{ "id": 3104912, "name": "Commissioners of Highways of the Town of Goshen v. William A. Jackson", "name_abbreviation": "Commissioners of Highways v. Jackson", "decision_date": "1897-01-19", "docket_number": "", "first_page": "17", "last_page": "25", "citations": [ { "type": "official", "cite": "165 Ill. 17" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "61 Ill. App. 381", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5163322 ], "opinion_index": -1, "case_paths": [ "/ill-app/61/0381-01" ] }, { "cite": "80 Ill. 482", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2682965 ], "opinion_index": 0, "case_paths": [ "/ill/80/0482-01" ] }, { "cite": "99 Ill. 174", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "87 Ill. 385", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5340642 ], "opinion_index": 0, "case_paths": [ "/ill/87/0385-01" ] }, { "cite": "84 Ill. 626", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2652149 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/84/0626-01" ] }, { "cite": "114 Ill. 262", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2870109 ], "opinion_index": 0, "case_paths": [ "/ill/114/0262-01" ] }, { "cite": "80 Ill. 587", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2681366 ], "opinion_index": 0, "case_paths": [ "/ill/80/0587-01" ] }, { "cite": "127 Ill. 613", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5411431 ], "opinion_index": 0, "case_paths": [ "/ill/127/0613-01" ] }, { "cite": "116 Ill. 305", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2884331 ], "opinion_index": 0, "case_paths": [ "/ill/116/0305-01" ] }, { "cite": "127 Ill. 22", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5411261 ], "opinion_index": 0, "case_paths": [ "/ill/127/0022-01" ] }, { "cite": "102 Ill. 371", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2812691 ], "opinion_index": 0, "case_paths": [ "/ill/102/0371-01" ] }, { "cite": "58 Ill. 21", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5235281 ], "opinion_index": 0, "case_paths": [ "/ill/58/0021-01" ] }, { "cite": "17 Ill. 161", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2592978 ], "opinion_index": 0, "case_paths": [ "/ill/17/0161-01" ] } ], "analysis": { "cardinality": 685, "char_count": 17409, "ocr_confidence": 0.594, "pagerank": { "raw": 2.5041179671375224e-07, "percentile": 0.8098439329860544 }, "sha256": "a51dafcfb60b23f54345e2dd4910443bdd8c311d46f0eab35bfb0f7aa378f52f", "simhash": "1:ada3567c5cd83769", "word_count": 3079 }, "last_updated": "2023-07-14T21:27:20.766229+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Commissioners of Highways of the Town of Goshen v. William A. Jackson." ], "opinions": [ { "text": "Mr. Justice Carter\ndelivered the opinion of the court:\nThe relator, William A. Jackson, and others, presented their petition to the highway commissioners of the town of Goshen for laying out a new road. The commissioners refused to grant the prayer of the petitioners, and Jackson appealed from their decision to three supervisors of the county. The supervisors granted the petition, had the damages assessed, and ordered the road laid out by their final order, filed March 16, 1894. At their next semi-annual meeting, on the first Tuesday in September, 1894, the commissioners failed to levy any tax for the damages awarded for laying out this road, and in December, 1894, a written demand was served on them, requiring them \u201cto proceed with all lawful diligence to open said road for public travel, and to levy all necessary taxes or issue bonds to pay the damages assessed to land owners by reason of laying out said road, and to do all acts and things necessary and lawful to be done for the speedy opening of such road.\u201d To this demand the commissioners paid no attention, and the relator, Jackson, filed his petition for mandamus in the Stark circuit court on December 18, 1894, to compel them to open and work said road and to levy necessary and lawful taxes for the payment of damages to land owners. The court awarded the writ, commanding said commissioners \u201cto proceed with all lawful diligence to open and work such road for public travel, and levy all necessary and lawful taxes to pay damages to land owners, and to do all acts and things necessary and lawful to be done for the speedy opening of said road to public travel.\u201d From the judgment of the circuit court an appeal was taken to the Appellate Court for the Second District, which affirmed the decision of the lower court, and from this judgment of affirmance a further appeal was prosecuted to this court.\nBy stipulation of the parti\u00e9s it was conceded that the allegations of fact in the petition and answer were true, and that the cause should be determined upon the questions of the sufficiency of the demand made upon the commissioners, the jurisdiction of the police magistrate before whom the damages were assessed, the legality of the final meeting of the supervisors on appeal, which was held outside of the town of Goshen, and whether a tax could legally be levied to pay damages while the town was indebted to the constitutional limit.\nFirst\u2014The petition, for an appeal was filed with, and the proceedings for the assessment of damages by a jury were had before, a police magistrate of the village of Toulon, which is the county seat of Stark county, and it was contended by the appellants that because the statute provided that such proceedings shall be taken before \u201csome justice of the peace of the county,\u201d (Laws of 1883, sec. 41, p. 148,) a police magistrate had no jurisdiction. This contention is without merit. In the statute (Rev. Stat. 1874, chap. 24, art. 11, sec. 15,) provision is made for the election of police magistrates in villages, who shall \u201chave the same jurisdiction as other justices of the peace;\u201d and section 21, article 6, of the constitution, provides that \u201cthe jurisdiction of justices of the peace and police magistrates shall be uniform.\u201d This court has held in Welsh's case, 17 Ill. 161, that calling officers having the powers of justices of the peace, police magistrates, does not render them any less justices of the peace. (Herkelrath v. Stookey, 58 Ill. 21.) And in Brown v. Jerome, 102 Ill. 371, it was held that the constitution of 1870 \u201cdid not deprive them of any powers possessed generally by justices of the peace.\u201d\nSecond\u2014The first meeting of the supervisors was held in the town of Goshen, but was adjourned to the court house in Toulon, about forty rods from the Goshen line, \u201cbecause there was no convenient place for said hearing at the place appointed,\u201d but no objection was made to the legality of said adjourned meeting. The final meeting of the supervisors at which the road was ordered laid out was also held at the court house in Toulon, and the commissioners now contend that this meeting was illegal, and its proceedings null and void, because not held within the town of Goshen. The Road act of 1883 (sec. 60) provides that the justice of the peace \u201cshall fix in such summons upon a time and place, near the road'in question, when such appeal will be heard\u201d by the supervisors. It cannot be successfully contended that forty rods is an unreasonable distance from the road in question, and the statute does not require the place to be within the town, but \u201cnear the road in question.\u201d The Road act of 1879 (sec. 99) provides that the \u201csupervisors shall fix upon a time and place when said .appeal will be heard by them, which place shall be in the town where the road is located.\u201d (Laws of 1879, p. 279.) .The present statute omits the latter clause, and gives the justice of the peace the power to fix time and place. This omission was evidently done with a purpose, and we are not at liberty to re-insert it in the statute.\nBut it is contended that the supervisors, on appeal, have no greater powers than the highway commissioners, and that for the purposes of said appeal they act as town officers, and not as county officers. The commissioners are directed in section 33 of the act of 1883 to \u201cfix upon a time when and place where they will meet to examine the route of said road,\u201d and in section 47, to hold a meeting to finally determine the matter, without specifying anything as to the place of the meeting. In case damages are to be assessed, they are directed to present a certificate to \u201csome justice of the peace of the county,\u201d who shall specify \u201ca certain place\u201d for the trial, (sec. 41,) without specifying that the justice or the place must be of the town in which the road is located. There is nothing in these provisions requiring' action to be taken within the town, and even if it be conceded that the commissioners must meet in their own town, (on which we express no opinion,) it does not follow that the supervisors are thus restricted. The justice of the peace fixes their first meeting place, which shall be \u201cnear the road in question.\u201d Suppose the case was such that it could be finally settled at one meeting of the supervisors, as in the case of vacating a road, where the supervisors affirmed the decision of the commissioners, a meeting \u201cnear the road in question\u201d would unquestionably be sufficient. We do not see any good reason why, when more meetings than one are required, any subsequent meetings would not be legal if held \u201cnear the road in question.\u201d\nThird\u2014Was the demand made in apt time, and was there any demand necessary? Demand could not be made before breach of duty. Did any breach of duty occur, and if so, when? Section 15 of the act of 1883 provides: \u201cWhen damages have been agreed upon, allowed or awarded for laying out * * * roads, * * * the amounts of such damages, not to exceed for any one year twenty cents on each \u00a7100 of the taxable property of the town, shall be included in the first succeeding tax levy provided for in section 13 of this act, and be in addition to the levy for roads and bridges.\u201d Section 17 provides: \u201cWhenever damages have been allowed for roads or ditches, the commissioners may draw orders on their treasurer, payable only out of the tax to be levied for such roads or ditches, when the money shall be collected or received, to be given to persons damaged.\u201d It is clearly the duty of the commissioners, \u201cwhen damages have been agreed upon, allowed or awarded for laying out roads,\u201d to include \u201cthe amounts of such damages, not to exceed for any one year twenty cents on each \u00a7100 of the taxable prop\u00e9rty of the town * * * in the first succeeding tax levy provided for in section 13.\u201d That section provides that such tax levy shall be made at the meeting of the commissioners immediately preceding the annual meeting of the county board. This meeting of the county board is to be held the second Tuesday of September. (Rev. Stat. 1874, chap. 34, sec. 49.) The semi-annual meeting of the commissioners shall be on the same day of meeting of the board of town auditors, (sec. 13, supra,) and the town auditors hold their semi-annual meeting on the Tuesday next preceding the annual meeting of the county board. (Rev. Stat. 1874, chap. 139, aft. 13, sec. 3.) There can be but one tax levy in a year. (St. Louis Nat. Stock Yards v. People, 127 Ill. 22.) The commissioners failing to make any levy for the payment of the damages for the road in controversy on the first Tuesday in September, 1894, they were thereafter in default. The relator could not have made a legal demand on them before, as he could not know that they would disregard the plain mandate of the law. (City of Cairo v. Campbell, 116 Ill. 305.) But a demand was not necessary. \u201cIf the duty, the performance of which is sought to be enforced, is a public duty, resting upon respondents by virtue of their office, it is well settled that no such demand and refusal are necessary.\u201d High on Ex. Legal Rem. sec. 41, cited in People v. Board of Education, 127 Ill. 613; People v. Williams, 145 id. 573.\nFourth\u2014It is contended by the appellants that the town of Goshen is indebted beyond the constitutional limit, and that the court has no power to compel it to create an indebtedness contrary to law. The commissioners have no power to draw any orders for the payment of these damages unless there is a fund on hand for their payment or a tax levy has been made for that purpose. (Sec. 17, supra; Comrs. of Highways v. Newell, 80 Ill. 587; Brauns v. Town of Peoria, 82 id. 11; Sullivan v. Comrs. of Highways, 114 Ill. 262.) In City of Springfield v. Edwards, 84 Ill. 626, where the question of municipal indebtedness beyond the constitutional limit is fully considered, the court say (p. 633): \u201cIn this view we are only prepared to yield our assent to the rule recognized by the authorities referred to, with these qualifications: First, the tax appropriated must, at the time, be actually levied; second, by the legal effect of the contract between the corporation and the individual, made at the time of the appropriation, the appropriation and issuing and accepting of a warrant or order on the treasury for its payment must operate to prevent any liability to accrue on the contract against the corporation. The principle, as we understand, is, there is in such case no debt, because one thing is simply given and accepted in exchange for another. When the appropriation is made and the warrant or order on the treasury for its payment is issued and accepted, the transaction is closed on the part of the corporation, leaving no future obligation, either absolute or contingent, upon it, whereby its d\u00e9bt may be increased.\u201d This opinion is cited in the well-considered case of Law v. People, 87 Ill. 385, and fully sustained in Fuller v. Heath, 89 id. 296.\nThe law provides how money to pay for such damages on account of laying out new roads shall be raised, and further expressly limits the commissioners, in drawing orders for the payment thereof, to orders \u201cpayable only out of the tax to be levied for such roads, when the money shall be collected or received, to be given to persons damaged.\u201d The very words of the statute seem to be framed to meet the decision in City of Springfield v. Edwards, supra. The awarding of damages for laying out a new road is not the creation of any debt, either present or contingent, but is in the nature of a sale for cash. The property owners to whom the damages are to be paid are not obliged to part with their land until they have received their damages, and the statute expressly provides, (Eminent Domain act, sec. 10,) that the petitioner may \u201center upon such property, and the use of the same, upon payment of full compensation, as ascertained as aforesaid,\u201d\u2014which statute is to be construed in pari materia with the Road and Bridge act. (Hyslop v. Finch, 99 Ill. 174.) Whenever the commissioners tender the cash, or its equivalent, to the land owners, then, and not till then, will they be in a position to take possession of the road. Can it be said that the land owners could sue the town before possession taken? In City of Chicago v. Barbian, 80 Ill. 482, the court say (p. 485): \u201cThe rights of the parties are correlative and have a reciprocal relation, the existence of the one depending on the existence of the other. When \u2022 the party seeking condemnation acquires a vested right in the property, the owner has a vested right in the compensation; but since no vested right can be acquired in the property, without the owner\u2019s consent, until compensation shall be paid, it must follow there can be no vested right in the compensation until after the amount is paid.\u201d We cannot regard the proceeding as the creation of a debt.\nFifth\u2014Objection is made to the language of the writ of mandamus,- as awarded; also to the prayer of the petition, as being too broad. The court is not obliged to grant the prayer in its entirety, but only so much as the relator is shown to be entitled to. The objection to the language of the writ as awarded is, that it commands the commissioners to open and work said highway for public travel before it commands them to levy the tax to pay the damages assessed, and to the insertion of the word \u201cwork\u201d in the writ. We apprehend that the order of the clauses in the writ is immaterial, inasmuch as it commands them \u201cto proceed with all lawful diligence,\u201d etc., and \u201cto do all acts and things necessary and lawful to be done for the speedy opening of said road for public travel.\u201d The insertion of the word \u201cwork\u201d is immaterial, and does not deprive the commissioners of their discretion as to the manner of placing the\" road in a fit condition for travel.\n' It is finally contended by the appellants that the payment of these damages will be a great burden on the taxpayers of the town, and that no public interest requires the road in controversy. These are not questions for ns to decide. The statute vests this power in the commissioners, and in the supervisors on appeal. (Laws of 1883, sec. 48, p. 149.)\nThe judgment of the Appellate Court will be affirmed.\nJudgment affirmed.", "type": "majority", "author": "Mr. Justice Carter" } ], "attorneys": [ "B.'F. Thompson, for appellants.", "Victor G. Fuller, and Allen P. Miller, for appellee." ], "corrections": "", "head_matter": "Commissioners of Highways of the Town of Goshen v. William A. Jackson.\nFiled at Ottawa January 19, 1897.\n1. Highways\u2014police magistrate may enteHain proceedings to assess damages far opening road. The jurisdiction of police magistrates and justices of the peace being uniform, the former may entertain proceedings to assess damages for opening a road, although section 41 of the Road act (Laws of 1883, p. 148,) designates the latter as the proper tribunal.\n2. Same\u2014final meeting of supervisors need not he held in the town where the road is located. A final meeting of supervisors at which a road is ordered to be established is not invalid because held at a point outside the town in which the road is located.\n3. Same\u2014no demand on commissioners to open road and levy tax necessary before petitioning for mandamus. The duty of highway commissioners to open a road and levy a tax therefor, as ordered by the supervisors, is public, resting upon them by virtue of their office, and no demand upon them is necessary after their default, before the filing of a petition for mandamus.\n4. Same\u2014land owners awarded damages need not part with land before receiving compensation. Section 10 of the Eminent Domain act, (Rev. Stat. 1874, p. 477,) providing that petitioners may enter upon lands and the use of the same upon payment of the full compensation awarded, is to be construed in pari materia with the Road act.\n5. Same \u2014aioarding damages on opening road does not create a township indebtedness. It is no defense to mandamus to compel highway commissioners to open a road and levy a tax therefor, that the township indebtedness already exceeds the constitutional limit, as the awarding of damages to land owners for opening a road does not create an indebtedness.\n6. Same\u2014 questions of necessity for road and burden on tax-payers not open in Supreme Court. Whether the payment of damages for opening a road will be a great burden on tax-payers, or whether the public interest does not require a road, are questions upon which, under section 48 of the Road act, the determination of the highway commissioners, or, upon appeal, of the supervisors, is final.\n7. Mandamus\u2014that prayer in mandamus petition is too broad is no objection on appeal. An objection that the prayer in a petition for mandamus is too broad cannot be entertained on appeal, as a court is not obliged to grant the prayer in its entirety, but only so much thereof as the petitioner is entitled to.\n8. Same\u2014no objection to writ that the order of its commands is reversed. A writ of mandamus commanding highway commissioners \u201cto proceed with all lawful diligence to open and work such road for public travel and levy all necessary and lawful taxes to pay damages to land owners,\u201d etc., is not objectionable because the command to open the road comes before the command to levy the tax.\nComrs. of Highways v. Jaclcson, 61 Ill. App. 381, affirmed.\nAppeal from the Appellate Court for the Second District;\u2014heard in that court on appeal from the Circuit Court of Stark county; the Hon. N. E. Worthington, Judge, presiding.\nB.'F. Thompson, for appellants.\nVictor G. Fuller, and Allen P. Miller, for appellee." }, "file_name": "0017-01", "first_page_order": 17, "last_page_order": 25 }