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

• Decision Date: 19 October 1929
• Docket Number: No. 19374.,19374.
• Citation: 336 Ill. 513,168 N.E. 372
• Parties: STEWART v. DEPARTMENT OF PUBLIC WORKS AND BUILDINGS et al.
• Court: Illinois Supreme Court

336 Ill. 513

168 N.E. 372

STEWART

v.DEPARTMENT OF PUBLIC WORKS AND BUILDINGS et al.

No. 19374.

Supreme Court of Illinois.

Oct. 19, 1929.

Commissioner's Opinion.

Bill for injunction by A. D. Stewart and others against the Department of Public Works and Buildings and others. From a decree of dismissal, complainant named appeals.

Decree affirmed.

Appeal from Circuit Court, McLean County; Edward Barry, judge.

Sigmund Livingston, of Chicago, and W. B. Leach and Herbert M. Livingston, both of Bloomington, for appellant.

Oscar E. Carlstrom, Atty. Gen., G. E. Nelson, of Springfield, and Hall, Martin, Hoose & De Pew, of Bloomington, for appellees.

PARTLOW, C.

On August 6, 1928, appellant, A. D. Stewart, and five other citizens and taxpayers of the village of Anchor, filed their bill for an injunction in the circuit court of McLean county to restrain the department of public works and buildings, the director thereof, the superintendent of highways, and the Cast Stone Construction Company from constructing a concrete road on section 127 of bond issue Route 165, and to restrain the auditor of public accounts and the state treasurer from drawing any orders or making any payments on account of work done. The bill alleged that the route which will afford the most direct connection between the villages named in the statute is along the line of the Kankakee & Southwestern Railroad, which is a part of the Illinois Central; that there was a public hearing, at which it was determined that the route should be along the south side of the railroad; that thereafter a relocation was made by the department of public works and buildings to the route on which the road is being constructed; that a contract was entered intofor section 127 with the Cast Stone Construction Company; that the village of Anchor is one-fourth of a mile south of the route selected; that the shortest and most feasible route for the road is on the south side of and parallel with the railroad between Colfax and Anchor; that complainants have offered to furnish the right of way over this route free of charge; that the department of public works and buildings is without authority to lay out the road or let the contract upon the route selected because it does not afford the village of Anchor reasonable connections with other towns, as provided in the statute. A limited appearance was entered by defendants, and they moved to dismiss the bill on account of the failure to comply with section 27 of chapter 69 of the statute (Cahill's Rev. St. 1927, p. 1409). Complainants claimed that this section only had reference to the state treasurer and that the statute is unconstitutional. The court dismissed the bill as to the auditor and treasurer because of the failure to comply with this statute and overruled the motion as to the other defendants. Answers were filed, the evidence was heard in open court, the bill was dismissed for want of equity, and an appeal was prosecuted to this court by complainant Stewart.

On June 29, 1923, the Legislature passed an act (Cahill's Rev. St. 1927, p. 2201) which provides that a durable, hard-surfaced road shall be constructed along Route 165, described as follows: ‘Beginning at Sibley and extending in a southwesterly direction to an intersection with Route No. 9 at a point south of Merna, affording Sibley, Anchor, Colfax, Cooksville, Merna and the intervening communities reasonable connections with each other.’ Section 9 provides that the general location of the routes upon which the proposed roads are to be constructed shall be substantially as described in the section, so as to connect with each other, in substantially the manner therein described, the different communities and the principal cities of the state, and that the department of public works and buildings shall have authority to make such minor changes in the location of said routes as may become necessary in order to carry out the provisions of the act. Section 7 provides that the roads are to be constructed in strict accordance with the plans and specifications, estimates of cost, and contracts of the department of public works and buildings.

Route 165 is about 28 miles long and extends in a northeasterly and southwesterly direction, with Sibley at the east end and Merna at the west end. Sibley is about five miles north and twenty-three miles east of Merna. About eight miles west of Sibley is Anchor, an unincorporated village of about 200 people. West of Anchor about four miles is Colfax, and west and south of Colfax about six miles is Cooksville. All of these villages except Sibley lie along the Kankakee & Southwestern Railroad, now a part of the Illinois Central, which runs in a southwesterly direction from Colfax to Merna. The railroad extends due east and west between Colfax and Anchor and then veers northeast from Anchor to the north line of McLean county. Route 165 is divided into several sections, one of which is No. 127, which extends each from a point about one-fourth of a mile east of the northeast corner of Colfax about six and one-half miles to a point about one-fourth of a mile east of the point where the route as laid out crosses the railroad on the road towards Sibley. Section 128 is east and section 126 is west of section 127. Both Colfax and Anchor are near the center line of government sections. The highway finally selected is on the township line about one-fourth of a mile north of Anchor, thus leaving Anchor off of the main traveled hard road one-fourth of a mile. To remedy this, a spur is to be built extending south from the paved road to and through Anchor.

No complaint is made of this route as located except that part between Colfax and Anchor, a distance of about four miles. The road as laid out to which no objection is made extends west from Sibley about seven and one-half miles to the center of section 33, which is about one and one-half miles northeast of Anchor. It then extends south on the center line of the section to the railroad. It then extends southwesterly across the southeast corner of the west half of section 33, parallel with the railroad, until it connects with the road extending west near the southwest corner of section 33. It is from this point west that the dispute arises. The department of public works and buildings extended the road directly west from this point a distance of about four miles, past the north limits of Colfax and beyond the west limit of section 127. Appellant insists that from where the road extends southwesterly, parallel with the railroad, and connects with the road extending west four miles to Colfax, a change should be made, and that it should continue in a southwesterly direction, parallel with the railroad, through the center of Anchor and then extend west, parallel with the north line of the railroad, through the south part of Colfax. In other words, that the road from Anchor to Colfax should be moved south about one-half mile, so that it will extend through the center of both Anchor and Colfax and not miss Anchor about a quarter of a mile.

The statute does not designate the particular roads to be improved on Route 165. It specifies the limits of the route, its general direction, and the villages to be served. The department of public works and buildings is vested with authority to select the particular highways, within reasonablelimits, on the general route designated by the statute and to make such minor changes in the route as may be necessary for the best interests of the people of the state. Wiley v. Department of Public Works, 330 Ill. 312, 161 N. E. 783;People...