#### Thirteenth Street Bridge.

A petition for viewers, to inquire whether a new bridge was needed, alleged that the old one was decayed, and, if not renewed, would soon fall. Viewers were appointed, who reported that the bridge was a nuisance. The county commissioners then built a new bridge. In their petition for viewers to inspect the new bridge, the commissioners did not set out that any estimate of the cost had been procured prior to the erection of the bridge, as provided by $ 36 of the Act of June 13, 1836. Viewers were appointed who filed a report approving the- bridge and finding that the commissioners had been guilty of no official misconduct or neglect in building it. A new board of county commissioners filed three exceptions to the report of the viewers, 1, that no_ estimate of the cost of the bridge was made prior to its erection, as required by the Act of Assembly; 2, that the cost of the bridge was excessive ; and, 3, that the report contained no valuation of the bridge. They also entered a rule on the old commissioners to take depositions in support of the exceptions. The court subsequently stayed this rule and dismissed the exceptions. On certiorari, the proceedings were affirmed.

March 15, 1889.

Certiorari, No. 367, Jan. T. 1889, by the County Commissioners to review an order of the Q. S. Northampton Co., dismissing their exceptions to the report of viewers, in the matter of the Thirteenth- Street Bridge, at Oct. Ses. 1855, No. 1. Sxerrett and Green, JJ., absent.

The following facts appeared from the record:

On Oct. 12, 1885, sundry inhabitants of Easton presented a petition in which they averred:

“That the bridge on Thirteenth street, crossing the Bushkill creek at the silk-mill, is in such condition as to render it unsafe for travel; that, by reason of the accumulations of dust and filth thereon it is a nuisance; that the board flooring is continually in need of repairs and breaks into dangerous holes by reason of the shaky and rotten condition of the timbers and supports; that the bridge has been erected many years; that there is large and continually increasing travel over it and that it is so worn out and strained that if it is not speedily removed it will fall into the creek. Your petitioners therefore pray the court to appoint six persons qualified according to law to view the said bridge and inquire whether a new bridge is necessary, and whether the cost of the same would be *59more than it is reasonable the said borough of Easton should bear, and make' report of their proceedings at the next term of this court.”

Viewers were appointed who reported “ that the present bridge is not only a nuisance, but is dangerous because of its rotten and dilapidated condition, and that a new bridge over the Bushkill creek, at the place where Thirteenth street, in the borough of Easton, crosses the said Bushkill creek, is necessary, and that the erection of such a bridge would be attended with more expense than it is reasonable the said borough should bear.”

The county commissioners, Edward Lerch, Tilghman H. Wolf and Reuben P. Fehnel, then built a new bridge. On Nov. 25,1887, they presented the fallowing petition to the court:

“ That, it having appeared to the court, to the- viewers, to the grand jury and the commissioners of the county, that the county bridge on Thirteenth street, in the city of Easton, crossing the Bushkill creek, was unsafe for travel, your petitioners proceeded to rebuild such bridge as required by the Act of Assembly. That the said bridge is now completed. Your petitioners, therefore, pray the court to appoint six fit persons to inspect said bridge and the workmanship thereof, agreeably to the Act of Assembly, and to make report to the next court of quarter sessions to be held for the said county.”

Viewers were appointed, who, on Dec. 12, 1887, filed the following report:

“ That, having been present at the view of said bridge, and having all been duly sworn or affirmed, we have viewed and carefully examined the same, and are of the opinion that it is completed in a substantial and workmanlike manner, just such a-bridge as was wanted at that place, and we, therefore, heartily approve of the same. The said bridge was erected under the supervision of the commissioners by the day, and we find no default, neglect or official misconduct on the part of the commissioners in the erection thereof.”

The following exceptions to the report of the viewers were filed by the plaintiffs in error, county commissioners who succeeded in office those who had built the bridge:

1. No estimate of the cost of said bridge was made prior to its erection, as is required by the Act of Assembly in such case made and provided.

2. It appears of record that said bridge has cost $15,600, and this sum is far in excess of what said bridge could have been erected for.

3. The report of viewers does not contain any valuation of said bridge.

On Nov. 8, 1888, the following rule was entered by the exceptants :

“ Enter rule on Edward Lerch, Reuben P. Fehnel, and Tilgh*60man H. Wolf, late board of county commissioners, to take depositions on five days’ notice.”

On Nov. 12, 1888, the following motion was made:

“And now, Nov. 12, 1888, the counsel for Edward Lerch, Reuben P. Fehnel, and T. H.-Wolf, late commissioners, move the court to dismiss the exceptions, and that all proceedings to take testimony shall be stayed until this motion is disposed of.”

On the same day, the court made the following order:

“ Nov. 12, 1888. Rule to show cause granted why the exceptions shall not be dismissed. Same day ordered that proceedings stay until this rule is disposed of. Rule returnable first Monday in December next, at 10 A. M.”

On Feb. 15, 1889, the exceptions were dismissed and the report of viewers confirmed.

*The assigtiments of error*specified, x, 2,4, the action of the court in dismissing the exceptions, quoting them; and, 3, in granting the motion of Nov. 12, 1888, and making an order, staying all proceedings and thereby staying the rule of Nov. 8, 1888, to take depositions in support of the exceptions, quoting the rule, motion and order.

*H.*S'. *Cavanaugh*and *W. E. Dosier,*for plaintiffs in error.—

The supreme court will examine and review the proceedings of the quarter sessions, so far as to determine the extent and limits of its power and the regularity of its exercise, on a certiorari, at the instance of the county commissioners. Northampton Co. Commissioners’ Ap., 57 Pa. 452; Broomall’s Ap., 75 Pa. 173.

The Act of June 13, 1836, Purd. 1505, requires that an estimate of the cost of a bridge shall be procured before its erection. Lehigh Co. *v.*Kleckner, 5 W. &S. 181; Hague *v.*Phila., 48 Pa. 530.

Why have an estimate, or provide for payment, if the commissioners may disregard it ? Our view of the Act is strengthened by subsequent sections providing for inspection and deductions from the sum stipulated. Otherwise § 36 would be of no avail.

The Act of April 11, 1848, does not repeal the Act of 1836. The case where commissioners build by the day, as in the 'present instance, is not covered by the Act of 1848.

The bridge erected was not a reconstruction but a new bridge, and the Act of May 5, 1876, does not apply. Riddle *v.*Delaware Co. Com’rs, 3 Co. C. 602. Com. *v.*Northampton Co. Com’rs, 1 Maxw. 198, is incorrect on this point, although the question was not before the court.

Besides, the Act of 1876 is a supplement to the Act of 1836 and the machinery of the latter Act, as to payment of expenses, view and inspection, is expressly preserved.

The court has power to set aside the inspectors’ report at this stage, where exceptions are filed, or even after confirmation, in case *61of fraud. Naylor’s Run Bridge, 34 Leg. Int. 169; Luzerne Co. *v.*Plymouth Twp., 11 Luz. L. Reg. 258.

The action of the court below, in refusing to hear our witnesses, was irregular and ground for reversal.

*EdwardJ. Fox, Edward J. Fox, Jr.,*and *H. J. Steele,*not heard, for defendants in error.

The object of “procuring an estimate,” as provided by the Act of 1836, was, plainly, to enable the commissioners to provide, in the county levies, the monies necessary to defray the cost. There is no provision in this section, or in any other section, that the cost shall not exceed the estimate, or that, if it does, the bridge shall not be paid for out of the county funds, or that the county commissioners shall be liable for the excess of the cost of the bridge above the estimate.

If the inspectors approve of the bridge and it is approved by the court, there is no appeal or right of exception by the statute, and the court cannot examine the question without statutory authority.

By § 43, if the bridge is not approved by the inspectors, they shall report in what respect it is deficient, what is its *value,*etc. By §§ 44 and 45, an issue is provided for, to try whether the bridge was erected at an expense greater than its *value,*etc.

If the bridge is reported to be deficient by the inspectors, it must also appear that the deficiency occurred through the default, neglect or official misconduct of the commissioners, and, after the report, the commissioners are only liable to pay in damages the difference between the value of the bridge and its cost, when these facts are proven on a trial or before the court. The inspectors here found there was no neglect on the part of the commissioners.

It is a sufficient reason for dismissing the third exception, that the Act only requires the inspectors to report what, in their judgment, is the value of the bridge when they find it is deficient. They are not required to report its value, when they approve of the bridge.

As to the second exception, it ought to have been dismissed, because the court were not authorized to inquire as to the value of the bridge, where the report of the inspectors approved of the bridge.

As to the first exception, we think we have shown from the Act that the failure to procure a previous estimate of the cost did not subject the commissioners to any penalty, or require them to pay damages if the court should find that the cost exceeded the estimate. The court is not authorized to make such inquiry in a summary manner, or to direct an issue to ascertain whether the cost exceeded the estimate; nor would they have any authority to enter a judgment or decree against the commissioners for any such difference. The attempt to do so would have been simply an *62usurpation of authority, and therefore the first exception was properly dismissed.

March 15, 1889.

In Lehigh Co. v. Kleckner, the question did notarise. It does not appear in the report of the case whether an estimate had been made or not. Judge Rogers’ remarks are obiter dicta. So is the language of Judge Agnew in Hague ». Phila.

The Legislature, in the Act of 1848, provided that, in similar cases, a contractor should be entitled to recover.

The provision of the Act of 1836, that an estimate shall be made, does not apply to the rebuilding of bridges. It applies only to the case of a new bridge.

The object of submitting the question to a jury of view in relation to the original construction of a bridge, and, after their report was made, to the court and grand jury, was simply to determine, in the language of § 35 of the Act of 1836, whether a bridge was necessary and whether the building of the bridge would be more expensive than one or two townships ought to bear. That being ascertained, the county was required to maintain a bridge at that place; and, in order to confer express power on the commissioners to repair or rebuild without a new view and the action of the court upon it, the Acts of 1843 and 1876 were passed.

A repair of a bridge, under the Act of 1843, is a renewal of the superstructure. Howe ». Com’rs, 47 Pa. 361.

A bridge so dilapidated and rotten that it is in constant danger of falling is certainly “ partially destroyed,” in the language of the Act of 1876, and that Act, which is a supplement to the Act of 1836, dispenses with the procuring of previous estimates, its only proviso being that “after the completion of any such bridge, it shall be subject to view and inspection, as is provided in the Act to which this is a supplement.”

The Act of 1876 covers all cases of rebuilding. Myers ». Com., 110 Pa. 225.

The merits of the controversy cannot be reviewed on certiorari which only brings up the record and questions relating to regularity of proceedings on jurisdiction of the court. Com. ». Nathans, 5 Pa. 124; Mifflin Twp. ». Elizabeth, 18 Pa. 17; Kimber ». Schuylkill Co., 20 Pa. 366; Silver ». Same, 20 Pa. 369; Hughes ». Kline, 30 Pa. 227; Chase"». Miller, 41 Pa. 403 ; Germantown Ave., 99 Pa. 481.

Per Curiam,

Judgment affirmed.