Town of Scott v. Artman

• Decision Date: 15 December 1908
• Citation: 237 Ill. 394,86 N.E. 595
• Court: Illinois Supreme Court
• Parties: TOWN OF SCOTT et al. v. ARTMAN et al.

237 Ill. 394

86 N.E. 595

TOWN OF SCOTT et al.

v.ARTMAN et al.

Supreme Court of Illinois.

Dec. 15, 1908.

Appeal from Appellate Court, Third District, on Appeal from Circuit Court, Piatt County; W. G. Cochran, Judge.

Mandamus by the Town of Scott, by its commissioners of highways and others, against Hiram Artman and others. From a decree for complainants, affirmed by the Appellate Court, defendants appeal. Affirmed.

Herrick & Herrick and Reed & Reed, for appellants.

Ray & Dobbins, for appellees.

CARTWRIGHT, C. J.

On September 17, 1906, the commissioners of highways of the towns of Scott and Mahomet, in Champaign county, and of the town of Sangamon, in Piatt county, acting as a joint board under the road and bridge law, made and signed a final order laying out and establishing a public highway along the boundary line between said towns, which was also the county line; all of the commissioners being present and signing the order. The order recited at length the petition for the road and the successive steps for laying out the same, and it was filed within five days, together with the report of the surveyor, petition, releases, agreements, or assessments in respect to damages, in accordance with the statute. On September 29, 1906, said joint board of highway commissioners of the three towns at a meeting divided the expense and damage accruing from the establishment of the road, allotting one-third to each town. This agreement was reduced to writing and signed by all the commissioners, except the appellant Hiram Autman, one of the commissioners of the town of Sangamon, who refused to sign it. The commissioners also entered into an agreement allotting to each of the towns the part of the road which each should open and keep in repair, and this agreement was also signed by all the commissioners except Artman. On October 20, 1906, at a meeting of the joint board, when all were present, a resolution was adopted that each town should issue orders, payable to the landowners, to the amount of their portion of the damages assessed and agreed on, payable out of the tax to be levied and collected for that purpose, when collected. Orders were drawn, which the commissioners of the towns of Scott and Mahomet, and J. C. Furnish, one of the commissioners of the town of Sangamon, were ready and willing to sign, but Artman and A. J. Pike, the other commissioners of the town of Sangamon, refused to join in drawing orders or to take any steps toward laying out the highway or paying any part of the damages. On January 30, 1907, the commissioners of highways of the towns of Scott and Mahomet, and J. C. Furnish, one of the commissioners of the town of Sangamon, filed their petition against Artman and Pike as commissioners of highways of the town of Sangamon, praying for a writ of mandamus commanding them to join with J. C. Furnish, the other commissioner, in paying the portion of that town of the damages out of any funds on hand applicable to that purpose, and, in case there were not sufficient funds on hand, then to draw orders on their treasurer, payable only out of the tax to be levied for such highway when the moneys should be collected and received, and to proceed with all lawful diligence to do all acts and things necessary and lawful to be done for the opening of the road. Furnish afterward withdrew from the suit, and his name was stricken out of the petition. The defendants Artman and Pike first demurred to the petition as amended, and, their demurrer being overruled, they answered, denying every allegation of the petition and each step set forth in the petition and the order signed by them for the laying out of the highway, and admitting that they refused to draw any order or participate in opening the highway. Pike afterward filed a plea setting up that his term of office had expired, and that the appellant Harry Clark was his successor. Clark was made a party and filed an answer, which was stricken from the files. The petitioners filed a replication to the answer, which was demurred to, and the petitioners moved to carry the demurrer back to all of the answer except certain paragraphs. The court sustained the motion, carried the demurrer back, and sustained it to the portions of the answer referred to in the motion. The petitioners demurred to the plea of Pike, and the court sustained the demurrer and Pike stood by his plea. There was a trial before the court without a jury, resulting in a finding of the issues in favor of the petitioners. The court awarded a peremptory writ of mandamus against Artman and Clark, commanding them to join with Furnish in paying one-third of the damages for the laying out of the road if they had the funds on hand for that purpose, and, if they had not sufficient funds on hand, that they draw orders on their treasurer payable out of the tax to be levied for the road, and that they proceed to do all things necessary and lawful for the speedy opening of the road. The defendants as commissioners of highways, prayed for and were allowed an appeal to the Appellate Court for the Third District, and that court affirmed the judgment. This further appeal was prosecuted from the judgment of the Appellate Court.

The order laying out the road was signed by all the commissioners of the three towns, and the resolutions dividing the expense and damage equally between the three towns and allotting the parts of the road which each town should open and keep in repair were signed by all commissioners except ...