Winne v. Hess
| Decision Date | 21 December 1898 |
| Citation | 177 Ill. 268,52 N.E. 377 |
| Parties | WINNE et al. v. PEOPLE ex rel. HESS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to circuit court, Dekalb county; George W. Brown, Judge.
Petition for mandamus by the people on relation of Henry F. Hess against the board of supervisors of Dekalb county to compel the latter to divide the town of Somonauk, and create a new town, composed of the territory therein described. There was an order granting a peremptory writ, and Charles Winne and I. M. Hay, supervisors, bring writ of error. Dismissed.
N. J. Aldrich and Theodore Worcester, for plaintiffs in error.
Carnes & Dunton and Alschuler & Murphy, for defendant in error.
A petition for mandamus was filed in the circuit court of Dekalb county to compel the board of supervisors of that county to grant the prayer of a petition for the division of the town of Somonauk, in said county, and the creation of a new town, composed of territory therein described, and comprising the west part of the township. The board interposed a demurrer to the petition, and, the demurrer being overruled, elected to stand by it, and the court granted the peremptory writ. A motion has been made to dismiss the writ of error.
It appears from the record that the town of Somonauk was organized as such under the general township organization law, and included a congressional township containing 36 sections of land. The petition presented to the board of supervisors asked for the creation of a new town by taking all that portion of the township lying west of a line drawn north and south through the center of sections 3, 10, 15, 22, 27, and 34, leaving 15 square miles in the original town, and appropriating about 21 square miles to the new town. The board refused to grant the prayer and create the new town, and the peremptory writ awarded by the circuit court ordered them to proceed to grant the prayer of such petition, and create such new town. It thus appears that the town of Somonauk, which the petition for mandamus sought to deprive of the greater part of its territory, was a public, quasi municipal corporation of the general class created by the legislature as minor local subdivisions of the state for the purpose of regulating and administering the local affairs of government within its territory. It was authorized by grant of the legislature to exercise the public franchises of such corporation over the entire congressional township. The right to exercise such powers and to be such a corporation is in itself a franchise, and, while the existence of the entire corporate franchise or right to be a corporation is not involved in this suit in the sense that the original town is deprived of all existence, yet the right to exercise the franchise over more than one-half the original territory is directly involved. The effect of the judgment awarding the peremptory writ of mandamus was to create a new town within the territory of the original town, and to deprive the town of Somonauk of the right to exercise its franchises, powers, and privileges within the territory ordered to be taken from it. In Railroad Co. v. Dunbar, 95 Ill. 571, it was decided that the franchise of the railroad company was involved in a bill in chancery which did not question the existence of the franchise, but sought to enjoin the corporation from exercising it within certain...
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