Town of Highgate v. State

Towns. Highways and Bridges. Acts of 1884, Hos. 11 ■ and 18. Aid from the State. Construction of Statutes. Constitutional Bato. 1. Two statutes, Nos. 11 and IS, Acts oí 1884, related to tlie same tiling, tlie same class of persons, and liad the same object in view, namely, relief to towns excessively burdened in building or rebuilding their bridges. The remedy afforded by one is against the State, and by tlie other against an adjoining town; Held, that they were in pari materia, and should be construed as one statute. 2. Construing both acts as one in a proceeding against the State, commissioners should be sworn, and there should be an apportionment of expenses, the same as in a proceeding against a town. 3. CONSTITUTIONAL Law. Act STo. 11, Acts of lSSl, granting aid from the State to a town excessively burdened in building its highways and bridges, appropriated no specific sum therefor, but directed the auditor to draw orders on the state treasurer for the amount required by judgments rendered by the courts against the State in proceedings under the act; and at the same session a genera] appropriation act was passed ‘‘ tor the purpose oí paying such demands against the State as may lie allowed by the auditor oí accounts”; Held, that the statute does not violate that section of the Constitution which provides that “ no money shall he drawn out of the treasury, unless first appropriated by act of legislature.” 4. Equal Taxation. A general statute, applying to all highways under like conditions, granting aid from the State to towns excessively burdened in building or rebuilding highways, does not violate the principle of equal taxation.

RetitioN under No. 11 of the Acts of 1884. Heard on the report of commissioners, September Term, 1885, Franklin County, Walker, J., presiding. Tbe petition was signed by the selectmen of Highgate. The practice in this case was like that in Sheldon v. Stale of Vermont, ante; that is, the petition and citation were served on the state’s attorney; there was a recognizance; commissioners were appointed, and they returned their report to the County Court. The petition set forth ; £ £ That said town deems itself excessively burdened by being required to build and maintain the necessary highways and bridges lying and being wholly in said town ; that said town is burdened with the expense of building and keeping in repair a large amount of highways in said town, for the convenience and travel of the public; that in addition to said highways the said town is compelled to build, maintain and keep in repair, at great expense, seven bridges which cross what is called Rock River, which said bridges lie wholly in said town, and have to be maintained at the sole expense of said town; that said town is compelled to build and maintain about throe hundred rods of marsh bridges, or wharf roads, in the west part of the town, near the shores of Lake Champlain, at a groat expense to said toivn, which expense has to be borne wholly by said town; that said town is compelled to build and maintain a large bridge at a great expense across what is called Hunger-ford Brook, which is incurred wholly at the expense of said town; that the said town is compelled to build and maintain a long covered bridge which crosses the Missisquoi River at East Highgate, which is also wholly at the expense of said town; that said town is compelled to build and maintain a long covered bridge across the said Missisquoi River at Highgate Falls at great expense, which has to be borne wholly by said town of Highgate, besides quite a largo number of other small bridges which lie in s;iid town, which are of great expense to the said town of Ilighgate, and’ said town feels itself excessively burdened by being required to build and maintain the aforesaid bridges and highways.” The commissioners found: “ We find that the town of Ilighgate is obliged to build and maintain, wholly in said town, seven bridges across Rock River, the average cost of suitable bridges across said river being about $500 each, a large bridge across Hungerford' Brook, a large and expensive bridge across the Missisquoi River at East Ilighgate, about 300 rods of graded highway on the shore of Lake Champlain, and the bridge.in question at Keyes Falls, besides a number of smaller bridges and culverts; that said bridges and culverts have been built and maintained by said town at large and unusual expense; that owing to the formation of the land and soil, and the number of highways in said town, the town is at a large annual expense to maintain its ordinary highways. “We find that the grand list of the town of Highgate is §7,600, and the population about 2,000, and the present bonded indebtedness of said town is §37,000; said §37,000 being the balance now remaining unpaid of the §50,000 of bonds of said town, which were issued by vote of said town; in aid of the construction of the Lamoille Valley railroad, and being the only indebtedness now outstanding against said town; that the town tax for the past ten years for ordinary town expenses has been from 40 to GO per cent on a dollar of the grand list of said town, and to rebuild said bridge would require a tax of about 200 per cent on the dollar of the grand list of said town; and not taking into account the bonded indebtedness of said town, we find that it would bo excessively burdensome to the taxpayers of said town to rebuild said bridge and abutments, and approaches thereto ; and that the bridge is situated upon a thoroughfare much traveled by the general public, and that the towns of Franklin, S wanton, Sheldon and St. Albans will be benefited and accommodated by the use and travel of their inhabitants over such bridge. “Wo find that the sum necessary to construct a proper bridge across the river at said point, with proper abutments and approaches thereto, will be §14,000, and the tiinc required to construct said work will be six months. “ By request of the state’s attorney, we find and report the following facts : That there was no evidence before us showing that the indebtedness of the town of Ilighgate was any larger or more burdensome to the taxpayers of said town than that of Sheldon, Swanton or St. Albans ; that the bridge in question, and the 'one at East Ilighgate, are the only bridges over the Missisquoi Eiver that are maintained by the town of Ilighgate; that the towns of Swanton, Sheldon, Enosburgh and Berkshire each maintain two bridges over said river, and that the number of bridges that are maintained by other towns on smaller stream was not shown; that there was no evidence before us of any expense that had been incurred by said towns by reason of their highways and bridges, other than the expense incident to maintaining said highways and bridges, such as rebuilding and repairing the same, and such as said town has maintained for many years past, and is by law required to build and maintain ; that while the bridge in question is a convenience to the people of many "towns, and to all of those named in the petition in this case, it is at the same time not only a convenience, but a necessity to a greater portion of the inhabitants of the town of Iiighgate. ‘ ‘ By request of petitioner’s counsel, we further find and report that the burden of said town of Ilighgate, in being required to build and maintain the Keyes bridge, and other bridges and highways in said town, is greater, relatively, than that resting on either of the other towns benefited by the use and travel "of its inhabitants over said bridge, except the town of Sheldon, in the building and maintaining of the other bridges and highways in said towns respectively; and that the said town of ilighgate is excessively burdened by being required to build and maintain said Keyes bridge, as compared with the burden imposed on other towns in said county by law to build and maintain bridges in said towns respectively, except the towns of Kichford and Montgomery, in regard to whose burdens no evidence was offered.” The petition to the court, the appointment of commissioners, the commission to the commissioners, and the report of the commissioners, show that all the requirements of the statute have been complied with. No. 11, Acts of 1884; Woodstock v. Gallup, 28 Yt. 590. The power to prescribe how and when highways and bridges shall be laid out, built, repaired and maintained, under whose supvervision, and how the expenses thereof shall be paid, and by whom, is vested solely in the legislature. The power is not limited by any constitional provision, except the general limitation that taxation shall be equal, and that private property cannot bo taken for public uses without an equivalent. The legislature early exercised this power, and from time to time since. See Revisión of 1808, p. 445 ; do. 1824, p. 457 ; Rev. Stat. p. 123; Comp. Stat. p. 161; Gen. Stat. p. 193; Rev. Laws, s. 2913. The County Court has jurisdiction. The jurisdiction thus conferred is analogous to the jurisdiction of the court in other highway cases which is a limited jurisdiction. State v. Wil-liston et al. 31 Yt. 157. The court has jurisdiction only in cases mentioned in the first' section of the act. When such a case is before it, it shall render judgment as provided in other highway cases. What these words mean was commented on fully by Powers, J., in Sharon v. Stafford, 56 Vt. 421. As to the jurisdiction of the court in the highway cases, see R. L. ss. 2941-4, 2969, 2975. Upon what question, the jurisdiction having attached, is the court required to pass upon by its judgment?' It is submitted that is simply and solely the question as to whether or not the bridge, highways or repairs ought to bo required to he built, made or maintained. It is simply whether a bridge, which a town is bound by general laws to build, maintain and keeq> in repair, and which, on account of long use and decay, has become wholly unfit for use and dangerous to travel, and which it is not advisable or profitable to repair, should be rebuilt. All other.questions involved in the case are jurisdictional. Jurisdiction is conferred on the court to pass upon said question by its judgment in these cases. First. Whenever any town deems itself excessively burdened by being required to build and maintain any highway or bridge being wholly in such town; or Second. When such town is under the necessity of rebuilding any bridge or highway in such town ; or Third. When any town is obliged to lay out money in the repair of roads established and already laid out, in said town ; and, When the highway or bridge is one which the town is bound by general law to build, maintain and keep in repair, and when other towns in Ihe vicinity are deemed to be benefited. The report finds that on the hearing before the commissioners no evidence was introduced of any expense incurred by said town by reason of its highways and bridges, other than the expense incident to building and maintaining the same, as said town is by law required to do under its common duty. The report further finds, that while the bridge in question is a convenience to many towns, it is not only a convenience but a necessity to the greater portion of the inhabitants of Iligh-gate. The petitioning town is not entitled to the relief prayed for, if the bridge in question is a necessity to any of the inhabitants of the petitioning town. Laws of Vermont, 1884, No. 18. It was not the intention of the legislature to remove the burden, or any part of it, from the town, where the other towns are especially benefited by such bridge, now parrying burdens, considering population and grand list as great or greater than the petitioning town. Weybridge v. Addison, 57 Vt. 578. The commissioners, in substance, find that the town of Sheldon is as much burdened as the town of Higligate, and do not state the. grand list or debt of the towns of Sheldon or Franklin. By a comparison of the grand lists and indebtedness of two towns named in the petition, as reported, and from which the finding of the commissioners was made, the, court will see that the burden resting upon the town of Higligate is not quite five times its" grand list,; that of Swanton nearly six times its grand list; that of the town of St. Albans, excluding its village debt, nearly five times its grand list, and including the village debt, over ten times its grand list; and that of the village of St. Albans alone, excluding the town debt, over ten times its grand list. So that from the facts' reported the court must say upon this question that the petitioning town has failed to show that it is excessively burdened, even if the view taken by the commis-si oners of the matters ’to be considered in determining that question is held to be correct. It is the policy of the State to make each town sustain the burden of building the roads and bridges within its limits ; and, as a rule, such burden is not an excessive one. Sharon v. Strafford, 56 Vt. 421; Weybridye v. Addison, 57 Yt. 569."