City of Central City v. Marquis

• Decision Date: 06 December 1905
• Docket Number: 13,882
• Parties: CITY OF CENTRAL CITY v. JOHN MARQUIS ET AL
• Court: Nebraska Supreme Court

106 N.W. 221

75 Neb. 233

CITY OF CENTRAL CITY v. JOHN MARQUIS ET AL

No. 13,882

Supreme Court of Nebraska

December 6, 1905

ERROR to the district court for Merrick county: JAMES G. REEDER JUDGE. Affirmed.

AFFIRMED.

W. T Thompson, for plaintiff in error.

George W. Ayres, Patterson & Patterson and John C. Martin, contra.

ALBERT C. DUFFIE and JACKSON, CC., concur.

OPINION

ALBERT, C.

This action was brought against Merrick county and the city of Central City, a city of the second class of said county, to recover for personal injuries sustained by the plaintiff by falling through a bridge within the city, across a stream which crosses a section line road extending through said city. The pleadings and the evidence show that, while the plaintiff was attempting to cross the bridge with a traction engine and water tank, the stringers of the bridge broke, and he, with the engine, was precipitated to the ground, whereby he sustained serious bodily injuries. It is alleged in the petition, in effect, that the injuries sustained by the plaintiff were the proximate result of the negligent construction of the bridge, and the negligent omission of the defendants to keep and maintain the same in a reasonably safe condition. As to the county, the case went off on a general demurrer. As to the city, there was a trial to a jury which resulted in a verdict and judgment for the plaintiff. The city brings error.

One of the questions presented by the record is, which of the two defendants is charged with the duty of making and keeping the bridge in question reasonably safe for public travel. The county is under township organization, and the plaintiff contends that the bridge is less than 60 feet in length, and that the duty of making and keeping it in repair devolves upon the city by virtue of section 77, Article I, chapter 14, Compiled Statutes, 1903 (Ann. St. 8756), which, so far as is material at present, is as follows:

"The city council or board of trustees shall have the care, supervision, and control of all public highways, bridges, streets, alleys, public squares and commons within the city or village, and shall cause the same to be kept open and in repair, and free from nuisances. * * * All public bridges exceeding sixty feet in length, over any stream, crossing a state or county highway, shall be constructed and kept in repair by the county: Provided, that when any city or village has constructed a bridge over sixty feet span, on any county or state highway within their corporate limits, and have incurred a debt for the same, then the treasurer of the county in which said bridge is located shall pay to the treasurer of said city or village seventy-five per cent. of all bridge taxes collected in said city or village until said debt is fully paid and interest upon the same."

On the other hand, the city contends that the section quoted, so far as it relates to the duty of cities and villages with respect to bridges, was impliedly repealed by chapter 72, laws 1887, entitled "An act to provide for the building, maintaining and repairing certain bridges in counties under township organization," and which now constitutes sections 102a and 102b, chapter 78, Compiled Statutes, 1903 (Ann. St. 6130, 6131). The following is the act in full:

"Section 102a. That in counties under township organization the expense of building, maintaining and repairing bridges on public roads over streams shall be borne exclusively by the counties within which such bridges are located.

"Section 102b. The county board of every such county shall build, maintain and repair every such bridge, and make prompt and adequate provision for the payment of the expense thereof."

The history of this act is a matter of common knowledge. It will be observed that it relates exclusively to counties under township organization. Before its enactment, subject to the provision of section 77, supra, counties not under township organization were charged with the duty in question, while in counties under township organization such duty devolved exclusively upon the townships. Whitcomb v. Reed, 24 Neb. 50, 37 N.W. 684. It was felt that the law, as it then stood, imposed too great a burden on the townships, and it was to relieve them of this burden, and to place the two classes of counties on equal terms with respect to bridges over streams, that the act of 1887 was enacted. As it relates only to counties under township organization, to give it the effect claimed for it by the city would relieve cities and villages in such county of the duty of constructing and maintaining bridges over streams, but would leave that duty still resting upon cities and villages in other counties. It seems unlikely that the legislature intended thus to discriminate in favor of the cities and villages of one class of counties and against those of another. Besides, repeal by implication is not favored. Dawson County v. Clark, 58 Neb. 756, 79 N.W. 822; Albert v. Twohig, 35 Neb. 563, 53 N.W. 582. When two acts are simply repugnant they should, if possible, be so construed that the latter may not operate as a repeal of the former by implication. People v. Weston, 3 Neb. 312. The act of 1887 is complete in itself. There is nothing in it to indicate that it was intended to repeal any portion of section 77. It refers exclusively to "bridges on public roads over streams." In Nebraska Telephone Co. v. Western Independent L. D. T. Co., 68 Neb. 772, 95 N.W. 18, it was held that the term public roads in a statute giving telegraph and telephone companies a right of way along the public roads, does not include the streets and alleys of an incorporated city or village. In the same opinion the following language was approved by the court: "Whatever may be the usage in other jurisdictions, we think it safe to say that in this state the term 'public roads' is commonly understood and recognized to apply exclusively to rural highways." From the language of the act itself, its obvious purpose and history, and the fact that for 18 years section 77 has stood unchallenged as a part of the law of the state, and has been so recognized and acted upon, notwithstanding the act of 1887, we are satisfied that the word "roads," in the act of 1887, should be taken in the sense in which it is commonly used and understood, namely, as including only rural highways, and not that portion of a highway lying within the limits of a city or village.

But the city insists that the bridge is over 60 feet in length, and consequently, even under section 77, the duty in question belongs to the county. It is not claimed that structure itself exceeds 60 feet in length, but the city contends that the term bridge includes the approaches, and that the bridge in question, including the approaches, is more than 60 feet long. Whether the approaches are included within the term bridge depends upon the context, and the circumstances under which the term is used. Nims v. Boone County, 66 Iowa 272, 23 N.W. 663; Phillips v. Town of East Haven, 44 Conn. 25; City of New Haven v. New York & N. H. R. Co., 39 Conn. 128; New Haven and Fairfield Counties v. Milford, 64 Conn. 568, 30 A. 768, Commonwealth of Kentucky v. Louisville Bridge Co., 42 F. 241. By the section in question, bridges were divided into two classes, one of which was to be constructed and maintained by counties, the other by cities and villages; those over 60 feet in length falling within the former, and those 60 feet or under within the latter. It is fair to presume that the legislature did not overlook the importance of adopting a rule of classification whereby the class to which a given...