
    State, ex rel. v. Commissioners.
    
      Mandamus — County commissioners — Construction or repair of bridges by — Expediency of, a matter of discretion — Cannot be controlled by mandamus.
    
    The expediency of the construction or repair of a bridge, under section 4938, Revised Statutes, rests in the administrative discretion of the countj' commissioners, and such discretion cannot be controlled by mandamus.
    (Decided April 19, 1892.)
    
      ERROR, to the Circuit Court of Hamilton county.
    The case was appealed from the common pleas to the circuit court, and sought to compel the commissioners of Hamilton county by mandamus, to repair a certain bridge within the corporate limits of the village of College Hill. It was tried upon an agreed statement of facts, which is as follows:
    “(1.) The Rinden avenue in College Hill referred to in the petition is a part of what was originally called Groes-beck road, a county road in Hamilton county, running into and» through said village of College Hill, of general and public utility.
    “(2.) At the place where the bridge in question now is, the road descended into a ravine, at the bottom of which and under the road was a culvert through which ran the drainage of a considerable area of land to the north of the road, and through which there was frequently, but not constantly, a small stream of water.
    ■‘(3.) About 1872, the village of College Hill made a fill of several feet over the culvert, and reduced the steepness of the grade of the road on each side of it.
    “ (4.) While the road was in this condition, early in 1876, the College Hill railroad cut through it, and laid its track a number of feet below the surface of the road. The cutting for the railroad necessitated the destruction of the culvert and the construction of a bridge or a grading of the approaches, and the water which had flowed through the culvert, now flows on each side of the track. After cutting across the road, the railroad built a wooden bridge over this track wide enough for wagons to pass, not of the full width of the county road. There was a fill of several feet made by the village corporation on Rinden avenue from each side of the wooden bridge to raise the level of the road to the level of the wooden bridge.
    “(5.) In 1882, the county commissioners removed the wooden bridge, and in its place constructed an iron bridge, the one now in question, of the full width of the avenue, and raised it so high that when the approaches were filled, tbe avenue was almost level, and paid for such bridge out of the county bridge fund.
    “(6.) The railroad company in 1888 or ’89, without any authority from the said commissioners so to do, raised the superstructure of the bridge a few inches, not more than a foot at one end, and propped up the same with timbers.
    “(7.) That the abutments of said bridge, as a result of defective construction, had become cracked, and that the action of said company in raising said bridge, added to the original defect of the construction of said abutments, had caused the bridge to become unsafe and dangerous to public travel, in which condition it now is, and will.have to be rebuilt.
    “(8.) That said bridge is a necessary bridge.
    “ (9.) That the village of College Hill is a village of the second class; is not entitled to demand or receive any of the bridge fund levied on its property; has not received any portion thereof; and has no bridge fund of its own.
    “ (10.) That the attention of the commissioners was called to the unsafe condition of the bridge, and demand made on several occasions to replace or repair it, and that they had caused their engineer to prepare plans for a new structure, which the commissioners claimed should be erected by said railroad company, but which has not been so erected, by said railroad company; and in order-to protect the traveling public, .said commissioners also caused a danger sign to be ■ placed on said bridge.
    “ (11.) The relator is a citizen, resident, tax-payer, householder and property owner of College Hill, and a user of said bridge in question, and is compelled with other travelers to pass over said bridge.”
    The court found as a matter of law that the relator was not entited to any relief, and dismissed the petition.
    
      C. Hammond Avery, and Mathews <Sf Cleveland, for plaintiff in error.
    
      Spiegel & Bromwell, county solicitors, for defendants in error.
   By the; Coub.T:

We see no error in the judgment of the court upon the agreed statement of facts. The relator founds his rights to a mandamus against the commissioners upon the provisions of section 4938, Revised Statutes, which provides that:

“The commissioners of the several counties shall cause to-be constructed and kept in repair, in the manner prescribed by law all necessary bridges in villages and cities not having the right to demand and receive any portion of the bridge fund levied upon property within such corporations, on all state and county roads, free turnpikes, improved roads, transferred and abandoned turnpikes and plank-roads, which are of general and public utility, running into or through any such village or city.”

The duty here imposed is a part of the general duty to-“construct and keep in repair all necessary bridges over' streams and public canals on all state and county roads,”' imposed on county commissioners by section 860, Revised Statutes, and became necessary as a .limitation of section 2640, Revised Statutes, giving to cities and villages the supervision and control of all public highways and bridges-within their corporate limits, and requiring them “to keep-the same in repair and free from nuisances.” These sections all relate to the same subject, and must be construed together. As an effect of these provisions it became the duty of county commissioners to construct and keep in repair all bridges on the public highways of the county,, except such bridges as are within cities and villages that have the right to demand and receive a portion of the bridge fund.

The language, “shall construct all necessary bridges,” though imperative in form, cannot be construed to require the construction of any bridge irrespective of questions of expediency. The necessity for a bridge, requiring its immediate construction, must, in the prudent administration of the affairs of a county, be relative to many considerations — such as time, means, and the number of other bridges required by public convenience at other places in the county; and, all these things being considered, whether the bridge should be constructed at once, is for the determination of the commissioners in the exercise of their administrative functions; and their determination in the matter cannot be controlled by mandamus. A bridge may' be necessary, but whether it should be constructed, or repaired, before others of equal or more pressing importance, cannot be determined by a court in opposition to the views of a board of commissioners, familiar not only with the resources, but with the wants of each and every part of the county. The expediency of building or repairing a bridge, however necessary, is an administrative and not a judicial question. Hence the “agreed fact” that the bridge is necessary, is immaterial upon the question whether the commissioners should be compelled by mandamus to repair it. The power to compel the construction or repair of a particular bridge) provided for by a special act, is not' involved in this case.

Judgment affirmed.  