Bridge Over Smithfield Creek

' The opinion of the court was delivered by

Sergeant, J.—

1. The first of these exceptions seems inapplicable to the facts of the case. The bridge in question is a new one, to be built at neither of the- former sites, but about equidistant from each. The county commissioners might, perhaps, be bound to repair the former county bridge, (though as to that we give no opinion,) and yet they might also, under the provisions of the act of assembly, with the approbation of the court and grand jury, build as many new bridges over the creek as should be found expedient. There is nothing in the act of assembly that restrains the building of new bridges, either as to place or number, provided they are approved of in the manner pointed out in the 35th section of the act of 13th June, 1836. As to vacating the former county bridge, I see nothing in the petition or proceedings that has an eye to that. The old county bridge, or what is left of it, ¡remains in statu quo unaffected by these proceedings.

2. The second objection has been satisfactorily answered by the counsel for' the petitioners. The order and proceedings of the viewers seem to be merely on the first petition, (which is placed last in the paper book,) the one headed by George Walter. The presence of another petition in theyecord, not acted on, must be considered as irrelevant and not affecting the validity of the proceedings, if otherwise right.

3. The third objection is however fatal. The act of 13th June, 1836, section 35, directs that the court shall “ order a view in the manner provided for in the case of roads.” And the 3d section enacts in the case of roads, that the viewers “ shall make report at the next term of the said court.” It is impossible we think, to give any other interpretation to the 35th section than that the viewers of bridges also shall make their report at the next term of the court. It cannot be, as has been contended, that the manner here referred to, embraces merely the mode of appointing the viewers, and has no reference to their duties. Under such a construction there would be no rule at all in the case of bridges, as to the duties of the viewers, the time of making their report, and other matters of great importance, and concerning which it would be inconvenient to leave them ad libitum without any direction or control. The legislature seem to have deemed it expedient that there should be a delay in the report till the succeeding term, as well that the viewers might have time to weigh and deliberate without hurry or precipitation, as that parties interested should have opportunity to learn the doings of the jury, and act with preparation in regard to them. These reasons apply as strongly to bridges to be erected, as to roads to be laid out; indeed frequently they are connected together. See sec. 37. It is true, it may happen that on extraordinary occasions a freshet may sweep away bridges, and make immediate action desirable. This is a case however for which the act does not provide.

The 4th, 5th, and 6th, have been passed over, and are indeed included in the former.

7. This we think forms no objection. The legislature had competent power to authorise the erection of bridges- over streams declared public highways, either by a special act or a general one ; and the act of 13th June, 1836, gives authority as to all rivers, creeks and rivulets, without exception.

But on the 3d objection, these proceedings must be reversed.

Proceedings reversed.