Winslow, J.
It is objected by respondent that this court cannot consider the correctness of the rulings of the circuit court upon the demurrer, because no appeal was taken directly from the order thereon, and that the time for an appeal therefrom has expired. The objection is not tenable, because upon appeal from final judgment the question as to the correctness of the order upon the demurrer may be reviewed. R. S. 1878, sec. 3070; Moritz v. Splitt, 55 Wis. 441.
The questions presented relate to the proper construction of ch. 187, Laws of 1885, which appears as sec. 1319, S. & B. Ann. Stats. That section, so far as material to the questions raised, is as follows: “ Whenever the town board of supervisors of any town shall file its petition with, the county board of supervisors of the county in which such town is situated, setting forth the fact that said town has voted to construct or repair any bridge or bridges, wholly or partly within such town, designating, as near as may be, the location of such bridge or bridges, and further stating that such town has provided for the payment of one half of the cost of such construction or repairs, and that the cost of said bridge or bridges or repairs exceeds one fourth of one per centum of all the taxable property in said town, according to the last equalized valuation, the said county board shall appropriate the other half of such cost, and cause such sum to be levied upon the taxable property of the county as will, with the amount provided by said town, be sufficient to defray the expense of erecting or repairing such bridge or bridges so petitioned for, and such money,, when collected, shall be paid out on the order of the chairman of the county board and county clerk.”
[345] It is unnecessary to set forth the petition which the town supervisors filed with the county board in full. We regard it as entirely sufficient under the statute just quoted. It follows the statute very closely, and sets forth all the facts which the statute requires. The objection that the electors of the town did not authorize the presentation of the petition to the county board, we do not regard as of any force. The law in direct terras authorizes the town board to file the petition, and the town board has done so.
The important question raised by the appeal is as to how far the allegations of the petition are conclusive upon the county board; in other words, what facts may the county board take issue upon and litigate upon mandamus brought to compel their action upon a proper petition. This question is now for the first time fairly presented to this court. It was suggested, but not decided, in State ex rel. Rochester v. Racine Co. 70 Wis. 543.
The broad ground is taken by the respondent that when the proper petition is presented to the county board it becomes their duty to at once appropriate the sum called for, and that they can raise no issue of fact, i. e., that the petition is conclusive. On the other hand, the appellant claims that any and all the facts stated in the petition may be controverted and litigated, and it has endeavored to raise a number of questions of fact, the following being the questions which it relies on: (1) That the town never made any estimate of cost or plans for the work; (2) that the bridges did not in fact need any repairs; (3) that the equalized valuation of the relator was falsely and fraudulently made at forty per cent, of the true valuation; (4) that Apple river is a navigable stream, and consequently the town cannot proceed to rebuild bridges across it under sec. 1319, E. S.
In discussing this subject in State ex rel. Rochester v. Racine Co. 10 Wis. 543, it was said by the court: “ The changes made in the law since 1871 seem to furnish some ground for [346] the contention of the learned counsel for the relator. See original law (sec. 115, ch. 19, R. S. 1858), as amended by ch. 13, Laws óf 1866 (1 Tay. Stats. 511); ch. 126, Laws of 1879; ch. 315, Laws of 1881; and ch. 187, Laws of 1885. The law, previous to 1885, required the county board to act upon information to be obtained by such board before the board was required to act. Rut the law of 1885 changes this radically, and requires the county board to act upon a petition to be presented by the town, alleging the existence of certain facts.” It seems very apparent from the course of legislation above cited, as well as from the positive words of the statute, as finally amended and established by the act of 1885, that it was the intention of the legislature to materially limit that discretionary power on the part of the county board which had always existed under the previous laws. While we are not inclined to hold that the county board will be bound to appropriate the sum asked for upon every petition presented in proper form, whether it be true or false, we entertain no doubt but that as to certain matters of fact the decision of the town must be held to be final and conclusive. We think that the town has the power to decide when public safety demands that a bridge be repaired or rebuilt, and to determine the general character of such repairs or rebuilding, and to fix and determine the amount necessary to be spent for the purpose; also to determine the location, within the limits of highways, where new bridges shall be built, and the character and cost thereof. In these respects we think clearly the action of the town is final and conclusive, and cannot be controverted or questioned by the county board. Nor do we, think that the amount of the equalized valuation of the town can be attacked as fraudulent in this entirely collateral proceeding. On the other hand, it seems equally clear that the county may deny that the town has voted to construct or repair a bridge or bridges, or that it has pro[347] vided for the payment of one half the cost, or that it has determined or estimated the cost, or that such cost so determined exceeds one fourth of one per centum of the last equalized valuation of the town. It. seems probable, also, that the county may allege that the bridge or bridges are not upon public highways, or are bridges which the town has no authority to build or repair. These latter matters, however, are not decided here, as the return does not fairly raise them. There is, indeed, a general denial that the bridges are upon highways, but in other parts of the return they are treated substantially as being upon highways. There is also a statement that Apple river is a navigable river, but it does not necessarily follow from this that the town has not authority to bridge it. If in fact-it has no such authority, the fact should be affirmatively alleged.
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Winslow, J.
It is objected by respondent that this court cannot consider the correctness of the rulings of the circuit court upon the demurrer, because no appeal was taken directly from the order thereon, and that the time for an appeal therefrom has expired. The objection is not tenable, because upon appeal from final judgment the question as to the correctness of the order upon the demurrer may be reviewed. R. S. 1878, sec. 3070; Moritz v. Splitt, 55 Wis. 441.
The questions presented relate to the proper construction of ch. 187, Laws of 1885, which appears as sec. 1319, S. & B. Ann. Stats. That section, so far as material to the questions raised, is as follows: “ Whenever the town board of supervisors of any town shall file its petition with, the county board of supervisors of the county in which such town is situated, setting forth the fact that said town has voted to construct or repair any bridge or bridges, wholly or partly within such town, designating, as near as may be, the location of such bridge or bridges, and further stating that such town has provided for the payment of one half of the cost of such construction or repairs, and that the cost of said bridge or bridges or repairs exceeds one fourth of one per centum of all the taxable property in said town, according to the last equalized valuation, the said county board shall appropriate the other half of such cost, and cause such sum to be levied upon the taxable property of the county as will, with the amount provided by said town, be sufficient to defray the expense of erecting or repairing such bridge or bridges so petitioned for, and such money,, when collected, shall be paid out on the order of the chairman of the county board and county clerk.”
[345] It is unnecessary to set forth the petition which the town supervisors filed with the county board in full. We regard it as entirely sufficient under the statute just quoted. It follows the statute very closely, and sets forth all the facts which the statute requires. The objection that the electors of the town did not authorize the presentation of the petition to the county board, we do not regard as of any force. The law in direct terras authorizes the town board to file the petition, and the town board has done so.
The important question raised by the appeal is as to how far the allegations of the petition are conclusive upon the county board; in other words, what facts may the county board take issue upon and litigate upon mandamus brought to compel their action upon a proper petition. This question is now for the first time fairly presented to this court. It was suggested, but not decided, in State ex rel. Rochester v. Racine Co. 70 Wis. 543.
The broad ground is taken by the respondent that when the proper petition is presented to the county board it becomes their duty to at once appropriate the sum called for, and that they can raise no issue of fact, i. e., that the petition is conclusive. On the other hand, the appellant claims that any and all the facts stated in the petition may be controverted and litigated, and it has endeavored to raise a number of questions of fact, the following being the questions which it relies on: (1) That the town never made any estimate of cost or plans for the work; (2) that the bridges did not in fact need any repairs; (3) that the equalized valuation of the relator was falsely and fraudulently made at forty per cent, of the true valuation; (4) that Apple river is a navigable stream, and consequently the town cannot proceed to rebuild bridges across it under sec. 1319, E. S.
In discussing this subject in State ex rel. Rochester v. Racine Co. 10 Wis. 543, it was said by the court: “ The changes made in the law since 1871 seem to furnish some ground for [346] the contention of the learned counsel for the relator. See original law (sec. 115, ch. 19, R. S. 1858), as amended by ch. 13, Laws óf 1866 (1 Tay. Stats. 511); ch. 126, Laws of 1879; ch. 315, Laws of 1881; and ch. 187, Laws of 1885. The law, previous to 1885, required the county board to act upon information to be obtained by such board before the board was required to act. Rut the law of 1885 changes this radically, and requires the county board to act upon a petition to be presented by the town, alleging the existence of certain facts.” It seems very apparent from the course of legislation above cited, as well as from the positive words of the statute, as finally amended and established by the act of 1885, that it was the intention of the legislature to materially limit that discretionary power on the part of the county board which had always existed under the previous laws. While we are not inclined to hold that the county board will be bound to appropriate the sum asked for upon every petition presented in proper form, whether it be true or false, we entertain no doubt but that as to certain matters of fact the decision of the town must be held to be final and conclusive. We think that the town has the power to decide when public safety demands that a bridge be repaired or rebuilt, and to determine the general character of such repairs or rebuilding, and to fix and determine the amount necessary to be spent for the purpose; also to determine the location, within the limits of highways, where new bridges shall be built, and the character and cost thereof. In these respects we think clearly the action of the town is final and conclusive, and cannot be controverted or questioned by the county board. Nor do we, think that the amount of the equalized valuation of the town can be attacked as fraudulent in this entirely collateral proceeding. On the other hand, it seems equally clear that the county may deny that the town has voted to construct or repair a bridge or bridges, or that it has pro[347] vided for the payment of one half the cost, or that it has determined or estimated the cost, or that such cost so determined exceeds one fourth of one per centum of the last equalized valuation of the town. It. seems probable, also, that the county may allege that the bridge or bridges are not upon public highways, or are bridges which the town has no authority to build or repair. These latter matters, however, are not decided here, as the return does not fairly raise them. There is, indeed, a general denial that the bridges are upon highways, but in other parts of the return they are treated substantially as being upon highways. There is also a statement that Apple river is a navigable river, but it does not necessarily follow from this that the town has not authority to bridge it. If in fact-it has no such authority, the fact should be affirmatively alleged.
With these general principles in mind, it is apparent that the circuit court was right in its ruling upon the demurrer to the return, except in one particular. The return alleged substantially that the town never made any estimate or-determination of the cost of the repairs. This we regard as an essential. It is manifest that the cost must be determined by some authority before the petition is presented to the county board, as it must be a known sum in order that it may be possible to determine how much one half of the cost is, and whether the town has raised its half.Though the statute does not provide in express terms that the town is to determine the cost, we think that is the unmistakable meaning of the section. Here it appears by-the return that the town did nothing save to vote to raise $400 to repair certain bridges on Apple river. They did not determine the extent of the repairs nor make any estimate or determination as to the cost thereof. So far as this alleged action goes, the town may never have intended to spend more than $400, and the application to the county board may have been simply an afterthought on the part [348] of the supervisors. We cannot think that such was the intention of the legislature. We think it certain that it was intended that the town should determine the repairs to be made, ascertain and fix the' expense as near as possible, raise its one half thereof, and then make its application for aid. Such seems to have been the practice in the previous cases which have come to this court, and such seems the only reasonable and proper interpretation of the statute. We do not consider it necessary that the town should have adopted plans and specifications, but simply that it should have fixed the cost. It follows from these views that the dem urrer should have been overruled as to that part of the return which alleges that no estimate of cost was ever made by the town, and the issue arising thereon should have been tried.
By the Court.— Judgment reversed, and action remanded for further proceedings in accordance with law.