The Bd. of Supervisors of Kendall County v. People Ex Rel. Commissioners of Highways of Bristol.

• Decision Date: 31 December 1882
• Citation: 12 Bradw. 210,12 Ill.App. 210
• Parties: THE BOARD OF SUPERVISORS OF KENDALL COUNTYv.THE PEOPLE EX REL. COMMISSIONERS OF HIGHWAYS OF BRISTOL.
• Court: United States Appellate Court of Illinois

12 Ill.App. 210

12 Bradw. 210

THE BOARD OF SUPERVISORS OF KENDALL COUNTY

v.THE PEOPLE EX REL. COMMISSIONERS OF HIGHWAYS OF BRISTOL.

Appellate Court of Illinois, Second District.

December Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Kendall county; the Hon. C. W. UPTON, Judge, presiding. Opinion filed February 9, 1883.

The relators filed their petition for a mandamus against the Board of Supervisors of Kendall county to the January term, 1882, of the circuit court, averring that they had, at the September meeting of said board, 1881, presented a petition to the county board in which it was stated that a bridge was needed across Fox river, on the highway leading from Yorkville to Bristol, and that the cost thereof would be about $12,000, that the same would be an unreasonable burden upon the town, etc., and asking for an appropriation of $6,000 to aid the town in building said bridge. That such petition was denied, and at the December meeting, 1881, of said board of supervisors, the relators presented another petition in which it was stated that they had found, upon further examination, that it would cost $20,000 to build such bridge, their former estimate being too low, and such cost would be an unreasonable burden upon the town; that they were then engaged in building such bridge, and asking for a committee to assist them in supervising the same. That an election had been held in said town in due form of law, under Sec. 111 of the Road and Bridge Act of 1879, to borrow money with which to build said bridge, and that they have on hand funds by virtue of said proceedings sufficient to pay one half of the expense of building said bridge, and that the cost of the same would be more than could be raised by taxation in one year, etc.

Relators aver that the facts stated in the last mentioned petition to the county board are true in substance and in fact, and insist that they are within the provisions of Sec. 110 of the act of 1879, entitling them to county aid in completing such bridge.

The defendant answered denying all the material allegations in the petition, and avers that the pretended election, under which the money was raised by the town, was not held in pursuance of law, and denies that the majority of the electors voted to borrow the money as alleged, and denies that the relators had on hand sufficient funds to pay one half of the expense of building the bridge; and further avers, that the relators had undertaken to build said bridge at the expense of the town, and had let the contract for the completion of it, and the greater portion of the work under the contract had been completed. A demurrer was interposed to this answer and sustained pro forma by the court, and overruling a motion by the defendant for leave to amend the answer, the court awarded a peremptory mandamus against the county board, and it brings the record here by appeal.

Mr. A. J. HOPKINS and Mr. N. J. ALDRICH, for appellant; cited The People v. Holden, 82 Ill. 93; Nispel v. Laparle, 74 Ill. 306; The People v. Supervisors, 47 Ill. 256; Arenz v. Weir, 89 Ill. 258.

Upon the argument of a demurrer the court will, notwithstanding the defect of the pleading demurred to, give judgment against the party whose pleading was first defective in substance: Chitty on Pleading, 16th Am. Ed. 701; Puterbaugh Com. Law Practice, 267; Cook v. Graham, 3 Cranch, 229.

Petition for mandamus under present practice stands for the declaration, and all averments must be made with certainty: The People v. Glann, 70 Ill. 232; The People v. Davis, 93 Ill. 133; Stephen on Pleading, 133; High on Extraordinary Legal Remedies, §§ 449, 450; State v. Everett, 52 Mo. 89; The People v. Village of Crotty, 93 Ill. 180.

Appellant had a right to amend its answer: Springfield v. Com'rs, 10 Pickering, 58; Com'rs v. The People, 38 Ill. 350; Drake v. Drake, 83 Ill. 526; Empire Fire Ins. Co. v. Real Estate Trust Co. 1 Bradwell, 391; State v. School Com'rs, 9 Wis. 200; East St. L. v. Trustees, 6 Bradwell, 138.

A portion of the citizens of a county at an election, confined to them and from which the other citizens are excluded, can not impose a debt upon the county: Madison Co. v. The People, 58 Ill. 463; Marshall v. Silliman, 61 Ill. 224; Livingston Co. v. Weider, 64 Ill. 427; Lovingston v. Wider, 53 Ill. 302; The People v. Canty, 55 Ill. 33; Harward v. St. Clair Drain Co. 51 Ill. 131; The People v. Mayor, 51 Ill. 58.

Mr. EUGENE CANFIELD and Mr. R. P. GOODWIN, for appellee; cited Laws of 1879, p. 281.

As to geographical features, that the court will take judicial notice of: U. S. v. LaVengence, 3 Dall. 297; Peyroux v. Howard, 7 Pet. 342; Trenier v. Steward, 55 Ala. 458; McDonald v. R. R. Company, 34 N. Y. 397; Montgomery v. Plank Road, 31 Ala. 76; Harris v. O'Loughlin, 5 Irish Eq. R. 514; Whyte v. Rose, 4 P. &. D. 199; Deybel's case, 4 B. & A. 242; R. v. Isle of Ely, 15 Q. B. 827; R. v. Maurice, 16 Q. B. 908; Lyell v. Lapeer, 6 McLean, 446; U. S. v. Johnson, 2 Sawyer, 482; Gooding v. Appleton, 22 Me. 453; Ham v. Ham, 39 Me. 363; Keyser v. Coe, 37 Conn. 597; Winnipiseogee Lake Co. v. Young, 40 N. H. 420; State v. Powers, 25 Conn. 48; Com'rs v. Spitler, 13 Ind. 230; Buckinghouse v. Gregg, 19 Ind. 401; Buchanan v. Whitham, 36 Ind. 257; Hinckley v. Beckwith, 23 Wis. 328; Wright v. Hawkins, 28 Tex. 452; Brown v. Elms, 10 Humph. 135; King v. Kent, 29 Ala. 542; The People v. Robinson, 17 Cal. 363; Martin v. Martin, 51 Me. 366; State v. Tootte, 2 Harring, 541; Ind. R. R. Co. v. Case, 15 Ind. 42; Harding v. Strong, 42 Ill. 148; Price v. Page, 24 Mo. 65; Seighert v. Stiles, 39 Wis. 533; Cash v. Clark Co. 7 Ind. 227; Mossman v. Forrest, 27 Ind. 233; Cummings v. Stone, 13 Mich. 70; Tewksberry v. Schulenberg, 41 Wis. 584.

A township or county that neglects its duty in regard to highways may be compelled by the interference of the State and on State account to perform such duty: Cooley on Taxation, 94, 114, 214, 524, 478; Harwich v. Com'rs, 13 Pick. 60; Hingham & Quincy Co. v. Norfolk Co. 6 Allen, 353; Salem v. Essex Co. 100 Mass. 282; Commonwealth v. Newburyport, 103 Mass. 129; Waterville v. Kennebec Co. 59 Me. 80; Shaw v. Dennis, 5 Gilm. 405; Cambridge v. Lexington, 17 Pick. 222; Att'y Gen. v. Cambridge, 16 Gray, 247.

That section 110 is not unconstitutional: Cooley on Constitutional Limitations, 207, 230, 233, 283; Fox v. Kendall, 97 Ill. 72; Williams v. Town of Roberts, 88 Ill. 11; Sangamon Co. v. Springfield, 63 Ill. 66; The People v. Power, 20 Ill. 187; Harris v. Whiteside Co., Chicago Legal News, p. 93, Nov. 25, 1882; Logan Co. v. Lincoln, 81 Ill. 156.

PILLSBURY, P. J.

It is urged in support of the demurrer that all the facts out of which arises the duty on the part of the county board to make the appropriation asked, having been determined by the relators as averred in the petition, the existence of such facts can not be controverted by the county board.

It may be conceded that as to those matters relating to roads and bridges which are by the statute placed under the exclusive control and jurisdiction of the highway commissioners by the statute, their findings may be said to establish the existence of the fact as they have determined it to be.

Whether a bridge is necessary at a given point is a question of this character, as it is made so by the express provisions of the statute, and their determination that the construction of it would be an unreasonable burden upon the town, would, under the...