Board of Supervisors v. People ex rel. Commissioners of Highways , 12 Ill. App. 210 ( 1883 )

Pillsbuby, P. J.

It is urged in support of the demurrer that all the facts out of which arises the duty on the part of the county board to make the appropriation asked, having been determined by the relators as averred in the petition, the existence of such facts can not he controverted by the county board.

It may be conceded that as to those matters relating to roads and bridges which are by the statute placed under the exclusive, control and jurisdiction of the highway commissioners by the statute, their findings may be said to establish the existence of the fact as they have determined it to be.

Whether a bridge is necessary at a given point is a question of this character, as it is made so by the express provisions of the statute, and their determination that the construction of it would be an unreasonable burden upon the town, would, under the decision in Com’rs of Belmont v. Iroquois County, 100 Ill. 640, probably have the like effect to conclude the county board. But we find no warrant either in the statute or the above decision for holding that the relators constitute the only tribunal having jurisdiction to determine the question that the town has raised one half the necessary funds for completing the proposed work, in any such way as to preclude the defendant or the courts from inquiring into the existence of such fact.

The statute makes it the duty of the commissioners of highway to apply to the county board for aid in constructing such bridge when such bridge is necessary, and its cost will be more than can be raised in one year by ordinary taxes for bridge purposes, and it would be an unreasonable burden upon the town to bear its entire expense.

These facts authorize the commissioners of highway to apply for the required aid, but the county board is not obliged to grant the prayer of the petition until the town has raised one half of the funds necessary to build the bridge.

We have no doubt the county board has the right to investigate and determine for itself whether the town has thus complied with the requirements of the statute, and if it be found that it has not, the board will be justified in refusing the aid demanded. It is essential that the petition for a mandamus against the board should allege the existence of such fact, and such allegation is a traversable one by a denial in the answer. And if the issue thus made be found for the defendants or admitted by demurrer, a mandamus ought to be refused. In this case the denial of such fact in the answer is as broad, full and explicit as the averment in the petition of its existence.

The record shows that the demurrer was sustained to the whole answer, and the defendants denied the leave asked to amend, and a peremptory writ awarded, thus showing that in the opinion of the court no defense was shown by the answer. We are of the opinion that this was error. If the demurrer was sustained to the answer because some issues therein tendered were deemed immaterial, we think the' court should have permitted the respondent to amend the answer in that regard, and not have overruled the entire defense presented.

In the case of McHenry County v. The People, 12 Bradwell, 204, decided at the present term, we have fully stated our views as to the effect of the act of the relators in proceeding to, and in building the bridge under the provisions of Sec. 111 of the statute, if they did so build it, and we see no reason to add anything to what was there said upon such questions.

The judgment of the court below in awarding the peremptory writ of mandamus will, for the error indicated, be reversed, and the cause remanded for further proceedings.

Judgment reversed.