The County of St. Clair v. People Ex Rel. Philip Keller.
| Decision Date | 30 June 1877 |
| Citation | 85 Ill. 396,1877 WL 9570 |
| Parties | THE COUNTY OF ST. CLAIRv.THE PEOPLE ex rel. Philip Keller. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of St. Clair county; the Hon. WILLIAM H. SNYDER, Judge, presiding. Mr. CHARLES P. KNISPEL, for the appellant.
Messrs. WILDERMAN & HAMILL, for the appellee.
This was a petition for a writ of mandamus, filed by the People of the State, on the relation of Philip Keller, against the board of commissioners of St. Clair county, to compel them to erect a bridge over Kaskaskia river, at the town of New Athens, in that county.
It is alleged, that the road from Golconda, by the way of Pinckneyville to Belleville, crosses the river at that place; that it is a State road; that the river at that point is 225 feet wide; that the increasing population and business of that vicinity render it necessary to travel across the river at that place; and that for the better enjoyment of their rights by the people, the board of commissioners of the county should construct a free public bridge across the river at that place, to be paid for by the levy of a tax for that purpose; that a bridge costing $10,000 would answer the necessities of public travel; that whilst the board of commissioners have ample power to do so, they refuse to construct the same.
An amended petition was filed, by which it was alleged, that the only mode of crossing the river, at or near that place, was by a private ferry licensed by an act of the General Assembly, the unexpired term of which is thirty years; that the ferry had been out of repair, and the board of commissioners had entered into an agreement with the owner of the ferry to pay him $75 dollars a month to put the ferry in repair, and to pay him for running the same, as the consideration for him to run the ferry regularly, and that he would comply with all the requirements of the law granting him the privilege, as well as all other laws relating to ferries; that if the board should cease to pay that sum the owner would cease to run the ferry, and relator and other citizens would thus be deprived of all means of crossing the river. It is charged that the donation made by the board is unauthorized, illegal and void. To this petition respondents filed a general demurrer, which was overruled by the court, and a peremptory writ was ordered to issue. The county appeals.
The rule is well and uniformly established, that a relator must show a clear right before relief will be granted by the court in a proceeding of this character. If the right be doubtful or uncertain the court will not interpose. Another rule is equally well established, that where the performance of a duty by a public officer is discretionary and depends upon the exercise of his judgment as to its necessity or propriety, the court will not interpose to determine how or when he shall exercise the power, but will leave him in the free exercise of his discretion, to act or not as he shall deem proper. These are elementary rules, that have been uniformly applied by courts in this character of proceedings. Now, is the right clear, and is it the duty of the board of supervisors to construct a bridge as claimed, without the exercise of any discretion?
The county of St. Clair is not under township organization, but has a board of commissioners who transact their business. In counties thus governed, section 142 of the chapter entitled “Roads and Bridges,” requires the county commissioners to cause the road supervisors through whose district a new road passes, to be notified of its location, and it is made the duty of the supervisors to open and keep the same in repair; but if the labor is not sufficient for the purpose, the county commissioners shall cause the same to be opened at the expense of the county, whenever, in their opinion, the funds of the county will justify the expense. Section 159, of the same act, imposes the duty on the road supervisors of keeping the roads in their several districts in good repair, and to cause bridges and causeways to be made wherever they shall be necessary, and to keep them in repair. Section 160 imposes as a duty upon supervisors, the removal of obstructions from the highways in their several districts; “and when any bridge or causeway shall be destroyed or become impassable or dangerous to travelers, it shall be the duty of the supervisor to cause such obstruction to be removed, and to have such bridges or causeways rebuilt or repaired.” But if the means at his disposal shall be insufficient for the purpose, in counties electing to keep up their roads by taxation, and the cost of repairs shall exceed ten dollars, the supervisor shall report the same to one or more of the county commissioners, who shall immediately cause such obstruction to be removed, or such bridge or causeway to be rebuilt or repaired, etc.
Section 179 provides, that “all power, jurisdiction and control is hereby given to the county courts of the several counties, of and concerning State roads located directly by the State, and all other roads, and the same shall be opened, improved and kept in repair as roads in the counties, subject to alteration, change or relocation, as hereinbefore pointed out.” Section 180 confers the supervision and control of roads and public highways upon the county courts, in...
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