
    Bailey et al. v. Carter County et al.
    (Decided Feb. 21, 1933.)
    R. T. KENNARD and DYSARD, TINSLEY & PRICHARD for appellants.
    JOHN M. THEOBALD and J. R. McGILL for appellees.
   Opinion op the Court by

Judge Richardson

Reversing.

Olive Hill — a city of the fifth class — is located in Carter county, Ky. The population of the county is 23,000. The assessed value of the real and personal property situated in the county is $6,593,814, and that within the city of Olive Hill is $713,308.

.In 1901, the county, by and in pursuance to orders of its fiscal court, constructed across Tyg’ert creek, within the edge of the corporate limits of Olive Hill, on the south side thereof, for the use of the traveling public, a bridge 165 feet in length and 14 feet wide, of steel, with stone abutments and wooden floor. It has been used continuously since its erection by ¡that portion of tbe traveling public, residing in tbe south side of tbe county, when going to Olive Hill, traveling tbe road known as Ross Chapel, and also tbe county road known as Tick Ridge highway, leading to Olive _ Hill. Approximately 4,000 people reside in tbe sections of tbe cóunty known as tbe Ross Chapel and Tick Ridge settlements, who have no other means of crossing Tygert creek ,when traveling to and from tbe city of Olive Hill.

The bridge is decayed. Tbe steel girders, tbe connecting braces, and other metal portions of it have rusted, and are broken down, until it is necessary to prop the bridge with poles. It is dangerous for tbe use of tbe traveling public, and is continuously becoming more so, especially in times of high water

George Bailey, W. H. De Hart, and Chas. De Hart, citizens, residents, and taxpyaers of tbe county, for themselves and on behalf of all other citizens and taxpayers of tbe county, instituted this action against tbe county, tbe county judge, and the justices of tbe peace, of tbe county, in which tbe facts we have recited are alleged, and upon which they seek a mandamus against tbe fiscal court requiring it to repair the bridge. Before tbe institution of the action, they made a demand of tbe fiscal court, while it was in session, requesting it to repair tbe bridge with tbe funds of tbe county, which it refused to do. Tbe county and tbe members of tbe fiscal court interposed a demurrer to tbe petition. It was sustained. The taxpayers appeal.

A demurrer admits tbe truth of tbe allegations of a petition. Norman v. Ky. Board of Managers, 93 Ky. 537, 20 S. W. 901, 14 Ky. Law Rep. 529, 18 L. R. A. 556. Tbe question presented is whether tbe petition states facts sufficient to constitute a cause of action when tested by a demurrer. Tbe county and tbe fiscal court present section 4305, Ky. Stats, as prescribing the authority and controlling tbe duty of tbe fiscal court under tbe facts presented, with tbe argument that both tbe rebuilding and reparing of tbe bridge are questions resting exclusively in the discretion of tbe fiscal court. It is argued that tbe fiscal court is tbe ministerial agency of tbe county, with the power to exercise its discretion as to tbe necessity of repairing or rebuilding tbe bridge, and until tbe matter is presented as, and in tbe manner, required by tbe statute (section 4305), no canse to exereisó its discretion arises. It is also argued that, since the question has not been presented to the fiscal court as prescribed by section 4305, a mandamus will not be granted to compel the performance of its discretionary, or ministerial, duty. Montgomery County v. Menefee County, 93 Ky. 33, 18 S. W. 1021, 13 Ky. Law Rep. 891; Highbaugh v. Hardin County, 99 Ky. 16, 34 S. W. 706, 17 Ky. Law Rep. 1313, and other later cases, and section 477 of the Civil Code of Practice, are cited to sustain the contention of the county and the fiscal court. Section 1840, Ky. Stats, confers jurisdiction on the fiscal court to appropriate county funds authorized by law to be appropriated; to erect and keep in repair bridges and other structures, superintend the same; and to regulate the fiscal affairs and property of the county and provide for the good conditions of the highways of the county. Section 4305, upon which the county and fiscal court so confidently rely, must be read and interpreted in connection with section 4356m.

It is very clear that, when ¡these two sections are read together in the light of their construction in Russell County v. Hill, Judge, 164 Ky. 360, 175 S. W. 988, the fiscal court, notwithstanding section 4305, has the jurisdiction conferred upon it by section 1840.

The fiscal court is not controlled nor precluded by section 4305 when exercising its jurisdiction in the building or repairing of bridges and maintaining public roads as authorized by section 1840. The jurisdiction is conferred by this section on the fiscal court to determine whether a bridge shall be erected. It is the agency to exercise the judgment as to the need for it. Commonwealth, for etc., v. Boone County Court, 82 Ky. 632; Leslie County v. Wooten, 115 Ky. 850, 75 S. W. 208, 25 Ky. Law Rep. 217. The duty, however, to repair a bridge, or to keep it in repair after it is erected, is not left to the discretion of the fiscal court. The original construction establishes the public necessity therefor, and it is altogether a different question, when the safety of the public travel demand the repairing of a bridge. It is a plain and positive duty of the fiscal court to make the reasonable repairs, devoid off discretionary power. This construction of section 1840 was approved in Trustees of Elizabethtown v. Hardin County, 9 Ky. Opin. 332; Nelson County v. City of Bardstown, 124 Ky. 636, 99 S. W. 940, 30 Ky. Law Rep. 870; City of Flemingsburg v. Fleming County, 127 Ky. 120, 105 S. W. 133, 32 Ky. Law Rep. 11; City of Clinton v. Hickman County, 160 Ky. 687, 170 S. W. 11; Clay City v. Roberts, 124 Ky. 594, 99 S. W. 651, 30 Ky. Law Rep. 820, and in tbe more recent case of City of Pineville v. Robbins, Judge, 232 Ky. 218, 22 S. W. (2d) 607.

Tbe question of necessity of constructing tbe bridge, before it was constructed, was exclusively a matter within tbe discretion of tbe fiscal court, wbicb could not be controlled by a mandamus. Having once exercised that discretion and built tbe bridge, tbe repairing or keeping it in repair becomes a positive, imperative duty of tbe fiscal court, wbicb it may be compelled by a mandamus to discharge for tbe safety and protection of tbe traveling public.

Without reiterating tbe reason for tbe construction of tbe statutes as given in tbe cases, supra, but applying it in this case, tbe suing taxpayers on the facts set out in their petition are entitled to compel the fiscal court to discharge its statutory duty to repair tbe bridge for the use of tbe general traveling public.

Section 477, Civil Code of Practice, as construed by this court in Lowe v. Phelps, 14 Bush, 642, Diamond Taxi Co. v. Gilliam, 216 Ky. 521, 287 S. W. 981, and Carter County v. Mobley, 150 Ky. 482, 150 S. W. 497, authorizes tbe issuance of tbe mandamus. Tbe decree appealed from not being in harmony with tbe views herein expressed, it is reversed for proceedings consistent with this opinion.  