, etc. The order defines the. location of the bridge, and the material of which it shall be constructed, "and limits its cost. That is as far as it could properly go,' in the first instance, at least.- In leaving the details of the plan to the action of the commissioners, it evidently complies with the intention of the- statute. It is unnecessary now to consider what- remedy shall be pursued in case the commissioners fail to fix .upon a plan.

Lastly it is contended by the counsel for the appellant, that the order is the exercise of a power not judicial in its nature, and which the legislature has no constitutional authority to delegate to the courts. With this contention we are not prepared to agree. To determine the liability of towns to erect and maintain bridges, to enforce such liability, and to order the mode in which it shall be performed are acts peculiar judicial in their character. An analogous appellate jurisdiction in respect to the laying out, altering or discontinuing roads, has for a long time been vested in the courts by statute.

The order should be affirmed with ten dollars costs of the appeal and disbursements to be paid by the appellant to the respondents.

All concur So ordered.  