Boyden v. Dep't of Pub. Works & Bldgs.

• Decision Date: 07 October 1932
• Docket Number: No. 21252.,21252.
• Citation: 349 Ill. 363,182 N.E. 379
• Parties: BOYDEN v. DEPARTMENT OF PUBLIC WORKS AND BUILDINGS et al.
• Court: Illinois Supreme Court

349 Ill. 363

182 N.E. 379

BOYDEN

v.DEPARTMENT OF PUBLIC WORKS AND BUILDINGS et al.

No. 21252.

Supreme Court of Illinois.

June 24, 1932.

Rehearing Denied Oct. 7, 1932.

Suit by Charles W. Boyden against the Department of Public Works and Buildings and others. From an adverse decree, defendants appeal.

Reversed and remanded, with directions.Appeal from Circuit Court, Sangamon County; Charles G. Briggle, judge.

Oscar E. Carlstrom, Atty. Gen. (B. L. Catron, of Springfield, of counsel), for appellants.

Hibbs & Pool, of Ottawa, for appellee.

DUNN, J.

The circuit court of Sangamon county by its decree declared null and void the location by the Department of Public Works and Buildings and the superintendent of highways of Route No. 88 of the state-wide system of durable hard-surfaced roads from a point where Route No. 88 intersects Route No. 92 south to the point where it intersects Route No. 7, and enjoined the department and its director and the superintendent of highways from constructing any road upon such location between a point one and one-half miles south of the intersection of Routes Nos. 88 and 92 south to the intersection of Routes Nos. 88 and 7, and the defendants appealed.

The complainant, Charles W. Boyden, a resident, citizen, and taxpayer of the village of Sheffield, in Bureau county, filed his bill to the March term of the circuit court of Sangamon county. The defendants answered, replication was filed, the cause was heard in open court, and the decree was rendered at the November term, 1931.

There is no controversy about the facts. Route No. 88 was provided for in the act of 1923 (Laws 1923, p. 522, § 9, the Hundred Million Dollar Road Bond Issue Act), and is therein described as follows: ‘Beginning at Sterling and extending in a southerly direction to Peoria affording Sterling, with suitable connection to Tampico, Deer Grove, New Bedford, Sheffield (running along Route No. 7 from Sheffield to a point north of Buda) Buda, Bradford, Camp Grove, Edelstein, Peoria Heights, Peoria and intervening communities reasonable connections with each other.’ It appears from the pleadings and the evidence that Route No. 88 is completed from Peoria, its southern terminus, to an intersection with Route No. 7 north of Buda, and by means of Route No. 7 Sheffield and the various communities on Route No. 88 south of Route No. 7 have reasonable connections with each other. Route No. 88 is also completed from Sterling south to an intersection with Route No. 92. The intersection of Route No. 88 with Route No. 92 is thirteen and eight-tenths miles due north of its intersection with Route No. 7, and the Department of Public Works and Buildings and the superintendent of highways have surveyed and located Route No. 88 on a line running due north from its intersection with Route No. 7 to its intersection with Route No. 92 and have surveyed and located a spur one and nine-tenths miles long from Route No. 88 to New Bedford. The construction of the fifteen and seven-tenths miles thus located, together with the use of Route No. 7 from its intersection with Route No. 88 to Sheffield, is intended to be the completion of Route No. 88 in accordance with the terms of the statute.

It is the appellee's contention that the Department of Public Works and Buildings has exceeded its power in locating the highway between the two intersections because that part of the location is not a part of Route No. 88 as described in the statute but is a substantial departure from the route which was beyond the power of the department to make. In support of this contention he shows that Sheffield is an incorporated village with a population of over 900 inhabitants, located on Route No. 7 two and a half miles west and one-half mile south of its intersection with Route No. 88; that New Bedford is an incorporated village of about 150 inhabitants, located about ten miles north and about one-half mile east of Sheffield and is three and one-half miles south and one and nine-tenths miles west of the intersection of Routes Nos. 88 and 92; that at the time of the passage of the Road Bond Issue Act which established Route No. 88, and for twenty-five years prior thereto, there had been, and there now is, a public highway extending from Sheffield in a northerly direction to New Bedford, and through New Bedford to a point two miles north, thence easterly one and one-half miles and thence northerly one and one-half miles to a point where Routes Nos. 88 and 92 intersect; that this public highway at the time of the passage of the Road Bond Issue Act connected, and now connects, with Route No. 7 at a point in the village of Sheffield near its northern boundary, and for more than twenty-five years prior to the adoption of that act the residents in the intervening community between Sheffield and New Bedford have used, and now use, this highway for travel and communication between Sheffield and New Bedford, and this highway during all that time has been the usual, customary, and ordinary highway used by the citizens and residents of Sheffield and points south, west, and east to travel by horse-drawn and motor vehicles to New Bedford and points north, including the city of Sterling; that the city of Sterling is located forty-six miles due north of the junction of Routes Nos. 88 and 92; that the city of Kewanee is located on Route No. 34 fifteen miles southwest of Sheffield; that the public highway which has been mentioned at the time of the passage of the Road Bond Issue Act, and for many years prior thereto, was marked, designated, and known as the ‘Kee-Way trail’ and was a part of the Kee-Way trail, which extended, in part, from the city of Sterling to New Bedford, Sheffield, and Kewanee; that Route No. 88 was located from Sterling to Route No. 92 substantially on the Kee-Way trail; that the Kee-Way trail had been graded, improved, and marked and was the usual route of travel between Sheffield, New Bedford, and Sterling, and for a long time prior thereto was extensively used and traveled and is now so used and traveled; that the public highway described in the statute from the point where Route No. 88 now intersects Route No. 92, affording New Bedford and Sheffield reasonable connections with each other and ‘(running along Route No. 7 from Sheffield to a point north of Buda)’ as a part of the route to be improved with a durable, hard-surfaced road and known as Route No. 88, is a public highway which runs from New Bedford to Sheffield and enters the village of Sheffield from the north and then runs ‘along Route No. 7 from Sheffield to a point north of Buda’; and that ‘Line A’ on Exhibit 1 attached to the bill, being the Kee-Way trail, is the public highway which the Department of Public Works and Buildings is authorized and empowered to improve as a part of Route No. 88, and by the statute it is intended and provided that that line shall be improved by the Department of Public Works and Buildings as Route No. 88, the department having the right to make such minor changes in the location of ‘Line A’ as may become necessary in order to carry the provisions of the act into effect.

Before the passage of the statute it appears that while there was no direct road and no marked trail between Peoria and Sterling there was traffic coming from points north of the intersection of Routes Nos. 88 and 92 and going in a southerly direction toward Buda and Peoria, probably the greater part of which would go to Sheffield, which was two or three miles out of the way, because the Kee-Way trail was marked at that time and easier for people to find who did not know the way; but those who knew the roads and were going in a southerly direction would go south. Most of the traffic from Peoria going up to Buda and on north takes the Kee-Way trail because it is partly marked.

We have held in many cases that it was not practicable for the Legislature to describe in minute detail the particular course of every portion of each one of the 185 routes of the state-wide system of hard-surfaced roads for which it provided in the two road bond issue acts which it passed in 1917 (Laws 1917, p. 696) and 1923 (Laws 1923, p. 512). The routes are usually fixed in the statute by naming the termini, which are often many miles apart, with no direct public highway leading from one to the other and with many public highways intervening capable of being used in different combinations for a continuous highway from one end of the route to the other, and the power is delegated to the Department of Public Works and Buildings to determine the exact public highways between the termini upon which the road shall be constructed. The determination, however, is not left to an arbitrary discretion. While the termini are the only points fixed by the statute the roads are to be constructed between...