Hall v. People Ex Rel. James H. Rogers

• Decision Date: 30 September 1870
• Citation: 1870 WL 6631,57 Ill. 307
• Parties: THOMAS C. HALL et al.v.THE PEOPLE ex rel. JAMES H. ROGERS et al.
• Court: Illinois Supreme Court

57 Ill. 307

1870 WL 6631 (Ill.)

THOMAS C. HALL et al.

v.THE PEOPLE ex rel. JAMES H. ROGERS et al.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Peoria county; the Hon. S. D. PUTERBAUGH, Judge, presiding.

Messrs. JOHNSON & HOPKINS, for the appellants.

Messrs. MCCULLOCH & CRATTY, for the appellees.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This was a petition for a writ of mandamus, on the relation of James H. Rogers and Thomas Shaw, in the Circuit Court of Peoria County, against Thomas C. Hall, Noah Marshall, and Henry Shaw, commissioners of highways of the township of Radnor, to compel them to take the necessary steps, under the law, to open a certain highway, which it is alleged had been previously laid out by a former board of commissioners of said township.

The petition recites at length, all the proceedings had by the commissioners of highways in laying out the road in question, from the presentation of the petition for the same, by the requisite number of legal voters, down to the assessment of damages to the several parties over whose land the road is to be constructed.

To the alternative writ, issued herein, the respondents Noah Marshall and Henry Shaw made return:

First, That they are not bound to execute said writ, because the relators are private individuals, and do not appear to be citizens of the town of Radnor, and that the people and authorities of Radnor have the exclusive control of highways in said township.

Second, Because said highway is not a legal highway, for the reason, that only two of the commissioners acted in laying out the same.

Third, Because they are not bound to open said road, until after the owners of land over which the road will pass, have been legally notified to remove their fences; and they deny that any such notice has ever been given or served.

Fourth, Because the time has not yet elapsed within which the owners of the land had time given them, and were notified by these respondents, to remove fences, and because the respondents, commissioners of highways, soon after their election, and before the commencement of this proceeding, in the exercise of their best discretion as commissioners, considering it impossible to open and work said road during the wet weather and spring of that year, did, in the month of May, 1869, inform and notify the owners of land, that the said road need not be opened until the first day of October, 1869, the respondents believing an earlier opening of said road impracticable, oppressive and useless, and so gave the extension of time aforesaid, as they well might do; that the owners of land acted in good faith on said notice, and that the time so given in which to open said road had not expired when these proceedings were instituted.

Fifth, Because said writ is not sufficient in substance and in material matter, for them to answer unto, or execute.

A demurrer was interposed by the relators, to the return, and all and every allegation thereof, which was by the court sustained. The respondents electing to stand by their return, the court awarded a peremptory writ of mandamus and gave judgment against the respondents for costs.

The appellants bring the cause to this court, and assign for error the following causes, viz:

First, That the court erred in sustaining the demurrer to the return.

Second, That the court erred in awarding the peremptory writ of mandamus in said cause.

Although the return is informal, and technically defective, we have not for that reason, sought to avoid the consideration of the questions attempted to be presented by the return.

In considering the first error assigned, we propose to notice the objections to the legality of the proceedings in laying out the highway in question, and the reasons for not opening the same, in the order presented by the appellants in the return itself.

By the first allegation in the return it is averred, that it does not appear that the relators are citizens of the town of Radnor, in the county of Peoria. This objection is not well taken. Upon inspection of the record, we think it sufficiently appears that the relators were not only citizens of the county of Peoria, but also residents of the town of Radnor, in which the road in question is situated. It appears from the record that one of the relators was one of the commissioners who laid out this very road, and that the other was one of the petitioners for the same, and is so described in the proceedings, and this allegation is nowhere, in express terms, denied in the return. It would doubtless have been more accurate if the petition had contained an express averment, that the relators resided in Radnor township.

It is insisted, however, that the relators in this instance were mere private citizens, having no other interest in the highway than the public generally, and therefore, that neither the alternative nor the peremptory writ should have been awarded on their relation. The respondents deny that a mere private citizen, if he has no other interest than the public in general have in the performance of a duty by a public officer, can invoke this extraordinary writ, and thereby put the machinery of the law in motion for the benefit of the public. It is apparent that if these relators resided in the township, they would have an interest, in common with all other citizens of the town, in having this highway opened to the public use. It would be most extraordinary if commissioners of highways could stand still and say that they alone are invested with the sole discretion to say when and in what manner they will perform the public duties imposed by their office, and that no mere private citizen can call upon the courts to compel them to perform those public duties in which all are alike interested. Such is not the law. It is undoubtedly true, as a general rule, that where a party invokes the aid of this writ, he must have some interest, special to himself, or in common with the public, in the performance of the act he seeks to compel. A mere stranger can not officiously interfere to compel the performance of an act in which he has no interest whatever, for the very satisfactory reason, that it is supposed the real parties in interest, when they desire to have the act performed, will move in the matter of their own motion.

The case of The County of Pike v. The State, 11 Ill. 202, is conclusive on this point. It was there said, that “where the object is the enforcement of a public right, the people are regarded as the real party, and the relator need not show that he has...