{ "id": 3448906, "name": "BURNIDGE BROTHERS ALMORA HEIGHTS, INC., Plaintiff-Appellant, v. CARLTON WIESE, Plato Township Highway Commissioner, et al., Defendants-Appellees", "name_abbreviation": "Burnidge Bros. Almora Heights, Inc. v. Wiese", "decision_date": "1986-04-03", "docket_number": "No. 2\u201485\u20140187", "first_page": "486", "last_page": "497", "citations": [ { "type": "official", "cite": "142 Ill. App. 3d 486" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "104 Ill. App. 3d 852", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5478337 ], "weight": 2, "pin_cites": [ { "page": "856" }, { "page": "858" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/104/0852-01" ] }, { "cite": "130 Ill. App. 3d 87", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 2841867 ], "year": 1955, "pin_cites": [ { "page": "433" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/3/0429-01" ] }, { "cite": "114 Ill. App. 3d 137", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3592542 ], "weight": 4, "pin_cites": [ { "page": "139" }, { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/114/0137-01" ] }, { "cite": "415 Ill. 557", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2682317 ], "opinion_index": 0, "case_paths": [ "/ill/415/0557-01" ] }, { "cite": "129 Ill. App. 3d 1061", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3490688 ], "weight": 2, "year": 1953, "opinion_index": 0, "case_paths": [ "/ill-app-3d/129/1061-01" ] }, { "cite": "30 Ill. 2d 201", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2827260 ], "opinion_index": 0, "case_paths": [ "/ill-2d/30/0201-01" ] }, { "cite": "99 Ill. 2d 44", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3163130 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/ill-2d/99/0044-01" ] }, { "cite": "109 Ill. App. 3d 1071", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5450638 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/1071-01" ] }, { "cite": "101 Ill. 2d 355", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3160656 ], "opinion_index": 0, "case_paths": [ "/ill-2d/101/0355-01" ] }, { "cite": "112 Ill. App. 3d 777", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5431495 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/112/0777-01" ] }, { "cite": "109 Ill. App. 3d 719", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5453394 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0719-01" ] }, { "cite": "126 Ill. App. 3d 206", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3597960 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/0206-01" ] }, { "cite": "93 Ill. 2d 101", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3103148 ], "opinion_index": 0, "case_paths": [ "/ill-2d/93/0101-01" ] }, { "cite": "119 Ill. App. 3d 382", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3628261 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/119/0382-01" ] }, { "cite": "57 Ill. App. 3d 828", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3419034 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/57/0828-01" ] }, { "cite": "81 Ill. App. 3d 1020", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3231041 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/81/1020-01" ] }, { "cite": "45 Ill. App. 3d 947", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2897367 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/45/0947-01" ] }, { "cite": "117 Ill. App. 3d 933", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3482151 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/117/0933-01" ] }, { "cite": "55 Ill. App. 3d 695", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3408676 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/55/0695-01" ] }, { "cite": "91 Ill. App. 3d 17", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3149236 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/91/0017-01" ] }, { "cite": "115 Ill. App. 3d 746", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3556560 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/115/0746-01" ] } ], "analysis": { "cardinality": 1035, "char_count": 27981, "ocr_confidence": 0.741, "pagerank": { "raw": 1.3640998207335205e-07, "percentile": 0.6369066304637838 }, "sha256": "b081dff60584b8495e7f72bae133898bb231ac4dbcb08576c7497802598edfc1", "simhash": "1:bbb6d1de2a4fd0e0", "word_count": 4574 }, "last_updated": "2023-07-14T17:12:38.085084+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BURNIDGE BROTHERS ALMORA HEIGHTS, INC., Plaintiff-Appellant, v. CARLTON WIESE, Plato Township Highway Commissioner, et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE UNVERZAGT\ndelivered the opinion of the court:\nPlaintiff, a development corporation (developer), sought to compel the defendants, the Plato Township highway commissioner (commissioner), the Plato Township Road District (district), and the Plato Township Board (board) by petition for writ of mandamus in the circuit court of Kane County to provide street lights for its Plato Township subdivision known as Catatoga III. The court granted the defendants\u2019 cross-motion for summary judgment based on this court\u2019s decision in A. S. Schulman Electric Co. v. Village of Fox Lake (1983), 115 Ill. App. 3d 746, that even though a municipality may be otherwise empowered to enter into a contract to provide street lighting, the contract as executed will be void unless a specific appropriation for that purpose has been made. The court found that no specific appropriation for the street lights at issue was made.\nThe developer does not argue that there is a genuine issue or issues of material fact which would require that this court reverse and remand the cause for trial. It argues, however, that there is a duty which has vested in the office of the Plato Township highway commissioner, who is also an officer of Plato Township and the Plato Township Road District, to provide for lighting of the public roads in Catatoga III, and that mandamus may properly issue to compel performance of that duty. Defendants counter that the commissioner\u2019s discretion to provide for street lighting is neither bound by the action of his predecessor commissioner nor subject to writ of mandamus, nor is the board\u2019s discretion in the matter of the annual appropriation ordinance and tax levy bound by the recommendation of the commissioner nor subject to a writ of mandamus.\nThe pleadings, depositions, admissions and affidavits on file contain the following admitted facts, which are presented in summary fashion for purposes of this opinion.\nThe Plato Township Road District is comprised of a single township, Plato Township. At the time plaintiff\u2019s petition for mandamus was filed, Carlton Wiese was the Plato Township highway commissioner. By statute, the Plato Township highway commissioner is also an officer of Plato Township. (Ill. Rev. Stat. 1983, ch. 121, par. 6\u2014 112.) Wiese was preceded as commissioner by Frank Brizzolara and, before him, William Hulke. In the initial platting phase of Catatoga III, Hulke had some discussions with Logan Burnidge, developer\u2019s president, concerning street lighting for the subdivision. In 1979, Hulke resigned his position, and Frank Brizzolara was appointed highway commissioner. Hulke told Brizzolara that there were to be street lights in Catatoga III, and that it was up to Brizzolara to approve or disapprove them. Other than the town of Plato itself, Brizzolara did not know of any other subdivision in Plato Township that had street lights in the subdivision. Brizzolara accepted the roads and streets in Catatoga III into the Plato Township Road District.\nOn September 17, 1980, Brizzolara attended a meeting at the office of the county superintendent of highways at which he, Burnidge, and William Carter, the superintendent, were present. The superintendent required that one street light be placed at the intersection of the subdivision outlet and the county highway. An additional nine street lights were located on a plat map of the subdivision, the words \u201cstreet lights location approved\u201d were written on the plat, and Frank Brizzolara, Logan Burnidge and William Carter signed underneath the words. Later, Brizzolara also signed a \u201cSupplement to Rate 23 Contract\u201d which was dated March 11, 1981. The contract was -with Commonwealth Edison Company and covered the maintenance and energizing of the nine street lights. The contract detailed the cost per light per month; the approximate total annual cost for maintaining and energizing the lights was $1,000. The developer also contracted with Commonwealth Edison Company, agreeing to pay for the furnishing and installation of the lights and related equipment. Its check, dated March 23, 1981, for $6,973.42 was returned to it under cover letter from Commonwealth Edison dated December 2, 1982, due to its company policy that agreements are valid only for six months due to inflation. Commonwealth Edison\u2019s files did not contain the \u201cSupplement to Rate 23 Contract\u201d signed by Brizzolara, and it was not accepted by Commonwealth Edison. Brizzolara mailed it to Commonwealth Edison, but was not sure if this was before or after his term expired in April of 1981. After approving the light locations, and signing the \u201cSupplement to Rate 23 Contract,\u201d Brizzolara submitted his recommended budget to the township board. He said that the necessary funds to pay for the energizing of the lights by way of contract with Commonwealth Edison were \u2019\u2019buried\u201d in his proposal. Payments to Commonwealth Edison were to be made out of the general road fund of the Plato Township Road District. Brizzolara\u2019s proposed budget was not approved as presented. Kenny Bartals (phonetic) made up the budget that was approved at the town meeting. Brizzolara was aware at the time he signed the \u201cSupplement to Rate 23 Contract\u201d and at the time he prepared his proposed budget that the Plato Township Board of Trustees was opposed to street lights at public expense in Catatoga III subdivision.\nIn March 1981 Carlton Wiese was duly elected as highway commissioner of the Plato Township Road District, succeeding Frank Brizzolara in said office on April 27, 1981. Wiese indicated to Commonwealth Edison that Plato Township did not intend to enter into a \u201cSupplement to Rate 23 Contract\u201d to light the public roads in Catatoga III. At various times since September 1980, plaintiff requested and demanded of the defendants that they meet their commitment to provide for lighting of the roads in Catatoga III; defendants have refused and continue to refuse to provide for such lighting.\nAt the outset, we note that in determining whether judgment was correctly entered for the defendants as a matter of law, we are not limited to the precise reasons expressed by the trial court in entering its summary judgment. (Coomer v. Chicago & North Western Transportation Co. (1980), 91 Ill. App. 3d 17; Murphy v. Rochford (1977), 55 Ill. App. 3d 695.) We also observe that the sole function of a court reviewing a trial court\u2019s entry of summary judgment is to determine whether that court correctly ruled that no genuine issue of material fact had been raised, and if none was raised, whether judgment was correctly entered as a matter of law. (Fuller v. Justice (1983), 117 Ill. App. 3d 933.) Facts unrelated to the essential elements of the plaintiff\u2019s cause of action are immaterial, and regardless of how sharply controverted, their presence in the record will not warrant denial of a motion for summary judgment. (Mid States Vending Service, Inc. v. C.A.P., Inc. (1977), 45 Ill. App. 3d 947.) A reviewing court may reverse an order granting summary judgment if it is determined that a genuine issue of material fact does exist (Rubin v. City National Bank & Trust Co. (1980), 81 Ill. App. 3d 1020), and on appeal from summary judgment for defendants, facts must be reviewed in the light most favorable to the plaintiff. Montague v. School Board (1978), 57 Ill. App. 3d 828.\nMandamus is an extraordinary remedy to compel the performance of ministerial duties. (Nugent v. Miller (1983), 119 Ill. App. 3d 382.) A writ of mandamus is issued in the exercise of judicial discretion only in those cases where the plaintiff can demonstrate a clear right to this extraordinary relief. (Walter v. Board of Education (1982), 93 Ill. 2d 101.) The purpose of a mandamus proceeding is to enforce rights already lawfully vested, and rights cannot be acquired in such proceeding (Weiner v. Forest Preserve District (1984), 126 Ill. App. 3d 206); the relator seeking mandamus must show a clear legal right to have the action taken which he is demanding. (Elgin National Bank v. Rowcliff (1982), 109 Ill. App. 3d 719.) Mandamus is used only to compel a specific kind of behavior, i.e., compliance with a ministerial duty of an office, and it does not issue to compel action that is discretionary. (People v. Schyve (1983), 112 Ill. App. 3d 777, aff\u2019d (1984), 101 Ill. 2d 355.) Although mandamus has been used to compel the exercise of discretion which is vested in a public official (Gordon v. Department of Transportation (1982), 109 Ill. App. 3d 1071, aff'd (1983), 99 Ill. 2d 44; People ex rel. Abner v. Kinney (1964), 30 Ill. 2d 201), it may not be used to direct or alter the manner in which discretion is to be exercised. To do so would be to substitute a court\u2019s judgment and discretion for that vested in the public official, and that is not permitted. (Freeman v. Lane (1985), 129 Ill. App. 3d 1061; Ickes v. Board of Supervisors (1953), 415 Ill. 557.) Further, it has been held that the writ will not lie when the mandate depends upon the cooperation or approval of a third person who is not before the court. (Moser v. Highway Commissioner (1983), 114 Ill. App. 3d 137.) If the cooperation of the third person is a matter of duty, however, and the third person is a public officer, the law will presume that he will do his duty, and the writ will lie. 114 Ill. App. 3d 137, 139.\nPlaintiff contends the existence of defendants\u2019 duty to provide street lights in Catatoga III is two-fold: it is mandated by statute, and it arises out of plaintiff\u2019s reliance on the affirmative acts of commissioner Wiese\u2019s predecessors in office, Frank Brizzolara and William Hulke.\nThe statutes in question provide in pertinent part:\n\u201cThe highway commissioner of each road district shall perform the functions stated in Sections 6 \u2014 201.1 to 6 \u2014 201.18, inclusive.\u201d\n\u201cProvide for the lighting of any public road or portion thereof in his district when in his opinion it is necessary for the convenience or safety of the public.\u201d Ill. Rev. Stat. 1983, ch. 121, pars. 6-201, 6-201.12.\nOn its face, section 6 \u2014 201.12 contemplates the commissioner exercise discretion in providing lighting for public roads. It is undisputed that plaintiff has asked the defendants to provide lighting, and that defendants have refused. Although plaintiff in its reply brief appears to suggest that the refusal to provide lights does not amount to a determination that lighting in Catatoga III is not necessary for the convenience or safety of the public, it may reasonably be inferred from the foregoing undisputed fact that such is the case. Such an inference seems particularly reasonable, since plaintiff itself filed a motion for summary judgment, and since plaintiff has not sought to compel simply the exercise of the commissioner\u2019s discretion which, as noted above, is appropriately sought in an action for mandamus. (See Gordon v. Department of Transportation (1982), 109 Ill. App. 3d 1071, aff\u2019d (1983), 99 Ill. 2d 44.) Further, plaintiff\u2019s position is that the duty to provide lighting vested in the office of the Plato Township highway commissioner; that is, that the discretion once exercised by a commissioner as to this matter is binding on his successor, the current highway commissioner and, in turn, on the other defendants. Consequently, any determination Wiese may have made with regard to the necessity for the lights is immaterial to plaintiff\u2019s cause of action.\nPlaintiff\u2019s position here amounts to a refusal to accept the import of the events occurring subsequent to Brizzolara\u2019s determination that street lights were necessary in Catatoga III. Brizzolara signed the necessary Commonwealth Edison \u201cSupplement to Rate 23 Contract\u201d and included funds in his proposed budget for the lighting. The funds were not specified as being for this purpose; they were \"buried.\u201d The reason these funds were buried was because Brizzolara knew at the time he signed the contract that the board would not approve funds for this purpose if they appeared as a specific line item in the proposed budget. Brizzolara stated that except for the town of Plato proper, he did not know of any other subdivision in Plato Township that had street lights. In his deposition, William Carter, the county highway superintendent, stated the board had rather strong feelings on the matter of the street lights in Catatoga III, and that they were afraid they would get other street light requests from existing subdivisions elsewhere in the township.\nBrizzolara\u2019s budget was not approved as it was submitted by him to the board, and a budget drafted by someone else was ultimately approved by the board. It is undisputed that no specifically designated appropriations have been made to date for the funding of the cost of energizing street lights in Catatoga III. Although Brizzolara stated he mailed the signed contract back to Commonwealth Edison, R. A. Mentzer of Commonwealth Edison said its files did not contain Brizzolara\u2019s signed contract. Therefore, no contract was submitted by Commonwealth Edison to the township board for approval, nor did Commonwealth Edison formally accept the contract.\nBrizzolara\u2019s term as highway commissioner expired, and he was succeeded on April 27, 1981, by Carlton Wiese. Plaintiff cites no authority for its contention that once a commissioner makes a determination of need for street lighting, and the proposed budget including funds for same is rejected by the township board, that his successor is bound by that prior determination and must again pursue procedural channels to secure an appropriation for such street lighting from the township board. It is true, as plaintiff suggests, that the highway commissioner is both the office and the officer; he is an officer of the township, which is a separate and distinct municipal corporation with no power or authority over roads, and he is a quasi-public corporation having jurisdiction over township roads with the power to do those things necessary to perform the statutory duties enjoined upon it by law. (Mathew v. Town of Algonquin (1972), 3 Ill. App. 3d 429, 433; Roesch-Zeller, Inc. v. Hollembeak (1955), 5 Ill. App. 2d 94, 107; Euziere v. Highway Commissioner (1931), 346 Ill. 131.) However, as noted, the duty to provide street lighting is not mandatory; rather, the highway commissioner shall exercise the power to provide street lighting, \u201cwhen in his opinion [such lighting] is necessary for the convenience or safety of the public.\u201d (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 121, par. 6 \u2014 201.12.) The discretion exercised is an action of the office of highway commissioner; the action required is such as can be performed only by the incumbent of the office. The action of exercising the discretion to provide for street lighting in this case is not a personal one; it devolves upon each successor in office, and no person but one clothed at the time with official authority can perform the act. Cf. People ex rel. First National Bank v. Czaszewicz (1920), 295 Ill. 11, 13-14 (mandamus will not be awarded to compel an individual to do an official act after the expiration of his term of office where the action required is such as can be performed only by the incumbent of the office, but where the action is personal and does not devolve upon the successor in office, its performance may be compelled by mandamus).\nThe underlying rationale of Czaszewicz is applicable to the instant issue. In Czaszewicz, the plaintiff sought to accomplish by writ of mandamus the payment of public funds held by the former treasurer of the city of West Hammond into the municipal treasury. The treasurer contended mandamus could not be awarded to compel an individual to do an official act after the expiration of his term of office. The court determined, however, that the action which was sought to be compelled was personal to the treasurer, and that the writ would lie to compel him to pay over to his successor money retained by him for which, in his report to the city at the termination of his office, he had taken credit for a sum as having been paid out in satisfaction of certain special assessment bonds but which bonds, in fact, had been surreptitiously obtained by him and not paid.\nClearly, the official discretionary act at bar is not of the personal type found in Czaszewicz; rather, the duty to perform it is one which devolves upon each successor in office. Brizzolara could not at this time be compelled by mandamus to provide street lighting in Catatoga III because he presently is not clothed with \u201cofficial authority to perform the act.\u201d Likewise, Carlton Wiese, as the present highway commissioner, cannot be compelled by writ of mandamus to perform in the certain manner requested by plaintiff an official statutory act which is, on its face, to be performed in his own discretion. Freeman v. Lane (1985), 129 Ill. App. 3d 1061.\nPlaintiff argues in reply that the duty to provide lighting is in the office of the highway commissioner and not in the particular individuals \u201cwho may happen to hold that office,\u201d and cites in support Town of Scott v. Artman (1908), 237 Ill. 394. In Artman, the court noted the suit was against the defendants as commissioners of highways and that the duty to open the road in question in that case did not rest on particular persons but, rather, on the commissioners as a body, without regard to who the individual members of that body were. The Artman court, however, was not confronted with the exercise of a discretionary duty. The duty to provide lighting in the instant cause arises only after the exercise of the discretionary power which is vested in whoever is then presently clothed with the official authority to perform the act.\nAccordingly, we conclude the statutory duty sought to be compelled is discretionary, not ministerial, and may not be compelled by writ of mandamus.\nWe likewise reject plaintiff\u2019s contention that its reliance on the affirmative acts and representations of the commissioners gave rise to a duty in the defendants to provide street lights in Catatoga III by contracting with Commonwealth Edison.\nPlaintiff claims its good faith reliance on the representations of highway commissioners Hulke and Brizzolara that lights would be provided caused it to make that parallel representation, as well, in its advertising to its potential buyers in Catatoga III; that it entered into a related agreement with Commonwealth Edison for the provision of the lights and associated equipment; and incurred expense in securing easements for such lighting. Plaintiff contends it thus would be inequitable and unjust to permit the defendants now to retract what was previously done, and that the doctrine of estoppel should be applied in order to secure the mandamus relief requested. Plaintiff cites in support New-Mark Builders, Inc. v. City of Aurora (1967), 90 Ill. App. 2d 98, 102.\nIn New-Mark, plaintiff sought a writ of mandamus to compel the defendant to approve its request for the annexation of certain contiguous land. Although annexation is a legislative function resting within the discretion of the legislative branch of the government, the court there decided that the pleadings before it were sufficient to state a cause of action in estoppel against the city, and remanded the cause for trial on the merits. Although defendants\u2019 attempt to distinguish New-Mark, we believe the case does support plaintiff\u2019s contention that mandamus on the basis of estoppel may issue.\nIt has been held that a party claiming benefit of an estoppel must prove reasonable reliance on the acts or representations of the party sought to be estopped, without knowledge of or convenient means of learning the true facts. (National Ben Franklin Insurance Co. v. Davidovitch (1984), 123 Ill. App. 3d 88.) The affirmative action taken by the party to be estopped must be such that it would be unjust to permit the party to deny what it has done. (Budka v. Board of Public Safety Commissioners (1983), 120 Ill. App. 3d. 348.) Generally, a finding of equitable estoppel against a public body is not favored. (American National Bank & Trust Co. v. Village of Arlington Heights (1983), 115 Ill. App. 3d 342.) Further, when a governmental body is engaged in a matter of the exercise of its governmental functions, particularly those relating to public revenues, estoppel should only be invoked in extraordinary circumstances. (Haeflinger v. City of Wood Dale (1984), 129 Ill. App. 3d 674.) The affirmative acts which induce reliance by a party asserting estoppel must be the acts of the municipality itself, such as legislation by the city council, rather than merely the unauthorized act of a ministerial officer or a ministerial misinterpretation. (American National Bank & Trust Co. v. Village of Arlington Heights (1983), 115 Ill. App. 3d 342.) A person who deals with a governmental body takes the risk of having accurately ascertained that he who purports to act for it stays within the bounds of his authority and this is so even though the agent himself may have been unaware of the limitations on his authority. (Lake Shore Riding Academy, Inc. v. Daley (1976), 38 Ill. App. 3d 1000.) The asserted reliance must have resulted in prejudice to the party claiming estoppel (National Boulevard Bank v. Citizens Utilities Co. (1982), 107 Ill. App. 3d 992), and the conduct of the party seeking the benefit of the doctrine of estoppel may be scrutinized. Gary-Wheaton Bank v. Meyer (1984), 130 Ill. App. 3d 87.\nThe entities here were engaged in matters of the exercise of their governmental functions: each commissioner, in his discretion to determine whether street lighting was necessary in Catatoga III for the convenience and safety of the public (Ill. Rev. Stat. 1983, ch. 121, par. 6 \u2014 201.12); the township board, in its discretion to approve all or a portion of the tentative budget and appropriation ordinance for the district (Ill. Rev. Stat. 1983, ch. 121, par. 6 \u2014 501(b); ch. 85, par. 803). Accordingly, estoppel should be invoked only under extraordinary circumstances.\nWe do not believe the record shows such extraordinary circumstances existed here. Plaintiff\u2019s pleadings only minimally allege facts which would establish that it was prejudiced as a result of its reliance on Hulke and Brizzolara\u2019s promises that Plato Township would pay for the energizing and maintenance of the lights, or that it was induced to change its position as a result of such reliance. Defendants point out the sample of the Catatoga III advertising provided by plaintiff which included the street light feature was dated May 1980, well in advance of the September 1980 meeting at which Brizzolara approved the street lights. Although plaintiff argues that Hulke earlier had also made such representations, plaintiff\u2019s reliance on Hulke\u2019s representations would have been even less reasonable than its reliance on Brizzolara\u2019s, since there are no allegations that Hulke ever proceeded with any of the necessary procedural steps to secure such lighting. Plaintiff\u2019s reliance on Brizzolara\u2019s representations was similarly unreasonable. The record shows the amount of money needed for the energizing of the street lights was specifically known at the time Brizzolara submitted his tentative budget and appropriation ordinance to the township board, yet he \u201cburied\u201d the funds because he knew the town board would not approve the proposed expenditure. In this regard, we note that the Schulman decision upon which the trial court relied (A. S. Schulman Electric Co. v. Village of Fox Lake (1983), 115 Ill. App. 3d 746) appears to have been decided under section 8 \u2014 1\u20147 of the Illinois Municipal Code (Ill. Rev. Stat. 1983, ch. 24, par. 8 \u2014 1\u20147), which code specifically excludes townships (Ill. Rev. Stat. 1979, ch. 24, par. 1 \u2014 1\u20142(1)). However, this court, in Diversified Computer Services, Inc. v. Town of York (1982), 104 Ill. App. 3d 852, 856, noted the same considerations underlying the void-for-no-prior-appropriation rule as to contracts of public entities subject to the Illinois Municipal Code, had been applied to other governmental entities as well. Accordingly, this court determined:\n\u201cIn our view, the requirement of a prior appropriation imposed upon the township by the Illinois Municipal Budget Law (Ill. Rev. Stat. 1979, ch. 85, par. 803) is not simply a precatory bookkeeping procedure suggested by the legislature for guidance in fiscal matters, but, instead, is a condition precedent to the expenditure of town funds and therefore to the validity of the contract in issue. [Citations.].\u201d 104 Ill. App. 3d 852, 858.\nAlthough the validity of the contract is not the issue presented here, the necessity that a prior appropriation have been made before a contract between the township and Commonwealth Edison could be considered valid is clearly relevant to the issue of whether the plaintiff\u2019s reliance on the representations of Hulke and Brizzolara was reasonable. We do not believe it was, where the public hearing requirements and approval of the commissioners\u2019s tentative budget by the township board are both clearly matters of law and easily ascertainable by the plaintiff.\nPlaintiff\u2019s entry into the related work agreement with Commonwealth Edison seems in no way to have resulted in prejudice to it. There is no allegation that plaintiff would have contracted differently or with anyone else for the service as the result of its reliance on the commissioners\u2019 representations, and plaintiff\u2019s check for the amount of the work agreement was returned to it. The record additionally shows the check would have been returned to the plaintiff sooner except for plaintiff\u2019s \u201creluctance\u201d to have it returned while its \u201cdifferences\u201d with the township were unsettled. We note here additionally that Commonwealth Edison was not a party to this suit, and it is undisputed that it did not accept the \u201cSupplement to Rate 23 Contract\u201d signed by Brizzolara. As noted previously, a cause of action for a writ of mandamus will not lie when the mandate depends upon the cooperation or approval of a third person who is not before the court. (Moser v. Highway Commissioner (1983), 114 Ill. App. 3d 137.) Although the township board was made a party to the suit, the tentative budget was subject to its discretion. (Ill. Rev. Stat. 1983, ch. 121, par. 6 \u2014 501(b); ch. 85, par. 803; Moser v. Highway Commissioner (1983), 114 Ill. App. 3d 137, 139.) Moreover, the record suggests the board\u2019s rejection of the tentative budget was not arbitrary. The board was concerned that its provision for lights in Catatoga III, when no other subdivision outside of the town of Plato proper had such lights, would create a demand for street lights from existing subdivisions.\nEven assuming, arguendo, that a writ of mandamus would lie to compel the township board to approve the energizing of the lights\u2014 thereby limiting the extent of its discretion, as plaintiff suggests, to only the amount of the proposed expenditure rather than the expenditure itself \u2014 the court\u2019s ability to so order necessarily means that it would have likewise ordered the commissioner to exercise his discretion in the certain manner requested by plaintiff which, as discussed above, it may not do.\nIn sum, we do not find the facts presented in the record here would as a matter of law have supported a judgment for the plaintiff for the mandamus relief requested on either theory advanced. Accordingly, we affirm the judgment of the circuit court of Kane County granting summary judgment in favor of the defendants.\nJudgment affirmed.\nHOPE and STROUSE, JJ., concur.", "type": "majority", "author": "JUSTICE UNVERZAGT" } ], "attorneys": [ "Pamela K. Jensen and Wiley W. Edmondson, both of Brady, McQueen, Martin, Collins & Jensen, of Elgin, for appellant.", "Mark T. Schuster, of Strom, Schuster & McCarty, of Elgin, for appellees." ], "corrections": "", "head_matter": "BURNIDGE BROTHERS ALMORA HEIGHTS, INC., Plaintiff-Appellant, v. CARLTON WIESE, Plato Township Highway Commissioner, et al., Defendants-Appellees.\nSecond District\nNo. 2\u201485\u20140187\nOpinion filed April 3, 1986.\nPamela K. Jensen and Wiley W. Edmondson, both of Brady, McQueen, Martin, Collins & Jensen, of Elgin, for appellant.\nMark T. Schuster, of Strom, Schuster & McCarty, of Elgin, for appellees." }, "file_name": "0486-01", "first_page_order": 508, "last_page_order": 519 }