Arizona republican., 1909-05-05

aDlN correct, ana WOulu De correct un- der our system of law, for our statute provides that the county road funds cannot be expended for the purpose of Improving highways within. an incor porated city.
 "On the other hand, the states of Iowa, Florida, New Jersey and Min nesota all hold. that, under laws simi- lar to ours. that the county has right to construct a bridge within the cor porate limits of city especially where that bridge crosses a water course and benefits the entire county. and more especially when the bridge is to be constructed from a tax levied upon the entire people of the county, including the taxpayers of the city within whose corporate limits the bridge is to be constructed.
 "The decision which has the greatest weight in my mind is the one reported in 21 Iowa, on page 119, case almost on all fours with the one in question. This case was decided by Judge Dillon, who was then upon the bench of Iowa, and who is acknowledged by the au thorities and all courts to be the great est authority on municipal law in the United States. At the time this case was decided, Iowa had a general bridge law which provided that the super visors could build bridges without linn itation within the county, and provided that the cost of the building of such bridge should be met by taxation on all of the taxpayers of the county.
 Iowa also at that time had a gen. eral incorporation act for towns and cities, the same as ours, which provided that city councils shall have the care, supervision and control of all public highways, bridges, streets and alleys and commons within the city. It will be noted that this provision is prac- tically the same as that contained in paragraph 545 of our code. Therefore, as far as the law is concerned, in the Iowa case, the statutes were practi cally the same. The bridge sought to be built was over a large stream rum ming through the city of Des Moines. Iowa, and the street on both sides of the bridge was Walnut street of said city, street of the city of Des Moines, but which Walnut street connected with county highways.
 Nt lAAt SGNlAOll Ol NiAC lelN which provided that city councils shall have control of all public highways. bridges, streets, alleys, etc. within the corporate limits, Judge Dillon said:
 i've do not think a fair constrHc ton of this general language requires us to hold that it ousts the county of the right. which we have shown it would otherwise possess. to bridge the Des Moines at. the place in question. We briefly state the reasons for this opinion:
 ''L Many bridges in city are pure ly local, across gutters or small streams. such. for example. as Birds run. in Des Moines, and not connected with the public highways of the coun- ty. and to these this language may properly apply
 Again, further on in the opinion, he says:
 But the chief. and 1t seems to our mind a most satisfactory. reason for the above opinion. to-wit, that the county can build the bridge within the corporate limits of the city, consists in the fact that the county bridge tax, provided for, is levied upon all of the taxable property of the county. upon that within the city the same as upon that without the city.
 "'The burden is equal upon the city and county. Shall we ignore all equi- table considerations. and hold that there shall be equality of burden but not of benefit? Shall we adjudge that the city has the capacity, nay. the duty, to pay but not the power to enjoy? The law is plain, that the county may levy a bridge tax upon the taxable property within the city: indeed, if 1t levies such a tax at all. it must levy it upon the property of the whole coun- ty, including the city.
 "'The law thus obliging the citi- Zens of Des Moines to pay a bridge tax, shall we hold them utterly dis abled from participating in the advan- tages which are presumed to be the consideration of the tax? Such con- struction would be wholly unwarrant- ed, the language not imperatiyely re- quiring it
 Further on, the court, in reviewing his opinion, says:
 If we should be mistaken in the view above taken, as to the power and right Of the county to erect public bridges on public highways inside of the city, still We cannot be mistaken in saying that it is a matter of county duty to see that bridges across the water courses of the county are pro- vided for
 Tt will be seen how pat this deci sion is with the situation of affairs in this election. The general bridge law provides that where the bridge is vot ed, that the tax shall be borne by all of the people of the county. The law is similar, or practically similar, to that, in this territory. The stream to be crossed is, as was in the Iowa case. running to and from the bridge, con meet, as in the Iowa case with county roads. Therefore, all the reasons given bH that eminent jurist, Judge Dillon. in the Iowa case, are equally applica- ble to the case upon which I am asked to render an opinion.
 Later than that, the supreme court of Iowa, in the 72 Iowa, page 134. re- ported in the 8 Northwestern, eos, at a much later date, reiterated the Opin- ion rendered by Judge Dillon, and it is . H..