George W. Phelps, Appellant, v. James Hawley et al., Commissioners, etc., Respondents

George W. Phelps, Appellant, v. James Hawley et al., Commissioners, etc., Respondents. Under the act incorporating “ The Leicester Bridge Company ” (Laws of 1887, chap. 888), a bridge was built by such company over the Genesee river, in the county of Livingston. By the act (§ 9), it was provided that in case the bridge should be destroyed and not rebuilt as therein specified, “the bridge shall thereupon become a public bridge, and may be maintained at the expense of the county of Livingston.” The bridge was subsequently swept away, and was abandoned by the company. It was rebuilt by the county and thereafter kept in repair by the adjoining towns of Geneseo and Leicester. Plaintiff, under a contract with the commissioners of highways of said towns, repaired said bridge. In an action against the successors in office of the commissioners who entered into the contract, to recover the contract-price,— Held, that the word “ may ” in the statute was mandatory and imposed the obligation to repair upon the county; that said commissioners had no authority over the bridge and could not bind their towns for its repairs, and that therefore plaintiff could not maintain his action. (Argued December 18, 1872; decided January 21, 1873.) Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, affirming a judgment in favor of defendants, entered upon the decision of the court upon trial at circuit without a jury. (Reported below, 3 Lans., 160.) This action was brought against defendants as commissioners of highways of the towns of Geneseo and Leicester, in the county of Livingston, upon a contract made by their predecessors in office with plaintiff for the repair of a bridge over the Genesee river, which divides said towns of Geneseo and Leicester. Under an act of the legislature incorporating the Leicester Bridge Company (chap. 388, Laws of 1837) a toll bridge was built over the Genesee river. It stood for fourteen years, was then carried away by a freshet, and was abandoned by the company. It was rebuilt by the county of Livingston, and was subsequently taken charge of by the commissioners of highways of the said towns of Geneseo and Leicester, and was kept in repair by said towns thereafter. It was again carried away in 1866 and was rebuilt by said towns, the board of supervisors of the county refusing to rebuild it. One of the abutments becoming out of repair in 1867, the commissioners of highways of said towns jointly entered into a contract with plaintiff by which he agreed to repair the same for the sum of $6,000. Plaintiff performed the contract upon his part. The court below held that the action could not be maintained, and directed judgment. Judgment was entered accordingly. Scott Lord for the appellant. The joint board of commissioners were authorized to contract for repairing the bridge. (3 N. Y. Stat. at Large, 533, 534; Laws of 1857, chap. 383, p. 788; Laws of 1841, chap. 225, § 2, as amended by chap. 383, § 2, Laws 1857; Laws 1841, chap. 225, § 4; 2 Laws 1857, chap. 639, §§ 1, 8:) The towns of G-eneseo and Leicester were primarily liable for the maintenance of the bridge. (Bartlett v. Crozier, 17 J. R., 439; People v. Supervisors of Dutchess, 1 Hill, 53; Hill v. Board of Supervisors of Livingston County, 12 N. Y., 52, 57, 59, 60, 64; 2 R. L., 281, § 38; 1R. S., 524, § 180.) Whether the word “ may,” in section 9, chap. 388, Laws 1837, is to be interpreted “ must,” depends primarily upon the intent of the legislature. (People v. Utica Ins. Co., 15 J. R., 358, 381; Ward v. Whitney, 8 N. Y., 446; Smith on Statutes, § 512.) Whenever the legislature has intended to compel the board of supervisors to build or maintain a bridge, it has used mandatory words. (Laws 1827, chaps. 38, 53, 279; Laws 1828, chaps. 97, 100, 160; Laws 1829, chaps. 3, 8, 74, 103, 200, 250, '283; Laws 1830, chaps. 1,3, 55, 139, 221, 247; Laws 1831, chaps. 6, 110, 148, 163, 199, 201, 244; Laws 1832, chaps. 65,112, 119, 144, 151, 328; Laws 1833, chaps. 73, 82, 124; Laws 1834, chaps. 29, 105, 165, 238, 259, 278, 313; Laws 1835, chaps. 17, 51, 120, 150, 192; Laws 1836, chaps. 89, 91, 95, 107, 120, 146, 150, 160, 172, 189, 215, 225, 236, 383; Laws 1837, chaps. 132, 193, 279, 294.) It is too late for the towns to question the power of their officers to contract or their liability to pay for repairs to the bridge. (Fisler v. La Rue, 15 Barb., 323; Ang. & Ames on Corp., 216, 218, chap. 8, § 8, and cases cited; Thomas v. Fleury, 26 N. Y., 34.) Geo. F. Damforth for the respondents. The commissioners had no power to pledge the credit of the towns to carry out the contract. (Barber v. Loomis, 6 Hill, 463; Mather v. Crawford, 36 Barb., 564.) They were not obliged to repair the bridge. (Garlinghouse v. Jacobs, 29 N. Y., 297; Robinson v. Chamberlain, 34 id., 403.) The duty to provide for the construction and maintenance of this bridge is imposed upon the board of supervisors of Livingston county. (Laws 1837, chap. 388, § 11, p. 432.) People v. Supervisors County Dutchess, 1 Hill, 50; Hill v. Bd. of Supervisors Livingston County, 12 N. Y., 52.) , [MAJORITY — Peokhah, J.] Peokhah, J. The only question involved in this case is, upon whom rests the obligation of maintaining the bridge in Livingston county, between the towns of Geneseo and Leicester, over the Genesee river. The plaintiff repaired the bridge upon the employment of the former commissioners of highways of those towns, at an expense of $6,000, and sues their successors therefor. Defendants insist that the bridge is a county charge. Whether it is so or not depends upon the construction to be given to the language of the act incorporating the “ Leicester Bridge Company” to construct a bridge at this point in 1837. In the ninth section of that act it was provided that if the bridge shall not be completed within three years, or if, when completed, it should be impassable for fifteen days for want of repairs, unless carried away by unavoidable accident, or if the same shall not be rebuilt within eighteen months, then “ the bridge shall become a public bridge, and may be maintained at the expense of the county of Livingston.” (Laws of 1837, § 9.) Was this permissive or mandatory to the county ? . There are reasons why it should be mandatory. It appears that the stream to be crossed is a river, and the expense of the construction and repair of a bridge would be very onerous to the two opposite towns; more so then, probably, than now. The corporation, chartered in 1837, that first constructed the bridge, with the right to take toll for thirty years if kept in repair, etc., abandoned the bridge when it was swept off some fifteen years after the charter. It could not be made , profitable. The county of Livingston then rebuilt it. The course of legislation as to bridges over that river shows the legislative sense, that they should be substantially a county charge; three or four having been built by the county under statute authority. Again, if this act be merely permissive to the county it confers little if any substantial additional power. The county then had authority to build it or to aid any town or towns in its construction, in a limited way, in its discretion. (1 R. S., 524, § 119, citing the statute 2 R. L., 281, § 33.) Again, the towns, on opposite sides of a stream, at that time had no regulation by statute, no organization to be put in motion to accomplish the construction of a bridge. The first act passed upon that subject was in 1841. (Laws of 1841, p. 207.) Under that act bridges could be built though towns were reluctant to do their duty. (See Hill v. Board of Supervisors of Livingston County, 12 N. Y., 52.) There would thus seem to have been a propriety in 1837 that the county should have maintained this bridge. But the act contains apt and legal language to require the county to do it. It says it shall “ become a public bridge, and may be maintained” by the county. This is a direction to a public body (not an option to a private person or corporation), in the execution whereof the inhabitants of that county have a pecuniary interest. In fact, the public generally may be said to have such an interest. Where persons or the public have an interest in having the act done by a public body, “may,” in such a statute, means “ must.” (Newburgh Turn. Co. v. Miller, 5 J. C., 113; Malcolm, v. Rogers, 5 Cow., 188.) This rule must prevail where there is nothing that would evince a contrary intention in the statute or in the surrounding facts. This disposes of the question. It is conceded, as it well may be, that if the county by this act was required to maintain this bridge, no act of the commissioners could bind the town, as they then had no authority over the bridge. Its maintenance was specially provided for. Whether the commissioners can involve the towns in debt without limit for bridges it is not necessary to decide. The judgment should be affirmed. All concur. Judgment affirmed.