Opinion
No. 34641
Decided May 22, 1957.
Bridges — Construction of approaches — Duty of county commissioners — Section 5591.24, Revised Code — Construed with cognate sections providing for construction of "necessary" bridges — Sections 5591.02 and 5591.21, Revised Code — Determining necessity for construction within discretion of commissioners.
1. Under the provisions of Section 5591.24, Revised Code, "the Board of County Commissioners shall construct, without unnecessary delay, good and sufficient approaches or ways to bridges erected by it," but such provisions must be construed in connection with the provisions of cognate Sections 5591.02 and 5591.21, Revised Code, providing for the construction of "necessary" bridges.
2. County commissioners are authorized to exercise sound discretion in determining the necessity for constructing bridges and approaches thereto.
IN MANDAMUS.
The relator, the Mentor Lagoons, Inc., an Ohio corporation, has invoked the original jurisdiction of this court for the purpose of obtaining a peremptory writ of mandamus to compel the respondents, the three members of the Board of County Commissioners of Lake County, to construct approaches to a bridge erected by the respondents to provide access to an island allotment now owned by the relator on the edge of Lake Erie in that county.
The issues are submitted on the relator's petition, the respondents' answer, the relator's amended reply, and depositions.
Mr. Albert C. Nozik, for relator.
Mr. Oliver R. Marshall, prosecuting attorney, and Mr. Thomas H. Blakely, for respondents.
The sole question of law in this case is the meaning of the first sentence of the provisions of Section 5591.24, Revised Code, which reads as follows:
"The Board of County Commissioners shall construct, without unnecessary delay, good and sufficient approaches or ways to bridges erected by it. The board shall contract for such construction in the same manner as for contracting for the construction of such bridges."
It is the view of the relator that the language, "shall construct * * * approaches or ways," is mandatory, nondiscretionary and not to be construed in connection with the context in the cognate statutes.
To the contrary, the respondents contend that the language is not mandatory, does permit the exercise of sound discretion, and must be read in the light of the context.
The respondents emphasize the provisions of preceding Sections 5591.02 and 5591.21, Revised Code. The first reads in part that "the Board of County Commissioners shall construct and keep in repair all necessary bridges * * *." (Italics supplied.) The second section reads in part that "the Board of County Commissioners shall construct and keep in repair necessary bridges over streams and public canals on or connecting state, county, and improved roads * * *." (Italics supplied.)
It is the contention of the respondents that the provisions relating to bridges and those applicable to approaches must be considered together since logically either a bridge or approaches alone would be useless without the other.
The soundness of thus construing the legislative intent is disclosed by the controlling facts in this case — many of them undisputed.
The bridge here involved was constructed by the commissioners of that county approximately 27 years ago. At that time the then owner, a corporation known as the Mentor Harbor Company, was engaged in a real estate development in that locality. Incident to that plan, the company, by a dredging process, constructed an artificial island. Across the island the company was to provide a road, and the county commissioners were to construct a bridge and approaches at each end of the road thereby connecting the island road with roads on the mainland. Due in part to the then prevailing depression, the project failed and was abandoned by the company. The county commissioners then discontinued their part of the operation, and neither the second bridge nor any approaches ever were constructed. The relator, the present owner, is not asking that the second bridge or the approaches thereto be constructed at the east side of the island. The sole relief sought is that the respondent commissioners be ordered by this court to complete the west bridge by supplying approaches to it.
As already indicated, this court is of the view that logically the so-called bridge provisions and approaches provisions of the cognate statutes must be read together, and that discretion is vested in the county commissioners.
Under the circumstances has this discretion been abused? In the language of the statutory definition of mandamus, can it be held that "the law specially enjoins" upon the respondent county commissioners a duty to complete the west bridge by supplying approaches to it?
When it is remembered that the project of the Mentor Harbor Company failed and was abandoned approximately 25 years ago; that no road has been constructed across the artificial island; that no bridge is now planned for the east side of the island to connect with roads on the mainland; that the retaining walls have deteriorated; that some of the dredged soil of the island has eroded back into the water of Lake Erie; and that under the provisions of Section 5553.10, Revised Code, "a road, or part thereof, which remains unopened for seven years after the order establishing it was made or authority granted for opening it shall be vacated, and the right to build it pursuant to the establishment in the original proceedings therefor shall be barred," it is readily apparent that the respondent county commissioners have not abused their discretion in refusing to expand additional public funds for a project of this sort.
The requested writ of mandamus must be denied.
Writ denied.
ZIMMERMAN, STEWART, BELL, TAFT, MATTHIAS and HERBERT, JJ., concur.