commodation of the inhabitants of each and payment enforced under statutory authority.921 A highway fund established by law for the repair and improvement of highways cannot be used for any other purpose.' 922 Protest by property owners. The rights of property owners to authorize upon petition or to protest against the making of a public improvement will depend upon the language of a particular statute or ordinance and the construction given.923 They can only be exercised in strict accordance with such provisions.924 People v. Queens County Sup'rs, 112 N. Y. 585. 921 Dewhurst v. Allegheny City, 95 Pa. 437; Town of Jamaica v. Town of Wardsboro, 45 Vt. 416. 922 Higgins v. City of San Diego, 131 Cal. 294, 63 Pac. 470; Bean v. Inhabitants of Hyde Park, 143 Mass. 245, 9 N. E. 638. Moneys appropriated for the repair of highways cannot be used for laying out new roads. Hennessey v. City of New Bedford, 153 Mass. 260, 26 N. E. 999; Clay v. Postal Telegraph-Cable Co., 70 Miss. 406; City of Paterson v. Chosen Freeholders of Passaic County, 56 N. J. Law, 459, 29 Atl. 331. And the converse rule also applies that moneys from funds raised for other purposes cannot be used for this particular one. Watson v. City of Passaic, 46 N. J. Law, 124; Hurley v. City of Trenton, 67 N. J. Law, 350, 51 Atl. 1109; People v. Wilson, 46 Hun (N. Y.) 134; Stephens v. City of Spokane, 14 Wash. 298, 44 Pac. 541, 45 Pac. 31. 923 McEneney v. Town of Sullivan, 125 Ind. 407. The determination of a board of town trustees that a petition for the making of a street improvement has been signed by the requisite number of property owners cannot be collaterally attacked, and is conclusive in an action testing the validity of the assessment. Abb. Corp. Vol. II-8. Marshall v. City of Leavenworth, 44 Kan. 459; Barber Asphalt Pav. Co. v. Gogreve, 41 La. Ann. 251; City of Baltimore v. Boyd, 64 Md. 10; Aplin v. Fisher, 84 Mich. 128. The question of whether a majority of property owners have signed the petition for the improvement of a street may be inquired into in a collateral proceeding although a township board has previously decided that a sufficient number have signed. Kountze v. City of Omaha, 63 Neb. 52, 88 N. W. 117; Chalmers v. Town of Andover, 63 N. H. 3. See People v. City of Utica, 65 Barb. (N. Y.) 1, as to what constitutes an estoppel on the part of property owners to protest against the making of a street improvement. 924 Kirkland v. Public Works of Indianapolis, 142 Ind. 123. The term "resident freeholders" as found in Rev. St. 1894, § 3844, applies only to such persons residing on a particular street upon which the improvement is contemplated. Barker V. Wyandotte County Com'rs, 45 Kan. 681, 26 Pac. 585. A property owner is not estopped where he has no knowledge of a jurisdictional defect in the proceedings either at the time they were instituted or contemplated. Forbis v. Bradbury, 58 Mo. App. 506; Clinton v. City of Portland, 26 Or. 410; A canal constructed and operated by the state for the purpose of transporting, either free or for compensation, freight or passengers, is considered a public highway, and the expenditure of public moneys under such conditions will be justified.92 § 431. Construction of bridges. A bridge, from a legal standpoint, is considered a highway.926 The state has the right to erect or authorize the erection of bridges whenever and wherever it may deem them necessary for the convenience of the public as a part of its system or means of communication. Having this right, it may authorize the con Armstrong v. Ogden City, 12 Utah, nel between banks more or less de476, 43 Pac. 119. 925 New York & B. Saw-mill & Lumber Co. v. City of Brooklyn, 71 N. Y. 580, following Russell v. City of New York, 2 Denio (N. Y.) 461, and Martin v. City of Brooklyn, 1 Hill (N. Y.) 545. Hubbard v. City of Toledo, 21 Ohio St. 379; Nelson v. Fleming, 56 Ind. 310. V. 926 San Luis Obispo County White, 91 Cal. 432, 24 Pac. 864, 27 Pac. 756. Cal. Pol. Code, § 2618, defines a bridge to be a highway. Parke County Com'rs v. Wagner, 138 Ind. 609, 38 N. E. 171. In construing a statute authorizing the construction and repair of bridges over water courses, the latter are defined as consisting of "bed, banks and water" "a running stream confined in a channel but not necessarily flowing all the time." Carroll County Com'rs v. Bailey, 122 Ind. 46. A culvert or arched passage way constructed for the purpose of draining surface water, not a bridge. The court defines the latter to be "A structure erected over a river, creek, pond, lake or stream of water flowing in a chan fined, although such channel may be occasionally dry, in order to facilitate public passage over the same." State v. Morris, 43 Iowa, 192. Oliff v. City of Shreveport, 52 La. Ann. 1203. Although a railroad is a public highway in a restricted sense, a railroad bridge is not open to travel by the general public free of charge. State v. Town of Canterbury, 28 N. H. (8 Fost.) 195; Crosby v. Town of Hanover, 36 N. H. 404; Huggans v. Riley, 125 N. Y. 88; Pittsburg & W. E. Pass. R. Co. v. Point Bridge Co., 165 Pa. 37, 26 L. R. A. 323; Westfield Borough v. Tioga County, 150 Pa. 152. 927 Gilman v. Contra Costa County, 5 Cal. 426; Fall v. Sutter County, 21 Cal. 237; Toll Bridge Co. v. Osborn, 35 Conn. 7. The right to build around wharves will not be included in the grant of a power to erect a toll bridge. Brown v. Towns of Preston & Ledyard, 38 Conn. 219; Young v. Harrison, 6 Ga. 130; St. Clair County v. People, 85 Ill. 396; Shelby County Com'rs v. Blair, 8 Ind. App. 574, 36 N E. 216. A mill race held a water struction of free bridges from the public revenues, 928 or where the cost of such construction is unusually large, it may charge a toll course in this case over which county commissioners are authorized to construct a bridge. Wrought Iron Bridge Co. v. Hendricks County Com'rs, 19 Ind. App. 672, 48 N. E. 1050. The power to construct bridges does not accompany the power to establish highways. Special statutory provisions control. Bingham v. Marion County Com'rs, 55 Ind. 113. Under Ind. Laws the county commissioners are vested with the discretionary power of passing upon the question of the necessity for the construction of a bridge. Berube v. Wheeler, 128 Mich. 32, 87 N. W. 50. Naegely v. City of Saginaw, 101 Mich. 532, defining a stream as "navigable for boats or vessels of fifteen tons burden" within the meaning of How. St. § 495. State v. Gilmanton, 14 N. H. 467. Statutes prohibiting the obstruction of navigable streams necessarily limit the right to authorize the construction of a bridge. State v. Freeholders of Essex, 23 N. J. Law (3 Zab.) 214. The building of bridges under the N. J. Laws is a discretionary power intrusted to the boards of chosen freeholders of the counties to be exercised by them in all respects at their discretion. Bergen County Chosen Freeholders v. State, 42 N. J. Law, 263. But if a board of chosen freeholders wilfully refuse to build a bridge or repair a bridge where it is necessary for the public use and convenlence they may be indicted and convicted for maintaining a nuisance. Spencer v. Chosen Freeholders of Hudson County, 66 N. J. Law, 301, 49 Atl. 483. In re Freeholders of Irondequoit, 68 N. Y. 376. The statutory authority for the construction of a bridge over "streams" does not authorize bridging bays, marshes or other bodies of water which are not streams. 928 Washer v. Bullitt County, 110 U. S. 558; Garland v. Board of Revenue, 87 Ala. 223. An act will be held invalid if it authorizes the expenditure of such an amount of public moneys as will cause a county to run in debt in excess of a constitutional limit. Fones Hardware Co. v. Erb, 54 Ark. 645, 13 L. R. A. 353. The construction of a bridge must conform to existing statutes requiring an appropriation by the proper authorities before there can be a legal expenditure of public moneys. Andrews v. Ada County Com'rs, 7 Idaho, 453, 63 Pac. 592. The expenditure of such moneys must necessarily be according to the statutory provisions regulating the disbursement of public moneys. Shaw v. Dennis, 10 Ill. 405; Smith v. Miami County Com'rs, 6 Ind. App. 153, 33 N. E. 243; Barrett v. Brooks, 21 Iowa, 144. The cost may be partially assumed. Oliff v. City of Shreveport, 52 La. Ann. 1203; City of Baltimore v. Stoll, 52 Md. 435; Schneider v. City of Detroit, 72 Mich. 240, 40 N. W. 329, 2 L. R. A. 54; State v. Renville County Com'rs, 83 Minn. 65, 85 N. W. 830. Holding Laws of 1889, c. 271, valid as not contravening the for their use.929 The construction of bridges by private individuals may be also authorized.930 This power of the state, however, is always subject to the paramount right or power of the Federal government granted by the constitution to control and regulate the use of navigable waters used or capable of being used for interstate commerce. It is necessary, therefore, that, in the manner prescribed by Congress, permission be secured for the erection. of either a public or private bridge over navigable waters,931 and constitutional provision that an act should not contain more than is expressed in its title. Kelley v. Kennard, 60 N. H. 1. Private aid may be accepted. Platt v. Craig, 66 Ohio St. 75, 63 N. E. 594. 94 Ohio Laws, p. 175, providing for the building of bridges over navigable streams held unconstitutional as being special legislation violating constitution, art. 13, § 1. In re Pequea Creek Bridge, 68 Pa. 427. Officers intrusted by law with the power to erect a bridge must act. In re City Ave. & Germantown Bridge, 164 ra. 394. 929 Young v. Buckingham, 5 Ohio, 485; Pittsburg & W. E. Pass. R. Co. v. Point Bridge Co., 165 Pa. 37, 26 L. R. A. 323. 930 Stanislaus Bridge Co. v. Horsley, 46 Cal. 108; McCartney v. Chicago & E. R. Co., 112 Ill. 611. A municipal corporation having the power to build a bridge may authorize this to be done by a private corporation. Maxwell v. Bay City Bridge Co., 46 Mich. 278; Attorney General v. Stevens, 1 N. J. Eq. (Saxt.) 369; Lister v. Newark Plank Road Co., 36 N. J. Eq. (9 Stew.) 477; In re East River Bridge, 75 Hun, 119, 27 N. Y. Supp. 145. A grant of power includes necessarily a control of the manner in which the bridge shall be constructed. Gordon v. Strong, 3 App. Div. 395, 38 N. Y. Supp. 922; Freeholders & Commonalty of Southampton V. Jessup, 162 N. Y. 122; Schuylkill Bridge Co. v. Frailey, 13 Serg. & R. (Pa.) 422, construing the right of a county to tax a bridge erected under Pa. St. April 11, 1799. Oliver v. Thompson's Run Bridge Co., 197 Pa. 344; Jones v. Keith, 37 Tex. 394; Hudson v. Cuero Land & Emigration Co., 47 Tex. 56; Plecker v. Rhodes, 30 Grat. (Va.) 795; Town of Grand Isle v. Kinney, 70 Vt. 381, 41 Atl. 130. 931 Cox v. State, 3 Blackf. (Ind.) 193; Perley v. Chandler, 6 Mass. 454; Inhabitants of Arundel v. McCulloch, 10 Mass. 70; Smith v. Omaha & C. B. R. & Bridge Co., 97 Iowa, 545, 66 N. W. 1041; Lincks v. Amend (N. J. Eq.) 32 Atl. 755; People v. Kelly, 76 N. Y. 475; Covington & C. Bridge Co. v. Magruder, 63 Ohio St. 455, 59 N. E. 216; Works v. Junction Railroad, 5 McLean, 426, Fed. Cas. No. 18,046; Cardwell v. American Bridge Co., 113 U. S. 205; Stone v. Farmers' Loan & Trust Co., 116 U. S. 307; Hamilton v. Vicksburg, S. & P. R. Co., 119 U. S. 280; Rhea v. Newport News & M. V. R. Co., 50 Fed. 16. Where a navigable stream is entirely within the limits of a state and therefore not capable of being used for interstate commerce, the the manner in which constructed or mode of construction may be regulated and prescribed by the proper Federal authorities.932 The principle usually obtains in this respect, however, that until Congress has acted, the state may authorize the construction of bridges. over navigable waters, although later, if Congress should act, a bridge constructed under state authority may be condemned and destroyed or its reconstruction directed because of its being an obstruction to navigation." § 432. Cost. 933 Where a bridge lies entirely within the limits of one corporation, there is no difficulty in determining the responsibility for its cost and maintenance.934 provisions of the Federal Constitution will not apply. Sands v. Manistee River Imp. Co., 123 U. S. 288. "The internal commerce of a state, that is, the commerce which is wholly confined within its limits, is as much under its control as foreign or interstate commerce is under the control of the national government." Lake Shore & M. S. R. Co. v. Ohio, 165 U. S. 365. "That full power resides in the states as to the erection of bridges and other works in navigable streams wholly within their jurisdiction in the absence of the exercise by Congress of authority to the contrary is conclusively determined." 932 United States v. Pittsburgh & L. E. R. Co., 26 Fed. 113; Newport & C. Bridge Co. v. United States, 105 U. S. 470; Missouri River Packet Co. v. Hannibal & St. J. R. Co., 1 McCrary, 281, 2 Fed. 285. 933 Newport & C. Bridge Co. v. United States, 105 U. S. 470; Lake Shore & M. S. R. Co. v. Ohio, 165 U. S. 365; United States v. Keokuk & H. Bridge Co., 45 Fed. 182. 934 Logan County Sup'rs v. People, 116 Ill. 466, construing Ill. Road & Bridge Law of 1883, with regard to the speedy rebuilding of a bridge in case of an emergency. Kansas City Bridge & Iron Co. v. Wyandotte County Com'rs, 35 Kan. 557; State v. Proprietors of Norridgewock Falls Bridge, 65 Me. 514; Inhabitants of Westbrook v. Inhabitants of Deering, 63 Me. 231. A new town formed by the division of territory is not liable for any portion of the cost of a bridge located entirely within the limits of the other town, although the vote authorizing its construction was taken before the division. Montague Paper Co. v. Burrows, 121 Mass. 88. The cost of construction includes damages to owners of adjoining lands caused by the erection of the bridge. Wrought Iron Bridge Co. v. Jasper Tp., 68 Mich. 441, 36 N. W. 213; Frenchtown Tp. v. Monroe County Sup'rs, 89 Mich. 204. County supervisors have no power to require a contribution from a township in which no part of a bridge is located although such township may have a special interest and receive an advantage from its construction. In re Saw-Mill Run Bridge, 85 Pa. |