Mowry v. Dep't of Pub. Works & Bldg.

• Citation: 345 Ill. 121,177 N.E. 753
• Decision Date: 09 October 1931
• Docket Number: No. 20654.,20654.
• Parties: MOWRY et al. v. DEPARTMENT OF PUBLIC WORKS AND BUILDINGS et al.
• Court: Supreme Court of Illinois

345 Ill. 121

177 N.E. 753

MOWRY et al.

v.DEPARTMENT OF PUBLIC WORKS AND BUILDINGS et al.

No. 20654.

Supreme Court of Illinois.

June 18, 1931.

Rehearing Denied Oct. 9, 1931.

Suit by Herbert B. Mowry and others against the Department of Public Works and Buildings and others. From a decree of dismissal, complainants appeal.

Affirmed.Appeal from Circuit Court, Sangamon County; Frank W. Burton, judge.

W. T. Sumner, of Jerseyville, C. L. Conder, of Pekin, and G. G. Reardon, of Jerseyville, for appellants.

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

DUNN, J.

The appellants, who are citizens and taxpayers of Tazewell and Logan counties, filed their bill in the circuit court of Sangamon county to enjoin the department of public works and buildings from awarding any contract for the construction of a hard-surfaced road on a part of that section of Route 122, in Tazewell county, from Delavan to Hopedale and Minier. The department also located Route 121 from Morton, in Tazewell county, to Hartsburg, in Logan county, and the complainants amended their bill further to enjoin the construction of Route 121 as located between Morton and Hartsburg. Answer and replication thereto were filed, the cause was heard, and a decree was rendered dismissing the bill for want of equity, from which the complainants have appealed.

Routes 121 and are provided for by the Hundred Million Dollars Road Bond Issue Act, approved June 29, 1923 (Laws 1923, p. 512). Route 121 is described in the act (section 9) as, ‘Beginning at Peoria and extending in a southeasterly direction to the Indiana State Line east of Chrisman affording Peoria, East Peoria, Morton, Hartsburg (with a suitable connection to Emden), Lincoln, Mt. Pulaski, Narita, Latham, Heman, Warrensburg, Decatur, Antioch, Casner, Tuscola, Newman, Chrisman and the intervening communities reasonable connections with each other.’ And Route 122 is described in the act (section 9) as, ‘Beginning at Bloomington and extending in a westerly direction to an intersection with Route No. 43 north of Easton (with a suitable connection to San Jose), running along Route No. 24 from a point west of Delavan to a point west of Allen, affording Bloomington, Stanford, Minier, Hopedale, Delavan, San Jose, Allen and the intervening communities reasonable connections with each other.’

A map was introduced in evidence, from which it appears that Hartsburg is about twenty-five miles almost due south from Morton. Hopedale is about halfway between the two and about two miles east of the north and south line between them. Delavan is six miles west and three miles south of Hopedale. Emden is two miles north of Hartsburg and one mile west of the west location of the line from Morton to Hartsburg. Route 121 south from Morton to Hartsburg will therefore intersect Route 122 near Hopedale and between Delavan and Hopedale.

The petition for leave to file the original bill in this case was presented to the circuit court on September 8, 1930. At that time the department of public works and buildings had located Route No. 122 from Delavan to Hopedale and Minier except that part which was dependent upon the future location of Route 121, the intention being to make the two routes coincident where it was feasible to do so, and the portion of Route 122 between Delavan and Minier had been divided for construction purposes into sections 126, 127, and 127B. The highway as located proceeded northeast from the end of Fourth street in Delavan to a highway near the northwest corner of section 11, town 22, range 4 west; thence east along the public highway to the southeast corner of section 5, town 22 north, range 3 west; thence it ran along the public highway in a northerly direction to a point about three-quarters of a mile south of the northwest corner of section 28, township 23 north, range 3 west; thence in a northeasterly direction to a point in the public road about forty-five rods east of the northwest corner of section 28; thence running in an easterly direction along the public highway to Hopedale and beyond. The bill alleged that no definite final location had been made of Route 121 on September 5, 1930, but Frank T. Sheets, chief highway engineer of the department,testified that after thorough investigation, which he detailed, the course of Route 121 from Morton to Hartsburg was determined and a few days later the formal order was entered on September 3, 1930. As thus located the two routes coincided, beginning at the southeast corner of section 5 and extending north for approximately three miles. The bill was amended to bring the location of Route 121 from Morton to Hartsburg within the scope of the litigation. The location of the north and south strip common to both routes has considerable bearing upon the location of Route 121 for the entire distance between Morton and Hartsburg, as will later appear. The case as made by the pleadings and the evidence and as contended in the argument is, not that Routes 121 and 122 as located are not feasible, but that a possible location exists for Rule 121 and the part which is common to both routes which is so far better than the location chosen by the department as to show an improper exercise of the discretion vested in the department in respect to the location of these highways, and that it was the legislative intent that Route 121 should be located approximately as proposed by the appellants.

No question is made of the propriety of locating the two routes in common for the distance of approximately three miles. The route proposed by the appellants as most desirable for Route 121 runs south from Morton, varying from a north and south line very little and only as the topography of the country makes a variance desirable, passing over a line which is one mile east of the three-mile north-and-south strip chosen by the department as a common roadway for the two routes, and extending south through the far east side of Hartsburg to a junction southeast of Hartsburg with the route as located by the department. Should Route 121 be built upon this proposed location, Route 122 would join it one mile east of the junction as located by the department and the two would coincide for a distance of three miles, one mile east of the location made by the department, and no further change in Route 122 would be required, nor would any disadvantage accrue to Route 122 by the change either as to cost, distance to be traversed by traffic, or feasibility of construction. The case will therefore be considered as solely depending upon a proper location of Route 121. If Route 121 must be located as the appellants contend, of course the change in Route 122 follows.

Route 121 has been constructed or the contract let for its construction from East Peoria to a junction with Route 9 at the business center of Morton. Route 9 comes from the east on Franklin street and from its junction with Route 121 runs southwest on Tremont street, which runs from northeast to southwest through the town. The location of Route 121 made by the department of public works and buildings is the west of the two in controversy and begins at the pavement at the northwest corner of Morton and extends south along the corporate limits. The appellees contend that from a point of beginning at the northwest corner of Morton south along the west line of Morton and then east to the east location, then following the east location to the junction with the west location at the southeastern corner of Hartsburg, the distance is 26.8 miles, and that from the same point of beginning to the same ending the distance over the west location is 26.9 miles; and from the junction of Routes 9 and 121 in Morton the distance over the east location to the common junction southeast of Hartsburg is 26.4 miles, while the distance between the same starting and stopping points over the west location is 26.7 miles. The appellants contend that by the east locationfrom Bloomington street in Morton to the junction with the west route southeast of Hartsburg the distance is 25.48 miles, while the west location from the northwest corner of Morton to the same point southeast of Hartsburg the distance is 27.20 miles, making a saving in pavement required of 1.72 miles. This saving is in part owing to the fact that the pavement of Route 121 has been or will be laid to the junction of Routes 9 and 121 in Morton, and that other pavements exist there which may be utilized by the east route in leaving the junction and going out of Morton to Bloomington street. It is obvious that the saving in distance to be traveled is slight. Furthermore, the saving in paving is at the most but .72 of a mile, for the connection required by the legislation at Emden is one mile to the west location or two miles to the east location.

Comparative cost of construction is likewise a small factor. Walter P. Backes, a graduate of Rensselaer Polytechnic Institute of Troy, N. Y., in civil engineering in 1911, with practical experience in his profession since his graduation, testified for the appellants: ‘I have made an estimate of the total cost of the designated route and the suggested route from their point of separation south of Hartsburg to their terminus. The total estimated cost of the designated route is $893,752 and the total estimated cost of the suggested route is $838,010. The difference in the cost of construction of these two routes is $55,742. The estimates of cost that I have arrived at are based on the same unit prices.’ For the appellees, John D. Mattison, assistant district engineer district No. 4 with the division of highways of the department of public works and buildings, testified: ‘My estimate of the total cost of constructing a road on the location selected by the State from the point of intersection with the road running through Morton to the northwest down through Hartsburg to the point where it would coincide with the...