#### The State, ex rel. Bushnell, as Trustee, etc., *v.*The Board of County Commissioners of Cuyahoga County.

*County commissioners*— Bridges—Construction *limited to existing roads*— Sections *2421 and 7557, General Code*— Power *to connect two roads*— Bonds *authorized by electors*— Section *5638, General Code*— Acquisition *of roadway and limitation of total expenditure.*

Sections 2421 and 7557, General Code, do not authorize the hoard of county commissioners to build bridges other than on established roads. Such board is without power to connect two state or county roads by a bridge, without first laying out and acquiring a road connecting such state or county roads. But where such board has been authorized by a vote of the electors under Section 5638, General Code, to expend in excess of $18,000 in the construction of a bridge on a given site connecting two state or county roads, it may thereafter lay out and acquire a road on such site, and then construct the bridge within the limitations of the authorization.

(No. 17683

Decided May 1, 1923.)

Error to the Court of Appeals of Cuyahoga county.

We have adopted the statement of the case as made by the plaintiff in error, defendant in error having accepted that statement as correct.

In October, 1914, the board of county commissioners of Cuyahoga county passed a resolution declaring that it was necessary to build a high-level bridge over the Cuyahoga river in the city of Cleveland from Lorain avenue to a point in Ontario street in the proximity of Huron road and that there should *466be issued for that purpose bonds of Cuyahoga county in the aggregate sum of $5,000,000, and that the question of the policy of making such expenditure should be submitted to the voters at the general election on November 3,1914.. This submission was accordingly made and.the ballot resulted: In favor of the expenditure, 69,048; against the expenditure, 45,-360.

No further steps were taken toward the issuance of these bonds until October 8, 1920, when the county commissioners published a notice of their intention to purchase land for the site of the bridge (preliminary plans for which had been prepared), describing the strip of land so to be purchased and calling a public meeting for November 8, 1920, to consider the purchase of the land. On December 8, 1920, the county commissioners passed a resolution providing for the immediate issuance of $500,000 of the $5,000,000 of bonds. Thereupon this relator requested the county prosecutor to commence an action enjoining the issuance of the bonds, and upon his refusal to do so filed his petition in the court below.

Lorain avenue forms the northerly portion of a state road, laid out under authority of a special act of the Legislature passed February 22, 1833, commencing on the west bank of the Cuyahoga river and proceeding westerly to Elyria, in Lorain county. The road as opened, however, did not reach the Cuyahoga river, nor within about 2,500 feet thereof, but terminated on the high ground near the southwesterly side of the valley through which the Cuyahoga river flows. The easterly end of the proposed bridge rests a few hundred feet from the state *467road from Akron to Cleveland, now known at this point as Ontario avenue, which runs approximately at right angles to the road above described, Lorain avenue, and terminates at the south end of the northeast line of old Ontario street in the village of Cleveland, as laid out in the original village plats. This state road passes about 500 feet from the Cuyahoga river, on the northeasterly side thereof.

The bonded indebtedness upon Cuyahoga county and the various municipalities therein had increased from approximately $74,000,000 to about $154,500,-000 in the period between 1914 to 1921. The purchasing power of the $5,000,000 voted in 1914 had been reduced by one-third to one-half, so that the expenditure of $5,000,000 would fail utterly to produce what the voters thought in 1914 it would produce. The bridge as planned by the county officials over the specified route, or any adequate bridge, could not be built in 1921 for less than $8,000,000, nor without issues in excess of the $5,000,000 authorized. ■

The cause was taken to the Court of Appeals upon appeal, where the petition of present plaintiff in error was dismissed. The cause is here upon error to the Court of Appeals. There was filed in this court by the defendant in error an “Answer to Petition in Error,” which answer recites:

“Defendants in error show that since the commencement of these proceedings in error, to-wit, on the 15th day of July, 1922, these answering defendants in error passed the following resolution, to-wit:

“ ‘Resolution in the matter of rescinding any authorization for sale of bonds for construction of *468preliminary work upon proposed Lorain-Huron bridge.

“ ‘Be it resolved by the board of county commissioners of Cuyahoga county, Ohio, that any authorization for sale of bonds for the construction of preliminary work upon the proposed Huron-Lorain bridge matter heretofore passed by the board of county commissioners be and the same is hereby rescinded and held for naught.’

“On motion of Commissioner Dittrick, seconded by Commissioner Geldenbogen, the foregoing resolution was duly adopted.

“Ayes: Dittrick, Goldenbogen and Zmunt.

“Nays: None.

“Resolution adopted. * * *

“And further that on the said 15th day of July, 1922, these plaintiffs [defendants] in error passed the following resolution:

“ ‘Resolution instructing county engineer to prepare necessary plans and estimate covering proposed Lorain-Huron bridge.

“ ‘Be it resolved by the board of county commissioners of Cuyahoga County, Ohio, that the county engineer be and he is hereby instructed to prepare the necessary plans and estimate covering the cost of the proposed Lorain-Huron bridge.’

“On motion of Commissioner Dittrick, seconded by Commissioner Gloldenbogen, the foregoing resolution was duly adopted.

“Ayes: Dittrick, G-oldenbogen and Zmunt.

“Nays: None.

“Resolution adopted.”

The answer further avers that the commissioners do not intend to proceed with the construction of *469the bridge, the acquisition of the approaches thereto, or the procurement of the land for the site of the bridge and abutments, and do not propose to take any further action in the matter until the survey shall have been completed and the report made of the same, and that if they do not find it practicable or desirable to proceed with the construction of the bridge, or find that the funds to be derived from the total issue of the bonds will be insufficient to complete the structure, they do not intend and will not proceed with the construction of the bridge until they have received authority from the electors of the county to complete the same; that, if the survey shall disclose that another site is more desirable, then the Huron-Lorain site will be abandoned and under proper proceedings another be chosen.

*Messrs. .Cook, McGowan, Foote, Bushnell S Lamb,*for plaintiff in error.

*Mr. Edward C. Stanton,*prosecuting attorney; *Mr. Geo. C. Hansen, Mr. E. J. Thobaben*and *Mr. Harry E. Parsons,*assistant prosecuting attorneys, for defendant in error.

Robinson, J.

The answer of the defendant in error, while a disclaimer of intention to issue bonds-under the resolution of the board of December 8, 1920, does not amount to a disclaimer of intention to erect the Huron bridge upon the site indicated in the original resolution. It does, however, make a moot question of the inquiry as to the power of the board of county commissioners to expend the $5,000,000 authorized by the electors of the county, or any portion of it, in the acquisition of the site and the erection of a bridge, the aggregate cost of *470which will be in excess of that amount, and this court, respecting the good faith of the defendant in error will not consider that question further than to state that it adheres to the doctrine enunciated in the case of *State, ex rel. Stanton,*v. *Andrews,*105 Ohio St., 489, 138 N. E., 873. Nor will it attempt in this case to pronounce a rule defining what lapse of time, or what intervening circumstances, will render stale an authorization to expend in excess of $18,000, under Sections 5638 and 5642-1, General Code, being of opinion that in the instant case there has been no showing which would make the authorization stale.

This cause will be here decided upon the power of the board of county commissioners to build bridges under the provisions of Sections 2421 and 7557, General Code. The source and extent of the power of the board of county commissioners is statutory. The power to build bridges within municipalities is conferred by Section 2421, General Code:

“The commissioners shall construct and keep in repair necessary bridges over streams and public canals on state and county roads, free turnpikes, improved roads, abandoned turnpikes and plank roads in common public use. * * *”

And by Section 7557, General Code:

“The county commissioners shall cause to be constructed and kept in repair, as provided by law, all necessary bridges in villages and cities * * * on all state and county roads, free turnpikes, improved roads, transferred and abandoned turnpikes and plank roads, which are of general and public utility, running into or through such village or city.”

*471It is conceded by counsel for the board of county commissioners that these sections do not authorize the board to build bridges other than “over streams and public canals on state and county roads, free turnpikes, improved roads,” and over “transferred and abandoned turnpikes and plank roads, which are of general and public utility,” whether within or without a municipality; but it is the contention of the defendant in error that the site of the proposed Huron-Lorain bridge is substantially upon two state roads, in that the western terminus of the bridge will rest upon such a road and the eastern terminus will rest near another such road, and much reliance is placed upon the decision of the circuit court of Cuyahoga county in the case of *State, ex rel. Howell,*v. *Eirick et al., Commrs.,*reported in 14 Ohio Cir. Ct. R. (N. S.), 577, and 17 Ohio Cir. Ct. R. (N. S.), 331, affirmed by this court without opinion in 84 Ohio. St., 503, 95 N. E., 1156. That case, however, is readily distinguishable from the instant case, in that the bridge in question there was built as nearly as practicable on a state or county road; it being necessary from a practical engineering standpoint to make the bridge straight rather than to follow the sinuosities of the theretofore existing state or county road. Nor does it follow, because the decision of the circuit court was affirmed in that case by this court without opinion, that, in the absence of a specific declaration to. that effect, this court adopted the reasoning of the court below; such affirmance being effective only to sustain the judgment and to make the enunciation by the court below the law of the case.

*472In *the*instant case the Brooklyn-Carlisle road, upon which it is proposed to rest the southwestern terminus of the bridge, was laid out in 1833 as beginning at the southwesterly bank of the Cuyahoga river and running in a general southwesterly direction to the township of Carlisle, in Lorain county. That part, however, of the Brooklyn-Carlisle road which was actually opened up and subsequently included within the municipal limits of the city of Cleveland, and known as Lorain street, was never opened beyond the brow of the hill, about 2,500 feet distant from the southwesterly bank of the Cuyahoga river, and no road has ever existed beyond that point. By virtue of a statute thereafter enacted (Section 4636, Revised Statutes [51 O. L., p. 303]), to the effect that “any state road or part of such road which has heretofore been authorized, which remains unopened for public use for the space of ten years, shall be vacated and the authority for opening revoked for non-user,” the authority for opening that portion of the Brooklyn-Carlisle road from the brow of the hill to the river was revoked for nonuser. There was not, therefore, in 1914, nor has there since been, any county or state road upon the line, or approximately upon the line, established in 1833 as the Brooklyn-Carlisle road for a distance of approximately 2,500 feet from the southwestern bank of the Cuyahoga river.

In 1832 the Cleveland-Akron road, was surveyed, the northwestern terminus of which was at a post at the now south end of the northeast'line of Ontario street, at an intersection with Huron road, a distance of approximately 500 feet from the northeastern bank of the Cuyahoga river. The river is *473about 239 feet wide, making the gap between the two state or. county roads about 3,239 feet, over which no state or county road, or road of any kind, ever existed, and at which point no crossing of the river by bridge, ferry, ford, or other means ever existed. The proposal is to build a bridge spanning this space of 3,239 feet, including the Cuyahoga river, and to thereby connect the Brooklyn-Carlisle road, which runs substantially northeast and southwest, with the Cleveland-Akron road, which runs substantially northwest and southeast.

That the Legislature has the power to authorize the board of county commissioners to so connect two distinct state or county roads, and to do so without the formality of first creating a state or county road, making such connection with proper provision for compensation and damages for property taken or depreciated, must be conceded; but the Legislature does not appear to have done so, for it has provided that the commissioners shall construct and keep in repair necessary bridges over streams and public canals *on state and county roads*and that “the county commissioners shall cause to be constructed and kept in repair ** * **bridges in villages and cities * * *I* on all state and cou/nty roads.”*Beyond that it has not gone.

This contemplated bridge cannot, by any stretch of the imagination, be held to be *on*either a county road or *on*two county roads; but the most that can be said for it is that it is to be between two county roads, where no connecting road theretofore existed. It does not follow, however, that the board of county commissioners may not, by proper proceedings, acquire the power to build a bridge upon *474the site indicated by their resolution of 1914, for. the Legislature has provided by Section 6949, General Code, that:

“The board of county commissioners may construct a proposed road improvement into, within or through a municipality, when the consent of the council of said municipality has been first obtained. ”

The conceded facts being that no state or county road exists between the termini of the proposed bridge, it therefore follows that until such time as the board of county commissioners has laid out and acquired a road according to law between such termini it is without power to construct the bridge upon such site.

The judgment of the Court of Appeals will be reversed. The defendant in error will be enjoined from expending the sum authorized by the election of November 3, 1914, or any portion thereof, until such time as a state or county road is laid out and acquired according to law between the termini of the proposed bridge; and the court, accepting as a disclaimer the answer of the defendant filed herein, that it has no intention to expend any portion of the sum authorized by the election of November 3, 1914, in the acquiring of a site or the erection of a bridge which cannot be completed for the aggregate sum authorized in such election, makes no order in that respect.

*Judgment reversed.*

Marshall, C. J., Wanamaker, Jones, Matthias, Day and Allen, JJ., concur.