#### Board of Supervisors v. The People ex rel., etc.

• 1. Board of Supervisors—Naming New Towns.—Section 59, Ch. 34, R. S., entitled “ Counties,” only requires the board of supervisors to refrain from, naming a new town, created by it, until the proposed name has been filed with the auditor of public accounts and his certificate thereof obtained.

2. New Towns—Notice of Petition.—In creating new towns under the statute (Chapter 34, R. S.) .the board of supervisors must give notice that the petition for the new town has been filed,' and when it will be acted upon, in order that the board may act upon the merits of the petition; and after it has so acted and concluded to create the new town, and to give it a name, it is necessary to file the name proposed in the . auditor’s office.

Mandamus.—Hearing in the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Hearing and judgment for relators on demurrer to petition. ' Appeal by respondents.

Heard in this court at the May term, 1898.

Affirmed.

Opinion filed October 5, 1898.

S. G. Wilson, state’s attorney, G. T. Buckingham and Edwin Winter, attorneys for appellant.

Isaac A. Love and William R. Jewell, Jr., attorneys for appellee.

Mr. Justice Burroughs

delivered the opinion of the court.

The appellee commenced, in the Circuit Cqurt of Vermilion County, mandamus proceedings against the appellant. The original petition for the writ was-, demurred to *322and the demurrer sustained; thereupon the appellee by leave of court filed an amended petition, setting up that on July 12, 1897, there was filed with the county clerk of the county of Vermilion and State of Illinois, a 'petition, a copy of which was attached, made a part hereof and marked “ Exhibit A,” which was signed by the relator and 187 others, all voters of and residents in the following described territory, to wit (then describing by metes and bounds 30-| square miles of territory constituting parts of the towns of Vance, Gatlin, Sid well and Carroll in said county); that the per- . sons signing said petition constituted more than three-fourths of the voters residing in the territory above described on July 12, 1897, and the number of voters then residing in said territory who did not sign the said petition, were eighteen, and no more; and that the total number of voters in said territory then was 206, and no more; all of which was shown in said petition to said board by the affidavits of good and reliable citizens. It ivas also stated that in and by said petition the said board of supervisors were asked to create a new town out of said described territory for the convenience of the inhabitants residing therein; that after such new town shall be created out of said described territory, the said towns of Vance, Gatlin, Sidwell and Carroll will each still contain more than ten square miles of land; that after the said petition had been so filed and presented to said board, the said petitioners asked that the said board give notice of the presenting of said petition, and of the date of its final hearing, as is required by the provisions of Sec. 26, Chap. 139, Hurd’s Ill." Stat., but that said board refused so to do, contrary to the wishes of said petitioners and over their express objections; that until the said board of supervisors shall give said notices aforesaid, no further steps can be taken in order to create the said new town, according to the prayer of the said petitioners. The" amended petition contains the other usual averments in a petition for a writ of mandamus, and prays such writ may issue directed to the appellant, commanding " it forthwith to give notice of the presenting of said peti*323tion, and when it shall be considered, as required by said section of said chapter of our statutes, and for such further ©rder as may be required.

The “ Exhibit A ” attached to this amended petition contains a full, formal petition, as described in the amended petition for the writ, and in every particular conforming to the requirements of such a petition as provided by said Sec. 26, Chap. 139, Hurd’s Rev. Ill. Stat. To this amended petition the appellant interposed a demurrer which the Circuit Court overruled; the appellant elected to stand by the demurrer and the court awarded the peremptory writ of mandamus as prayed for in the amended petition. The appellant brings the case to this court and insists the judgment of the Circuit Court should be reversed, (1) because the amended petition fails to show a demand upon the appellant to give the desired notice; (2) the amended petition failed to show the name for the proposed new town had been filed in the office of the state auditor and his certificate obtained, as is provided by Sec. 60, Chap. 34, S. & C. Ill. Rev. Stat.; (3) the amended petition did not state that the several towns from which the proposed new town is to be taken will each have left at least ten square miles of territory.

An inspection of the amended petition shows that it does contain averments setting up the very demand which the appellant claims it does not; also, it contains an express averment that the several towns, out of which territory is sought to be taken for the new town, will each have remaining more than ten square miles; and, as to the other contention about the name of the proposed new town, we are satisfied that our statute only requires the board of supervisors to refrain from naming a new town created by it, until the proposed name has been filed with the auditor of public accounts and his certificate obtained as provided by Sec. 59, Chap. 34, Hurd’s Ill. Stat. In this proceeding the appellee only sought and the "Circuit Court only adjudged that the appellant give notice that the petition for the new town was filed and when it would be acted upon as required *324by Sec. 26, Chap. 139, Hurd’s Ill. Stat. This notice was necessary to be given in order that the appellant might act upon the merits of the petition for the creation of the new town, and after it has so acted and concluded to create a new town as petitioned for, and concludes to give it a name, before giving it such name it will be necessary for it to act under Sec. 59, Chap. 34, Hurd’s Ill. Stat.

Finding the judgment of the Circuit Court appealed from in this case is in accordance with the law arising out of the facts well pleaded in the amended petition, which were admitted by the demurrer thereto, we affirm its judgment. Judgment affirmed.