Opinion of the Court-Walters, District Judge.

The jury was not advised that the plaintiff's right of recovery was predicated also upon this last requirement, and they were thus permitted to find a verdict against defendant upon an insufficient and an incorrect statement of required proof.

(3) It will be noted that prior to the amendment of 1910, in an action of this character, the intent of the bankrupt to effect a preference must be shown, but that by said amendment such proof is not now required. This statement finds expression in 1 Loveland on Bankruptcy, 978, in the following language:

"Prior to the amendment of 1910 the intent of the bankrupt to prefer was essential to a preference.

"The act as originally passed, and as amended in 1903, included as an element of voidable preference that the creditor 'had reasonable cause to believe that it was intended thereby to give a preference.' This language was held to imply that the debtor must intend the transfer to be a preference at the time it was made. The intent of the bankrupt might be presumed from the necessary result of the transaction.

"This language of section 60 of the act was changed by the amendment of 1910 to 'had reasonable cause to believe the enforcement of such judgment or transfer would effect a preference.' This makes the intent of the debtor immaterial. The test is clearly the effect of the transaction without regard to the intent of the debtor."

(4) In reference to the burden of proof as to the reasonable cause of belief that the enforcement of a contested transfer would effect a preference, it is stated in 3 Remington on Bankruptcy, 419, that "the burden of proof of the existence of the reasonable cause of belief is on the trustee"; citing Getts v. Janesville Grocery Co., 163 Fed. 417; Calhoun County Bank v. Cain, 152 Fed. 983, 82 C. C. A. 114.

(5) It is urged by counsel for plaintiff, respondent here, that the error complained of in instructions 3 and 6 is cured by instruction 16 given by the court to the jury, which is as follows:

Opinion of the Court-Walters, District Judge.

"The mere giving of a preference to a creditor of the bankrupt within four months of the filing of a petition in bankruptcy, or after the filing of a petition in bankruptcy, does not make the preference void, and it is not even voidable unless the creditor or his agent acting therein had reason to believe that it was intended thereby to give a preference."

Counsel for respondent urge that this instruction is drawn in conformity with the amendment of 1903, supra, and read with instructions 3 and 6 makes a sufficient statement of the law.

A sufficient answer to such contention is that instruction No. 16 did not contain a correct statement of the law for the control of this case, by reason of the amendment of said subdivision "b" made in 1910 and hereinbefore discussed.

(6) The plaintiff alleges the value of the notes, by the collection of which, by defendant, it is charged a voidable preference was created, is the sum of $1,800. For the failure on the part of the defendant to deny the value of said notes as laid in the complaint, the court charged that the value of the same was by defendant admitted.

Appellant assigns the giving of this instruction as error, maintaining that the answer sufficiently denied the value of said notes.

We have examined the pleadings and the instruction in question and find no error in the giving of the same.

Inasmuch as counsel for the parties hereto were each in error as to the law applicable to a case of this nature at the time of trial, it quite naturally followed that the trial court erred in the instructions given, and it appearing that such error is prejudicial to the rights of the appellant, this judgment must be reversed and the cause remanded for a new trial. Costs will be awarded to appellant.

Ailshie, C. J., and Sullivan, J., concur.

Argument for Respondents.

(May 9, 1914.)

CITY OF KELLOGG, Appellant, v. A. P. MCRAE et al., as County Commissioners of Shoshone County, Respondents.

[141 Pac. 86.]

COMPLAINT GENERAL DEMURRER-COUNTY COMMISSIONERS-ROAD DISJURISDICTION OVER WITHIN CITY LIMITSBRIDGES-CONSTRUCTION OF-STATUTORY CONSTRUCTION.

TRICTS

HIGHWAYS

1. Held, under the statutes of this state that the city council or village trustees of incorporated cities and villages have the exclusive control of the streets and highways within such corporate limits, and have full power to construct bridges and repair and maintain the same within such corporate limits.

2. Held, that the board of county commissioners have not the control of the roads and bridges within the corporate limits of a city or village, and that they are not required, under the law, to construct and maintain bridges exceeding sixty feet in length at the expense of the county, over streams crossing highways within such corporate limits.

APPEAL from the District Court of the First Judicial District, in and for Shoshone County. Hon. W. W. Woods, Judge.

Application for a writ of mandate to compel the board of county commissioners to construct a bridge over the south fork of the Coeur d'Alene river where it runs through the corporate limits of the town of Kellogg. Writ denied. Affirmed.

Z. F. Pattison, for Appellant, cites no authorities.

Carlton Fox, for Respondents.

Sec. 2230, subd. 16, Rev. Stat. of 1887, giving towns and villages the right "to keep in repair, and unobstructed from rubbish, filth, or other deleterious substance, all highways, streets and alleys within such town or village," conferred

Opinion of the Court-Sullivan, J.

exclusive jurisdiction upon such town or village over such highways, streets and alleys, and therefore the board of county commissioners could not authorize its road overseer, or any road overseer, to go within the limits of any organized town or village to repair or in any way interfere with its streets and alleys.

The reasoning of this case is peculiarly applicable to the case at bar, for the reason that our present laws defining the jurisdiction of incorporated towns and villages over their highways, streets and alleys are much broader than was the law construed in this decision.

In construing sec. 81, act of 1899 (Sess. Laws 1899, p. 208), which is identical with sec. 2242, Rev. Codes (being the section relied on by appellant), together with sec. 887, Rev. Stat. of 1887, which is substantially the same as sec. 893, Rev. Codes (supra), the supreme court of this state held that thereby all control over roads within incorporated cities or villages was taken away from the board of county commissioners. To the same effect is the Village of Sandpoint v. Doyle, 11 Ida. 642, 83 Pac. 598, 4 L. R. A., N. S., 810.

SULLIVAN, J.-This action was brought in the district court for a writ of mandate commanding the board of county commissioners of Shoshone county to remove a bridge which is situated across the south fork of Coeur d'Alene river within the limits of the city of Kellogg, and to compel them to build or construct a new bridge across said stream. A general demurrer was interposed to the amended complaint and sustained by the court, whereupon the plaintiff refused to plead further and judgment of dismissal was entered. This appeal is from said judgment.

The action of the court in sustaining the demurrer is assigned as error, and the question is directly presented whether the county under the law is required to construct and keep in repair said bridge, which it is alleged is more than sixty feet in length, and the contention is based on the provisions of sec. 2242, Rev. Codes, as amended by the twelfth session of the legislature (see Sess. Laws 1913, p. 51). Said section

Opinion of the Court-Sullivan, J.

provides, among other things, that "All public bridges exceeding sixty feet in length over any stream crossing a state or county highway shall be constructed and kept in repair by the county."

The bridge in question is essential to, and the only means of travel from, that portion of the county lying on one side of the city of Kellogg to that portion of the city lying on the other side thereof. It is contended by counsel for appellant that the section of the statute from which the excerpt above quoted is taken must be construed as a whole and in pari materia with other sections of the statute relating to roads and bridges as well as the respective powers and duties of the board of commissioners, on the one hand, and councils or trustees of incorporated cities and villages, on the other. Said sec. 2242 as amended is as follows:

"The city councils of cities of the second class and board of trustees of villages shall have the care, supervision and control of all public highways, bridges, streets, alleys, public squares and commons within such city or village, and shall cause the same to be kept open and in repair and free from nuisances.

"All public bridges exceeding sixty feet in length over any stream crossing a state or county highway shall be constructed and be kept in repair by the county: Provided, that when any city or village has constructed a bridge over a sixty foot span on any county or state highway within its corporate limits and has incurred a debt for the same, then the treasurer of the county in which said bridge is located shall pay to the treasurer of such city or village seventy-five per cent of all bridge taxes collected in said city or village until said debt and interest upon the same is fully paid: Provided, further, that the city council or board of trustees may appropriate in the manner hereinafter provided, a sum not exceeding five dollars per linear foot to aid in the construction of any county bridge within the limits of such city or village. on a highway leading to the same, or any bridge across any unnavigable river which divides the county in which said