People Ex Rel. Josiah W. Stine v. the Bd. of Supervisors of Vermilion County.

• Decision Date: 31 January 1868
• Citation: 1868 WL 4972,47 Ill. 256
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS ex rel. JOSIAH W. STINEv.THE BOARD OF SUPERVISORS OF VERMILION COUNTY.
• Court: Illinois Supreme Court

47 Ill. 256

1868 WL 4972 (Ill.)

THE PEOPLE OF THE STATE OF ILLINOIS ex rel. JOSIAH W. STINE

v.THE BOARD OF SUPERVISORS OF VERMILION COUNTY.

Supreme Court of Illinois.

January Term, 1868.

OPINION TEXT STARTS HERE

PETITION for a mandamus.

The facts in the case are stated in the opinion of the court.

Mr. E. M. HAINES and Mr. A. C. STORY, for the relator.

Messrs. STUART, EDWARDS & BROWN, and Mr. C. BECKWITH, for the respondent.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

The questions made on this record arise upon a demurrer to a return to an alternative writ of mandamus, sued out of this court, on the relation of Josiah W. Stine, against the Board of Supervisors of Vermilion county.

The object of the proceeding was, to compel the board of supervisors to levy a tax, sufficient in amount, as found by the commissioners of highways, and duly laid before the board of town auditors, of the town of Danville, to construct a bridge across the north fork of Vermilion river, on the east half of section seven, in township nineteen, north of range eleven west, near Hobson & Aylesworth's woolen factory, in the village of Danville, on the public highway, at the point where it intersects and crosses that river.

The expense thereof was estimated by the highway commissioners at fifteen thousand seven hundred dollars, and the amount raised by ordinary road taxes applicable to this object, was two hundred dollars only, leaving fifteen thousand five hundred dollars to be levied.

This estimate, the board of town auditors laid before the board of supervisors on the 27th day of March, 1866.

The board of supervisors refused to levy the tax for reasons which appear in the return, the truth of which the demurrer admits.

The first order of the commissioners of highways to construct the bridge, and their estimate of the cost, was made March 27, 1866. This board was superseded by the election of another and different board, who, on the ninth of April, 1867, at a regular meeting, vacated, rescinded and annulled the first order, and all previous action, orders and resolutions and doings of those commissioners in relation to this bridge, of which the board of supervisors were duly notified at their September session of that year.

This action of the board of highway commissioners must be taken in this proceeding as evidence that the public convenience did not require the bridge. This record does not show that a contract had been made under the first order, by which rights of third persons had become vested. An agreement is alleged, by which Kiger, one of the commissioners of highways, was to have the contract for building the bridge at his own figures, but that it was awarded to him does not appear, and the agreement itself is denounced as fraudulent, and a contract, if made, is alleged to have been made secretly, without offerings, and in violation of the law. If this be so, then the power to rescind the first order cannot be questioned. No private rights are affected by the rescission. The public convenience and necessities are of the first importance, and those persons appointed as guardians over them can modify, alter or rescind any order their predecessors may have made, which does not involve the destruction of private rights.

It would appear, from this record, that there was not, at the time this estimate for the bridge was made, any public road at the point indicated. The relator, in answer to this, insists that the act of vacating the road by the board of supervisors is an admission there was a road to be vacated. There is force in this, and it follows, there being a road there at a time prior to the action of April 9, 1867, and it was then vacated, the presumption must obtain it was vacated according to law. That the same body which has power to open a road or build a bridge in aid of it, cannot vacate the road, or annul the contract for building the bridge is not admitted. A contract of this nature can be annulled by the act of one party, he being liable for all damages consequent thereon.

Annulling a contract by one party to it, without the consent of the other party, impairs in no degree the obligation of the contract, if it had any. That can always be enforced in a court of justice.

But the contracting party is not the complainant here. He makes no claim to the interposition of this court to compel the performance of the contract, or inform the court that his rights are about to be taken from him. That a mere tax payer, who has no particular interest in the subject of the controversy, can proceed to the extremity sought by this proceeding, cannot be admitted. This consideration would have denied the relator the alternative writ.

But we pass to other topics.

The broad ground is assumed in this case, that the decision of the commissioners of highways of a township in counties adopting township organization, that a bridge was necessary at a particular place, and should be constructed, and estimates therefor made and delivered to the board of town auditors, and by them duly placed before the board of supervisors of the county, is final and conclusive, and of a nature so powerful as to compel immediate action by the board to levy the necessary amount of taxes to defray the expense of its construction. In the broad terms in which this is put forth, we cannot acquiesce.

A reference to the township organization law will show the power of the commissioners of highways in this regard, and the consequent duty of the board of supervisors.

Section one of article seventeen, provides that the commissioners of highways, in the several towns shall have the care and superintendence of highways and bridges therein, and it shall be their duty, 1st, to give directions for the repairing of roads and bridges...