Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1895-08-20

A very important decision was hand
ed down by Judge PAUL, in the Circuit
Court yesterday, in the case Of NJ. H.
McCulloch and others V. the Board Of
County Commissioners.
The action was an application for a
writ OF injunction, restraining the
county from collecting tolls upon the
river road, extending from the Top
mill about three miles north. The
matter involved the right of the county
to levy and collect tolls upon any coun-
~ road, outside of the old turn-pikes,
and the interests involved were thus
very important. Judge PAUL decided
that The county had the right to impose
and collect tolls on the road in Ques-
ton, and by implication on any other
road within the county. Prosecuting
Attorney Howard appeared for the
county and Mr.. Coniff for petitioners.
In his opinion, Judge PAUL says:
1T is conceded on its behalf that the
defendant has no authority to charge
and collect the tolls in question, unless
such authority is given to it by sections
% and %, of Chap. 43 of the Code,
which reads:
"'25. When a bridge is necessary in
q county and it is not practic-
able for the surveyor of the road pre-
cinct to have il built or repaired with
the means at his disposal, the County
Court of the county may contract for
the same or any part thereof, on such
terms as may be agreed upon
and pay for the work in whole or in
part out of the county treasury, or by
issuing bonds or other evidence OF
debt, Tor the same, as may be agreed
upon. Upon the completion OF
any such bridge, the Court may charge
and receive such reasonable tolls there
on as they may from time to time or,
dain and establish, subject to the right
of the Legislature or Board of Public
Works to change the same.
%. In like manner they may con-
tract and pay for working. improving
or keeping in order the whole or any
part of any county road within the
county
Chap 50 of the Code of 1860 pro-
vides two methods of keeping county
roads in order, either of which might
be adopted by the County Court, as it
thought best. the one by compelling the
citizens of the counties to work On
such roads under the supervision of the
road surveyor. a certain number of
days in each year; the other by con-
tract, the money 10 pay the contractor
being raised by special levy.
The same chapter also contained
the following provision with respect TO
bridges:
when any bridge is nee
essary, and il is not practicable for the
surveyor TO have 1t built or repaired,
the County Court may contract there
for; and TO this end may direct one or
more of the Commissioners of roads. if
such there be, or appoint some other
commissioner. to receive proposals.
But the Legislature of West Vir-
ginia. in 1868, repealed all the pro-
visions Of Chap. 81 aforesaid. which au-
thorized the keeping of roads in order
by contract 1t made no change, how
ever in the method of building bridges.
See Acts of 1863. Chap. 100, page 1S5.
THE law, both with respect to roads
and bridges. remained in this condition
until the adoption of the Code OF West
Virginia of 1868, when the provisions
which now constitute Secs. % and %
aforesaid were inserted.
sec %. il will be observed, changed
the former law in respect to bridges IN
two important particulars. Cd Ii all
thorIaed the County Court of any coun-
~ to raise the money with which loS
pay the contractors for building or re-
pairing any such bridge as is men,
toned therein, by issuing bonds or
other evidence of debt therefor. and ~
to pay OFF these bonds or other evil
dences of debt. after the completion Of
the bridge. it authorized the Court 10
charge and receive reasonable tolls
thereon.
Now. il is important to remember,
in this connection, that the Legislature,
at the same tine that it made these
radical changes in the method of build
ing and repairing bridges, found in Sec.
%. also provided, in Sec. 26, that the
County Court might, in like manner
contract and pay for making, improy-
ing or keeping in order the whole or
any part Of any county road within the
county.
This shows clearly, it seems to me,
that il was the intention Of the Legisla-
ture to confer upon County Courts
whenever a road was necessary within
a county, and it was not practicable for
the surveyor of the road precinct TO
have it built or repaired with the
means at his disposal, the $ . @ powers
with respect to such road, mat it had
in Sec. %, conferred upon them with
respect to bridges which necessarily
includes the authority to charge and
receive reasonable tolls thereon.
Besides, no valid reason can be as
signed why any distinction should be
made between roads and bridges. Both
are matters of public necessity, and
public interest demands that when the
ordinary means OF building or keeping
them in repair is insufficient for that
purpose. some other method should be
provided And what other method
could the Legislature have devised
more equitable and just than by au-
thorizing the County Court to charge
reasonable tolls?
1T is admitted by the plaintiffs in
- not ctioo bla for.