Martens v. Brady

• Decision Date: 07 October 1914
• Docket Number: No. 9454.,9454.
• Citation: 106 N.E. 266,264 Ill. 178
• Parties: MARTENS v. BRADY, State Auditor, et al.
• Court: Illinois Supreme Court

264 Ill. 178

106 N.E. 266

MARTENS

v.BRADY, State Auditor, et al.

No. 9454.

Supreme Court of Illinois.

June 16, 1914.

Rehearing Denied Oct. 7, 1914.

Appeal from Circuit Court, Sangamon County; Jas. A. Creighton, Judge.

Suit by Jacob Martens against James J. Brady, State Auditor, and others. From a decree of dismissal, complainant appeals. Affirmed.D. D. Donahue, of Bloomington, Huff & Huff, and Barry & Morrissey, of Bloomington, for appellant.

P. J. Lucey, Atty. Gen., and Thomas E. Dempcy, of Springfield, for appellees.

FARMER, J.

Appellant, in his capacity as taxpayer, filed his bill in chancery in the circuit court of Sangamon county to enjoin the auditor of public accounts from drawing warrants on funds appropriated out of the state treasury for the purpose of carrying out the provisions of ‘An act to revise the law in relation to roads and bridges,’ approved June 27, 1913 (Laws 1913, p. 520), and also to enjoin the state treasurer from paying any such warrants. The bill alleged that part of the act relating to what are called ‘state aid roads' is unconstitutional and void. A demurrer to the bill was sustained by the circuit court, and the bill dismissed for want of equity. This appeal was prosecuteddirect to this court, because the constitutionality of a statute is involved.

The first 33 sections of the act provide a plan for the construction and maintenance of roads at the joint expense of the state and county, called in the act ‘state aid roads.’ The appellant alleges these provisions of the act are unconstitutional. Section 1 provides that the term, ‘state road and bridge fund,’ when used in the act, shall mean all moneys appropriated by the state for road and bridge purposes; that the term ‘state aid roads' shall mean all roads and bridges constructed, repaired, or improved at the joint expense of the state and any county or counties within the state. Section 2 creates a department to be known as the ‘state highway department,’ the officers of which shall consist of the members of the state highway commission, the chief state highway engineer, the assistant highway engineer, and various subordinate employés as provided in the act. Section 3 provides for the appointment of the state highway commission by the Governor, their qualifications, duties, terms of office, and salaries. Said commission is given general supervision of highways and bridges constructed or maintained, in whole or in part, by the aid of state moneys. Other portions of said section 3 relate to the powers of the state highway commission in carrying out the provisions of the act. Sections 4, 5, 6, and 7 also relate to the powers and duties of persons connected with the state highway department and the appointment of subordinate agents and employés. Section 8 provides for the appointment of a county superintendent of highways, to be selected by the county board in the manner in said section specified, and prescribes the duties and powers of said officer. Section 9 provides that public highways or sections thereof, including bridges, may be laid out, improved, or constructed at the joint expense of the state and any county within the state, and in such case the state shall contribute one-half the expense,and the county or counties through which the highway or major portion thereof passes shall contribute one-helf. Such highways are known as ‘state aid roads,’ but no road or part thereof within the corporate limits of any city or village can be constructed with state aid. Section 10 makes it the duty of the board of supervisors or county commissioners, at their next meeting after the passage of the act, to designate the public highways within their respective counties which shall come under the provisions of the act. ‘The highways to be designated by the county boards shall be as nearly as possible those highways connecting the principal cities and trading points in each county with each other, and also with the principal cities and trading points in other counties.’ Section 11 provides that such highways shall not include any portion of a public highway within the corporate limits of any city or village, ‘nor shall the total mileage of such highways in any county exceed, in counties of the first class, more than fifteen per centum of the total public road mileage of that county, nor exceed twenty per centum of the public road mileage in counties of the second class, and shall not exceed twenty-five per centum of the public road mileage in counties of the third class.’ The public road mileage of the counties is to be as determined and published by the state highway commission. By section 12 county boards are required to indicate the highways selected for state aid roads by marking them upon a map showing the public roads and section lines in the county. The map showing the roads designated is to be sent to the state highway commission for examination and final determination. Said state highway commission has authority to make such changes as will best serve to make the most direct routes between cities and trading points of the different counties. By section 13 the highways selected by the county boards, as revised by the state highway commission, shall be the highways to which the act shall apply, and it shall not apply to any other public highways. By section 14 the map showing the roads designated for state aid is required to be kept in the office of the county clerk, and no changes therein can be made except by a vote of the county board with the approval of the state highway commission, and no changes can be made prior to three years after filing the map. Section 15 provides that if any county board fails, for six months after the passage of the act, to forward to the state highway commission a map indicating state aid roads the selection may be made by the state highway commission. Section 15a is as follows:

‘Sec. 15a. The improvement of a system of state highways as herein provided shall be carried on as follows: From such appropriations as the General Assembly may from time to time make for the purpose of carrying out the provisions of this act, there shall be allotted by the state highway commission each year for each county an amount that shall bear the same ratio to the total appropriation for that year that the total amount levied in each county for roads and bridges bears to the total amount levied in the state for roads and bridges, as determined from the published reports of the auditor of public accounts from the last year so reported: Provided, that to counties, in which more than forty per cent. of the total amount appropriated by the General Assembly for building roads is collected, including any amount collected for automobile and kindred licenses, and devoted to road building by such appropriation, there shall be allotted, under the provisions hereof, an amount equal to twenty-five per cent. (25%) of the amount so collected in such county. The sum so allotted to each county shall be used to defray the cost of constructing state aid roads when such work is carried on in conformity with the provisions of this act: Provided, that the allotment made by the state shall not be used to defray more than one-half the cost of any improvement done under the provisions of this act.’By section 15b, if any county fails, within six months of the date of the allotment, to provide and appropriate an equal amount to that allotted by the state highway commission, then the amount so allotted is forfeited by said county and shall be reallotted to counties having complied with the requirements of the act. By section 15c it is made sufficient acceptance of the allotment if the county board gives notice to the state highway commission that it has assessed a tax to raise its portion of the cost or passed an order submitting to a vote of the people the question of raising an additional tax or issuing bonds for the purpose. Section 16 relates to the initiation of proceedings for the construction of a state aid road by resolution of the county board. Section 17 relates to the duty of the state highway commission upon receipt of a resolution of the county board. Section 18 relates to the survey by the state highway engineer of the highways to be improved and the making of maps, plans, specifications, and estimates of cost. Section 19 provides that if the plans require the taking or damaging of property the damages may be ascertained under the eminent domain act. Section 20 requires the state highway engineer to make a complete report to the state highway commission of surveys, plans, specifications, and estimates; and by section 21 the final determination of said state highway commission is to be transmitted to the county board. Section 22 authorizes the county board to appropriate one-half the cost of improving the state aid roads determined upon, if there are sufficient funds in the treasury for that purpose, or to raise the money by issuing bonds by vote of the people. Section 23 requires all moneys appropriated by the county board to aid in the construction of state aid roads, and all moneys raised by taxation therefor, to be kept as a separate fund until paid out according to the provisions of the act, and its expenditure for any other purpose is prohibited. Section 24 requires the county board to notify the state highway commissionof the method adopted to provide for the contemplated state aid roads. Section 25 provides for the order in which the work shall be taken up in the different counties. Sections 26 and 27 relate to the letting of contracts for doing the work, and section 28 to the payment of the contractors. Section 29 relates to the rights of the contractor under any contract entered into, under the provisions of the act, between the state highway commission and the contractor. Section 30 relates to the powers of the state highway commission in the event of its being unable to let the contract for a sum not...