
    The People, on the relation of C. W. Bently, vs. The Commissioners of Highways of the City of Hudson, and The Commissioners of Highways of the Town of Stuyvesant, in the county of Columbia.
    
      Commissioners of highways are not bound to luild Iridges, when not in funds to defray the expense.
    
    Where the probable expense of building a bridge would exceed $250, the sum which the commissioners may cause annually to be raised for the improvement of roads and bridges, they will not be required by mandamus to proceed in the erection of the bridge.
    On a motion for a peremptory, mandamus, the court do not look at the affidavits on which the alternative writ was founded; their decision is made solely ' upon the return to the alternative writ.
    December 9,
    Motion for a mandamus. A bridge over a stream called Abraham’s creek, in the county of Columbia, Which stream separates the city of Hudson from the town of Stuyvesant, having fallen down or become unsafe to pass and repass, the relator applied to this court for a mandamus commanding the commissioners of highways of Hudson and Stuyvesant to rebuild the same. An alternative mandamus was issued, to which the Commissioners made a return, and on the coming in thereof, the relator, instead of formally demurring or pleading to the return, elected to ask for a peremptory mandamus at a special term of this 'court. The only fact in the return to the alternative mandamus, deemed necessary to notice, is that the commissioners of highways of the town of Stuyvesant certify, that the expense of building one half of the bridge (the proportion which would fall to the share of Stuyvesant, were that town liable to build the bridge,) would be about $700, ■ and that they, the commissioners, have no funds whatever tb ■appropriate.to that-use.
    
      '■C. Bushnell,for'the relator.
    
      A. L. Jordan, contra.
   By the Court,

Nelson, J.

This is an application for a per- . qmptory mandamus against the defendants, to compel them to rebuild the bridge over Abraham’s creek, at Columbia.ville in the county of Columbia; which application is founded upon the return made by the defendants to an alternative man-damps heretofore issued.

A question was made upon the argument, whether the court would look beyond the return into the affidavits upon which the alternative mandamus was granted in deciding this motion. The statute, 2 R. S. 586, § 55, provides that when a, return shall be made to a mandamus, the person prosecuting may demur or plead to all or any of the material facts contained in it, to which the person making the return shall reply, take issue or demur, and that the same proceedings shall be had as if an.action.had been brought for a false return. "If the party demurs to the return, he thereby admits the truth of the material facts alleged in it, and the question is one of law, and should be put upon the calendar for argument at term. If the facts in the return are denied, then an issue in fact exists) which must be sent down to the circuit for trial. In either aspect of the case, it is obvious the original affidavits upon which the motion for the alternative writ was founded, are out of the question. In this case the parties do not observe the formality of pleading upon the coming in of the return, but the relator applies at a special term for a peremptory writ, notwitstanding the return. He thereby admits the facts set forth in the return to be true, and contends that the law arising upon those facts entitles him to the mandamus. He cannot, therefore, look beyond the return to the affidavits, for the purpose of varying the legal effect of it. Is he dissatisfied with the return, he should move for a further return ; if a full and complete return has not been made to all the points specified in the alternative mandamus, or if he disputes the facts, that question cannot be determined here, he must, on a proper issue made, go down to the circuit for trial. In this case the relator, in effect, demurs to the return. If the defendants shall be dissatisfied with the decision which shall be made,, a record may formally be made up, upon which such' decision can be reviewed by a higher tribunal. But the relator loses this privilege by thus informally going to a hearing. If he is desirous to reserve this right, as he is the actor, he should plead formally, and put the case upon the calendar. It may be proper that the original papers should be before the court upon the hearing of the return to the alternative writ, for the purpose of advising the court of the purport and intent of the proceedings, but not to affect the facts contained in the return; and this, is all, as I understand it, that is meant by the cases to \yhich I have been referred. 1 Wendell, 320. 2 id. 256.

On the merits: the commissioners of highways in the' several towns in this state have the care and superintendance of the highways and bridges therein, and it is their duty to cause the bridges which are or may be erected over streams intersecting highways, to be kept in repair. 1 R. S. 501, § 1, By the fourth section of the same act, they may require monies to be raised for the improvement of roads and bridges, but they cannot compel the supervisors to raise, in any one year, for the improvements necessary to be made on roads and bridges in their town, over the sum of $250. This is the extent of the means the commissioners have to carry into execution the object intended by the mandamus, except the labor upon the road district, which [includes this bridge, which it was admitted on the argument was not applicable to this object. Abraham’s creek, over which it is contemplated to build the bridge, separates the town of Stuyvesant from the city of Hudson. The city of Hudson, beyond the compact part, is subject to the provisions of the revised statutes concerning highways. Laws of 1829, p. 194, § 37.

The commissioners of Stuyvesant, in their return, .state that it would cost about the sum of $700 to build the one half of the bridge, (which it is contended they ought to build,) and that they have no funds wherewith to build or repair the same. We have not deemed it necessary to examine all the questions raised upon the argument of this case, nor the voluminous facts contained in the return, because, upon the above view, it would be an injudicious exercise of the power of the court to grant the motion ; even if it was the duty of the commissioners to build the bridge, we would not undertake to compel them to do so without funds, or the means of procuring funds. But I am satisfied that neither the highway act nor the common law imposes this duty upon them or their towns. The ... . . , . t - . statute which makes it their duty to keep highways and bridges in repair, did not intend to extend that duty beyond their means, and the only means under their control is $250 per year, to be applied to all the highways and bridges in the town that require repairs. It was not intended by the act that the commissioners, (and of course not the towns, for they are the agents of the towns in this respect, and the only body, except the legislature, who can impose even the $250 per annum upon the towns,) should be subjected to the expense of erecting or repairing bridges of the magnitude of the one in question, without a special act of the legislature for the purpose. If the statute intended to impose that duty upon the towns, provisions would have been made in behalf of their agents for raising the necessary funds.

But it is said the common law makes it the duty of the towns to build the necessary bridges, and repair them. Even if at common law they are liable, (which they are not,) the statute controls it, by limiting the liability of the towns on this subject, and directing the mode by which that liability may be coerced. At common law, however, the counties, and not the towns, were subject to this duty, and the remedy for neglect was by indictment. Bartlett v. Crozier, 17 Johns. R. 452, and the cases there cited. It is no answer to say, that the statute, in making it the duty of the commissioners to cause the bridges to be repaired, has-altered the common law, because this duty is subordinate to the means and provisions of the statute, and not to be regulated by the principles of the common law. This is in accordance with the opinion of Chancellor Kent in the case above cited; in page 451, speaking of the duty of commissioners in keeping in repair roads and bridges, he says ; “ This seems to be a general duty, applicable at all times, and in all places ; yet when we come to read the details of their duty, we perceive it does not exist absolutely, but arises only when the commissioners have money in hand, from forfeitures and penalties, or which have been paid; over to them, under the direction of the supervisors.”

The practice of the legislature is also a confirmation of this. view, of the case. Bridges like the one in question, are built by. corporations, or individuals, with the privilege of taking toll, and more frequently with funds raised by special acts of the, legislature upon the towns or counties. There are five or six instances of this kind in the Session Laws of 1830, p. 11, 41, 16,215,272. The supervisors of Ulster county were authorized to raise #1200—600 from each town lying on either side of Shawangunk Kill, to build a bridge over it. The motion for a peremptory mandamus is. denied, but without costs-.  