the state of facts greatly at variance with the real stat
facts concerning the subject matter of the rights of the
to secure by mandate shares of stock in the defendant
pany, all of which will more particularly appear in t
fendant's answer. Defendant further says that it is
intention of this defendant to disregard in any
decision of the supreme court of this state in the c
mentioned, but the defendant company makes this
to the complaint of the plaintiff for the reason th
fendant company believes that the decision in the s
rendered and decided upon a misapprehension as
and law governing the rights of the respective pa
It is also alleged in the answer that if defe
pelled to make its present water supply, even
the use of water to its entire capacity, do d
lands than that belonging to its present st
are entitled to its use under their contracts,
to deliver to any stockholder a supply of
irrigate his land; that it is provided in and
said contract that each water right holde
entitled to the use and to have delivered
second-foot per acre, said amount to be
not further than one-half mile from the
use, and that in order to enable it to de
water to its present stockholders, all of
supply is and will continue to be neces
also, that in order for defendant's
have a supply of water ample in v
rigate their lands, it will be necessary
of a second-foot per acre, and that i
any system of rotation or any oth
which the present available wate
more than the lands of the prese
them with an adequate amount o
poses.

It is further alleged in the an
commenced-
ling in th
judicial d

or Twin

Points Decided.

(September 30, 1915.)

GOOD ROAD DISTRICT NO. 2 OF WASHINGTON COUNTY, a Municipal Corporation, Appellant, v. WASHINGTON COUNTY, a Municipal Corporation, and FRANK E. SMITH, Clerk of the District Court and ex-officio Auditor and Recorder of Washington County, Respondents.

[152 Pac. 183.]

SUBSTITUTION OF PARTIES-TAX LEVY IN GOOD ROAD DISTRICTS-APPORTIONMENT FOR CONSTRUCTION AND REPAIR OF ROADS AND Bridges. 1. Held, under sec. 4108, Rev. Codes, that Weiser Valley Highway District is entitled to be substituted for, and in lieu of, Good Road District No. 2.

2. The purpose of the enactment of sections 1049 to 1060, inclusive, Rev. Codes, and the amendments thereto (secs. 1056 and 1058 amended, Sess. Laws, 1909, pp. 172, 173, sec. 1054 amended, Sess. Laws, 1911, p. 188, and sec. 1056 amended, Sess. Laws, 1915, p. 48), was to create good road districts and provide for the raising of money by tax levies for the construction and improvement of highways within such districts.

3. "Highways," as defined by sec. 874, Rev. Codes, "are roads, streets or alleys, and bridges, laid out or erected by the public, or if laid out or erected by others, dedicated or abandoned to the public."

4. Sec. 1056, Rev. Codes, as amended, Sess. Laws, 1909, pp. 172, 173, provides inter alia that "the county auditor shall set apart seventy-five per cent (75%) of the general tax levy raised for road purposes in the district to the credit of such district, which shall constitute a fund for the improvement of the roads in such district.” Held, that it was the intention of the legislature to include the tax levy for bridge as well as for road purposes, and that it is the duty of the county auditor to set apart 75 per cent of the general tax levy raised in a good road district for both road and bridge purposes to the credit of such district for the improvement of its roads and bridges.

APPEAL from the District Court of the Seventh Judicial District for Washington County. Hon. Ed. L. Bryan, Judge.

Opinion of the Court-Budge, J.

Action to recover tax collections made by Washington county for bridge purposes in a good road district. Judgment for defendant. Reversed.

Ed. R. Coulter, for Appellant.

The terms "highway" and "road" have been used indiscriminately, and are synonymous in our statute. 882 and 936, Rev. Codes.)

(Secs. 874,

Reference to the definition of "roads," "highways" and "bridges" as found in "Words and Phrases" shows that the general interpretation given by all authorities of the various states is to the effect that bridges are a part of roads and highways.

A change in the limits of a municipality by annexing territory thereto does not change the identity of the corporation or affect the title of property which it holds at the time of the annexation. As a general rule, on the consolidation of municipal corporations, or the annexation by one municipality of the territory of another, under legislative authority, the property and assets of the old corporations or the corporation whose territory is annexed becomes, in the absence of provisions to the contrary, the property and assets of the consolidated or annexing corporation. (28 Cyc. 219, and cases cited; Maumee School Tp. v. Shirley City School Town, 159 Ind. 423, 65 N. E. 285.)

James Harris, for Respondents.

Sec. 896, Rev. Codes, as amended by chapter 60 of the 1911 Sess. Laws determines definitely that there is a distinction in law between a tax for road purposes and a tax for bridge purposes. It must follow that the phrase "general tax levy raised for road purposes" means the same in one section of the law as in another and that when it is used in sec. 1056 it was intended to indicate the same tax as it did in sec. 900 and as it does in sec. 896.

BUDGE, J.-The plaintiff, Good Road District No. 2, was duly organized and created under the general laws of the

Opinion of the Court-Budge, J.

state of Idaho applicable to the good road districts, and was exercising the functions of such district in pursuance of sections 1056 to 1060, Rev. Codes, as amended Sess. Laws 1909, p. 172, prior to and during the years 1910, 1911 and 1912.

On September 1, 1913, the board of commissioners of said good road district failed to provide or levy a tax upon the assessable property within said district as provided by sec. 1056, Rev. Codes, as amended, supra; and it never at any time voted bonds for the improvement of roads within that district.

On December 8, 1914 the territory within Good Road District No. 2 together with adjoining lands was duly organized into a highway district known as the "Weiser Valley Highway District," of Washington county.

This action was instituted by the appellant in the district court of the seventh judicial district in and for Washington county, on July 25, 1913. Judgment was rendered January 28, 1914. This appeal was perfected during the month of February, 1914. The order creating the Weiser Valley Highway District was duly entered on December 17, 1914.

Upon the hearing of this cause, the appellant by proper notice and motion moved this court to enter an order substituting the Weiser Valley Highway District of Washington county in lieu and instead of Good Road District No. 2. This motion for substitution is based on sec. 4108, Rev. Codes, which provides that "An action or proceeding does not abate by the death or any disability of a party, or by the transfer of any interest therein, if the cause of action or proceedings survive or continue. In case of the death or any disability of a party, the court, on motion, may allow the action or proceeding to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding.'