City of Kellogg v. McRae

• Decision Date: 09 May 1914
• Citation: 141 P. 86,26 Idaho 73
• Parties: CITY OF KELLOGG, Appellant, v. A. P. MCRAE et al., as County Commissioners of Shoshone County, Respondents
• Court: Idaho Supreme Court

141 P. 86

26 Idaho 73

CITY OF KELLOGG, Appellant, v. A. P. MCRAE et al., as County Commissioners of Shoshone County, Respondents

Supreme Court of Idaho

May 9, 1914

COMPLAINT-GENERAL DEMURRER-COUNTY COMMISSIONERS-ROAD DISTRICTS-HIGHWAYS-JURISDICTION OVER WITHIN CITY LIMITS-BRIDGES-CONSTRUCTION OF-STATUTORY CONSTRUCTION.

1. Held, under the statutes of this state that the city council or village trustees of incorporated cities and villages have the exclusive control of the streets and highways within such corporate limits, and have full power to construct bridges and repair and maintain the same within such corporate limits.

2. Held, that the board of county commissioners have not the control of the roads and bridges within the corporate limits of a city or village, and that they are not required, under the law, to construct and maintain bridges exceeding sixty feet in length at the expense of the county, over streams crossing highways within such corporate limits.

APPEAL from the District Court of the First Judicial District, in and for Shoshone County. Hon. W. W. Woods, Judge.

Application for a writ of mandate to compel the board of county commissioners to construct a bridge over the south fork of the Coeur d'Alene river where it runs through the corporate limits of the town of Kellogg. Writ denied. Affirmed.

Affirmed.

Z. F Pattison, for Appellant, cites no authorities.

Carlton Fox, for Respondents.

Sec 2230, subd. 16, Rev. Stat. of 1887, giving towns and villages the right "to keep in repair, and unobstructed from rubbish, filth, or other deleterious substance, all highways streets and alleys within such town or village," conferred exclusive jurisdiction upon such town or village over such highways, streets and alleys, and therefore the board of county commissioners could not authorize its road overseer, or any road overseer, to go within the limits of any organized town or village to repair or in any way interfere with its streets and alleys.

The reasoning of this case is peculiarly applicable to the case at bar, for the reason that our present laws defining the jurisdiction of incorporated towns and villages over their highways, streets and alleys are much broader than was the law construed in this decision.

In construing sec. 81, act of 1899 (Sess. Laws 1899, p. 208), which is identical with sec. 2242, Rev. Codes (being the section relied on by appellant), together with sec. 887, Rev. Stat. of 1887, which is substantially the same as sec. 893, Rev. Codes (supra), the supreme court of this state held that thereby all control over roads within incorporated cities or villages was taken away from the board of county commissioners. To the same effect is the Village of Sandpoint v. Doyle, 11 Idaho 642, 83 P. 598, 4 L. R. A., N. S., 810.

SULLIVAN, J. AILSHIE, C. J., Concurring Specially.

OPINION

SULLIVAN, J.

This action was brought in the district court for a writ of mandate commanding the board of county commissioners of Shoshone county to remove a bridge which is situated across the south fork of Coeur d'Alene river within the limits of the city of Kellogg, and to compel them to build or construct a new bridge across said stream. A general demurrer was interposed to the amended complaint and sustained by the court, whereupon the plaintiff refused to plead further and judgment of dismissal was entered. This appeal is from said judgment.

The action of the court in sustaining the demurrer is assigned as error, and the question is directly presented whether the county under the law is required to construct and keep in repair said bridge, which it is alleged is more than sixty feet in length, and the contention is based on the provisions of sec. 2242, Rev. Codes, as amended by the twelfth session of the legislature (see Sess. Laws 1913, p. 51). Said section provides, among other things, that "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."

The bridge in question is essential to, and the only means of travel from, that portion of the county lying on one side of the city of Kellogg to that portion of the city lying on the other side thereof. It is contended by counsel for appellant that the section of the statute from which the excerpt above quoted is taken must be construed as a whole and in pari materia with other sections of the statute relating to roads and bridges as well as the respective powers and duties of the board of commissioners, on the one hand, and councils or trustees of incorporated cities and villages, on the other.

Said sec. 2242 as amended is as follows:

"The city councils of cities of the second class and board of trustees of villages shall have the care, supervision and control of all public highways, bridges, streets, alleys public squares and commons within such 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 be kept in repair by the county: Provided, that when any city or village has constructed a bridge over a sixty foot span on any county or state highway within its corporate limits and has incurred a debt for the same, then the treasurer of the county in which said bridge is located shall pay to the treasurer of such city or village seventy-five per cent of all bridge taxes collected in said city or village until said debt and interest upon the same is fully paid: Provided further, that the city council or board of trustees may appropriate in the manner hereinafter provided, a sum not exceeding five dollars per linear foot to aid in the construction of any county bridge within the limits of such city or village on a highway leading to the same, or any bridge across any unnavigable river which divides the county in which said city or village is located, from another state, and that no street or alley which shall hereafter be dedicated to the public use by the proprietor of ground in any city or village, shall be deemed a public street or alley, or be under the use or control of the city council or board of trustees, unless the dedication shall be accepted...