#### The People ex rel. Fred A. Eisele, County Collector, Appellee, vs. The Toledo, St. Louis and Western Railroad Company, Appellant.

Opinion filed December 10, 1915.

1. Taxes—meeting to determine road tax rate is essential. The meeting of highway commissioners provided for in section 50 of the Roads and Bridges act of 1913 to fix the road tax rate is essential to the validity of the tax.

2. Same—record of meetings of highway commissioners must be kept. In view of the various provisions of the Roads and Bridges act of 1913, particularly section 121, it is the duty of the town clerk to keep a record of the meetings of highway commissioners, notwithstanding the act in question omits the express provision of the former law requiring the clerk to keep a record of all the official acts and proceedings of the board in a well bound book provided for such purpose; and such being the case, the action of the commissioners can be shown only by the record.'

Cooke, J., dissenting.

Appeal from the County Court of Madison county; the Hon. J. E. Hillskotter, Judge, presiding.

C. E. Pope, and H. F. DriemeyER, (Charles A. Schmettau, of counsel,) for appellant.

Mr. Justice Dunn

delivered the opinion of the court:

The Toledo, St. Louis and Western Railroad Company filed objections to the application of the collector of Madison county for a judgment and order of sale of its property for taxes. The court overruled the objections, and the railroad company has appealed from the judgment.

The taxes involved were the road and bridge taxes of the towns of Collinsville, New Douglas, Alhambra and Hamel. The objections were that the highway commissioners in those towns did not hold a regular semi-annual meeting between the first Tuesday in August and the first Tuesday in September for the purpose of determining the tax *473rate to be certified by them to the county board. These were valid objections, which, if sustained by the evidence, would prevent judgment for the taxes. (People v. Toledo, St. Louis and Western Railroad Co. 266 Ill. 112; People v. Toledo, St. Louis and Western Railroad Co. 267 id. 142.) The records of the highway commissioners in none of these townships showed any meeting of the commissioners between the first Tuesday in August and the first Tuesday in September at which any action was taken in regard to the road and bridge tax. The appellant contends that a record of the proceedings by the commissioners was required to be kept, and that the failure of the record to show the meeting required by law is proof that no such meeting was held. If the commissioners were required to keep a record of their proceedings there is no- doubt that their action could be proved by the record alone, and the failure of the record to show any action would be evidence that no such action was had. (People v. Madison County, 125 Ill. 334; City of Belleville v. Miller, 257 id. 244.) The case, therefore, turns upon the question whether a record was required to- be kept of the proceedings of the highway commissioners.

Prior to 1913 the Road and Bridge law provided that the town clerk should be ex-officio clerk of the board of highway commissioners, and should keep a record of all the official acts and proceedings of the board in a well-bound book to be provided for that purpose. In the revision of the Road and Bridge law in 1913 the provision expressly requiring the clerk to keep a record of all the official acts and proceedings of the board was omitted, though- it was still provided that the town clerk should act as the clerk of the board of highway commissioners of his town. (Hurd’s Stat. 1913, sec. 42, p. 2123.) By section 51 it was enacted that the clerk should have the custody of all records, books and papers of the town or road district and should file all certificates or oaths and other *474papers required by law to be filed in his office. Among other things he is required to record in the book of records of his district all orders and directions of the highway commissioners required by law to be kept and as thereinafter provided for. Section 80 provides for the filing and recording by the town clerk of all agreements for or releases of damages in the establishment, alteration, widening or vacating of roads. Sections 92 and 99 provide for recording final orders with reference to the establishment of roads. Section 121 is as follows: “The-commissioners shall keep a full and accurate record of all their proceedings under this act, .and shall, upon the completion of the road, file with the town or district clerk all records, papers, plans, plats, estimates, specifications and contracts, and shall make á full report to, and settlement with the board of town auditors or district clerk as provided in section 50 of this act. If the commissioners fail to malee such settlement, the supervisor or board of county commissioners shall cause an action to be instituted against them in the corporate name of the township or road district to enforce such settlement.’-’

In our judgment the duty of the clerk to keep a record of the proceedings of the commissioners is not any less extensive than it was under the former act. The language of section 121 is positive and unequivocal. Unless limited by construction there can be no doubt of its requirement that the commissioners shall keep a full and accurate record of all their proceedings. This section was a part of the act to authorize the construction and maintenance of gravel, rock, macadam or other hard roads, (Hurd’s Stat. 1911, p. 2038,) which, with some modifications, was inserted in the Road and Bridge law of 1913 as subdivision 8 of article 6, under the head of “Gravel, rock and macadam hard roads.” Article 6 deals with the general subject of the town and district organization and administration for highway purposes, and is the portion of the act which provides for the election of highway commissioners, defines their *475duties and powers and provides for their organization and method of performing their duties. We see no reason why the requirement for the keeping of records should be limited by construction because of the part of the act in which the requirement appears. The subdivision in which section 121 appears is dealing with the particular subject of hard roads, but the language used is general and refers in express terms to all proceedings under the act. We cannot assume that there was any inadvertence in the use of this language. It might be thought that this provision would be found more logically and naturally in some other part of the act bearing particular reference to the general powers and duties of the commissioners or of the clerk. It cannot, however, be held ineffective, nor can its meaning be limited, because of the incongruity of the connection in which it appears, unless some reason appears requiring the clause to be given an interpretation different from its natural meaning. The character of the proceedings of the highway commissioners is such that records of them would naturally be required. For many years such records have been expressly required by statute. The act under consideration expressly requires the keeping of such records, and unless something in the act itself clearly requires the general terms in which this requirement is expressed to be restricted, or indicates an intention to change the law in this respect, it must be held that the legislature intended that a record should be kept of all proceedings of the highway commissioners. The board of highway commissioners is a quad municipal corporation. It is vested with important powers and has imposed upon it important duties. Commissioners of highways, in the aggregate, expend vast amounts of the public money. They levy large sums for public purposes. The construction and maintenance of public highways and bridges and the expenditure of money for those purposes are in their hands. They must act in their corporate capacity by votes taken at meetings at which the individual com*476missioners act in their official capacity. Even if the act did not, in terms, require that the board should keep a record of its proceedings, yet the nature of the duties of the commissioners makes it important that such a record should be kept. Only by this means could there be any certainty or permanency about their action. If the levy of taxes, the laying out and establishing of roads, the settlement of damages, the calling of elections, the issuing of bonds and other action of the commissioners were left to be determined by the uncertain memories of the participants in those transactions, weeks or months or years after they occurred, there would be no stability in such matters. These ought to be preserved by a permanent record, and we hold that under the Road and Bridge act as it now exists the commissioners of highways are required to keep a record of their proceedings. This disposes of the case. There was no record of a meeting of the commissioners at which the rate to be certified to the county board was determined, and the objection of the appellant should have been sustained.

• The judgment will be reversed and the cause remanded, with directions to the county court to sustain the objection.

Reversed and remanded, with directions.

Mr. Justice Cooke,

dissenting:

I am of the opinion that the present Road and Bridge act nowhere requires the clerk to keep a record of all the official acts and proceedings of the commissioners of highways, and that in the absence of such statutory requirement, under the authority of Town of Old Town v. Dooley, 81 Ill. 255, the commissioners are not required to keep a record of their acts and the proceedings of the commissioners may be proved by parol.