LaSalle County IL Archives Court.....Board, V People 1850 ************************************************ Copyright. All rights reserved. http://www.usgwarch.org/copyright.htm http://www.usgwarch.org/il/ilfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 23, 2008, 3:30 pm Source: Records Of Cases Illinois Written: 1850 The Board of Trustees of the Illinois and Michigan Canal, plaintiffs in error, v. The People ex relatione John V. A. Hoes and others, defendants in error. Error to La Salle. An alternative mandamus becomes the foundation of all subsequent proceedings, and must show on its face a clear right to the relief demanded, by setting forth all the material facts, so that they may be admitted or traversed. (a) The usual mode of taking advantage of a defective alternative mandamus, is by motion to quash. This may be the only mode of reaching mere formal defects. Objections to substantial defects may be raised at any time. This was a proceeding for a mandamus, commenced in the La Salle Circuit Court, by Hoes and others, to enforce the construction of a bridge over the Illinois and Michigan canal. At the March term, 1849, T. L. Dickey, Judge, presiding, Hoes, on behalf of himself and others, filed an affidavit, stating that a public road leading from the town of Ottawa, in said county of La Salle, leading across the canal, had been laid out and established by the county commissioners, in March, 1835, which road was intersected by the canal, and had been used as a public highway since 1835, until it was obstructed by the opening of the canal in 1848. That a certain state road, authorized by an act of the legislature of 1845, was laid out in that year, which was also obstructed by the canal at the same point. Also, that another road leading from Ottawa, which had been used and traveled since 1832, was also obstructed by the opening of the canal; all these roads were on secton 10, T. 33 N., R. 3 east of 3d P. M. That an application had been made to the canal trustees, to remove the obstruction by the erection of a suitable bridge, which the trustees had neglected and refused to build. This affidavit was accompanied by exhibits, showing the laying out of said roads by the proper authorities. The Circuit Court thereupon directed that an alternative writ of mandamus should issue to the canal trustees, commanding them to construct a bridge, or show cause to the contrary, at the next term of the court. A writ was issued in the form as set out in the opinion of the court, on the seventh of May, 1849, which was served on the trustees, by copy. At the special term of the Circuit Court, in July, following, it was ordered, that a peremptory writ of mandamus issue, requiring and commanding the trustees to erect the bridge. The canal trustees sued out a writ of error, and brought the cause before this court, at Ottawa, but, by consent of parties, the cause was continued to Springfield, for hearing and judgment. The errors assigned, state that there was no proper case or facts shown in the pleadings, which authorized the issuing of the writ. That the peremptory mandamus improperly emanated, and that the alternative was improperly served and was substantially defective. R. S. Blackwell and I. N. Arnold, for plaintiffs in error: The canal trustees are not bound to erect the bridge in controversy, because no such duty is imposed upon them by law. At common law, counties were bound to erect and repair bridges. And no person or corporation is compelled to build or repair them, unless by force of some statute, or in cases of tenure or prescription: 1 Bacon Abr., 533 and 534, tit. Bridges; 1 Burns' Justice, 250, citing 22 Hen. 8, c. 5; 3 Com. Dig., 34, tit. Chimin (B 1); Queen v. Inhabitants of the County of Wells, 6 Mod. R., 307, case 400; Regina v. Justices of St. Peters, in York, 2 Ld. Raym., 1251; The King v. W. R. of York, 7 East Rep., 588; The King v. Inhabitants of Bucks, 12 East, 192; see also 5 Bur. R., 2594, 13 East R., 220. This rule recognized in this country: 17 Johns., 452; 7 Wend., 477; 2 Comstock, 169, 170; also 2 N. H., 513. Same rule incorporated in our statutes: Territorial Laws, 1807, page 300, sec. 15; Laws 1819, page 301, sec 2; Eyman v. People, 1 Gilman, 7, 8; see also Pope's Stat., 1815, page 640, sec. 15; Laws 1835-6, page 207, sec. 2; Rev. Stat. 1845, pages 482, 485 and 488, secs. 10, 23 and 37. English parliaments recognize common law rule by requiring canal and railway companies to restore easements: 45 E. C. L., 161; 10 M. & W., 263, see also 13 East. 220; 10 East, 305; 6 M. & W., 699. Same provision in Union Canal Co., Pa.: Union Canal v. Pinegrove, 6 W. & S., 560, cited, 1 Sup. U. S. Dig., 362, sec. 24. Same provision in Erie Canal bill: 20 Johns., 742, see also 3 Hill., 569; 25 Wend., 462. So in Massachusetts: 3 Mass., 253; 7 Metcalf, 70. And New Jersey: 1 Spencer, 324. And Connecticut: 4 Day, 208, Legislature of this state also: Laws 1818, page 45, sec. 4; page 119, sec. 5; Private Acts, 1827, page 27, sec. 1; Private Acts, 1833, page 81, sec. 11; Wabash and Miss. Railroad Co., Laws 1835-6, page 42, sec. 17 (same session with canal bill), page 145; similar charters in Laws of 1834, 1835, 1836, 1837. Also in the only two canal acts ever passed: Beardstown and Sangamon Canal Co., Laws 1835-6, page 100, sec. 10. Same session: Rock River Rapids Canal Co., Laws 1845, page 237, sec. 4. Where provision is omitted, the charge is upon the counties: King v. Inhabitants of Berkshire, 2 East, 342; Walesbury v. Clark, 4 Day., 208; City of Lowell v. Proprietors of Locks and Canals, etc., 7 Metcalf, 1; answer case in 1 Gill., 222; Kyle v. Auburn & Rochester R. R. Co., 2 Barbour Ch. Rep., 489. This principle recognized: Laws 1845, page 90, sec 21. County of La Salle benefited by the canal, and ought to bear the charge. Th right of way for the construction of the canal was granted prior to the establishment of the roads obstructed, and the county is bound to erect the bridges: 3 U. S. Stat. at Large, 659; 3 Story's Laws, 1833 and 2062; 4 Ibid, 234, c. 51; 4 Ibid, 662, c. 87. County court no power to lay out a highway under such circumstances: Barbour v. Andover, 8 N. H. R., 398; Laws, 1835, p. 138, sec. 32. This grant accepted by Illinois Legislature: Laws, 1829, p. 17, sec. 10. Presumption in favor of location and survey: Laws, 1829, p. 15 sec. 5; 8 Humph., 110. Right of way reserved by state: Laws 1831, p. 43, sec. 11; Laws, 1837, p. 42, sec. 10. Reserved by act of congress, 13 Pet., 513. The survey, location, construction, and completion of canal worked an extinguishment or discontinuance of the highways in controversy. Power of the legislature adequate: 6 How. U. S. Rep., 507; 11 Verm., 198; 4 Pick., 463; 2 Peters, 245; 4 Humph., 315; 2 N. H., 24-5; 10 Eng. C. L., 413. Roads have been repeatedly discontinued in this state by legislature and county courts. Ample power in canal trustees to discontinue: Laws, 1829, p. 17, sec. 10; Laws, 1831, p. 43, sec. 11; Laws, 1835, p. 225, secs. 21 and 22; Laws, 1836, p. 148, secs. 21 and 22. Trustees have same power: Laws, 1842, p. 56, sec. 10; Laws, 1845, p. 31, sec. 1. These laws to be liberally construed: 4 Blackf., 505; 17 Conn., 46-23; 23 Pick., 49; 9 Metcalf, 553. The location, survey, and completion of canal worked a discontinuance: 11 Verm., 198; 17 Conn., 463; 14 Pick., 279, 280; 12 Peters, 97. Not sufficient facts shown in mandamus to justify the judgment awarding peremptory writ: 7 East, 345; 5 Eng. C. L. R., 266; 10 Wend., 26; 25 Maine, 333; 51 Eng. C. L. R, 898. It does not show a legal highway. User interrupted by state in surveying and constructing canal. Road of 1835, no width given: Laws, 1835, p. 131, sec. 9; 5 Blackf., 462; 1-4 Ohio, 613; Laws, 1845, p. 89, sec. 21. Liability of canal trustees not shown: 8 Iredell, 411; 1 Hawkins, P. C., 705; 4 Iredell, 16; 1 Harrison, 222; 1 Green, 314; 5 Burr., 2700; 3 Chitty C. Law, 594-5. Does not show a fund provided by law for the erection: 1 Gilm., 570-1; 7 Mass., 187- 8; 7 Wend., 476-7; 1-4 Ohio Cond., 268; 6-7 Ohio Cond., 192. Precise place where bridge to be erected not designated. County of La Salle ought to have been relators: 25 Maine, 291; 16 Pick., 105-6; 11 Ill., 202; 19 Wend., 56. Mandamus will not lie, right not legal: 12 John., 414; 19 Wend., 65; 5 Wend., 122; 9 S & M., 90. The rule is different where a way is obstructed by a private corporation: Trenton Water Power Co., 1 Spencer, 659; Leopold v. C. & O. Canal Co., 1 Gill., 222; King v. Inhabitants of Lindsey, 14 East, 317. N. H. Purple and J. V. A. Hoes, for defendants in error: It is doubted whether a party in contempt is entitled to a writ of error. Mandamus is proper where the law has established no specific remedy, and where in justice and good government there ought to be one: Bacon's Ab., 418; 1 Cowen, 423. The highway is a public easement, the legal right vesting in the people, and any one may enforce and obtain a mandamus in such a matter: People ex rel. Case v. Collins, 19 Wend., 64. In the case at bar, mandamus is the proper and appropriate remedy: 10 Wend., 56. The canal trustees had no right in cutting their canal across this highway, utterly to destroy it; and are bound to unite, for the public accommodation, the highway thereby divided, by a reasonably convenient thoroughfare over or under their canal: Leopold v. Chesapeake & Ohio Canal Co., 1 Gill., 222. The case of Leopold v. Chesapeake & Ohio Canal Company, 1 Gill., 229, was decided upon the charter granted by state of Maryland, in 1823. See Laws Maryland, 1823, p. 85. This law contains no provision requiring company to build bridges. The road laws of this state in force at the time of authorizing the construction of this canal, and those passed since, point out the method of vacating roads, and prohibit the obstruction of those established by "placing any obstruction therein," or "digging any ditch across the same:" Laws, 1835, secs. 2, 8. This is in reply to the reference, on the other side, to the laws authorizing the companies to take "lands," etc. The ditch is as good as those laws. The legislature did not intend, in authorizing the construction of its numerous feeders, to repeal the road laws, or authorize the entire destruction of the numerous highways which must necesarily be crossed by them, or they would have provided some remedy. Nor could they have intended to have imposed the heavy burden of uniting the several highways thus divided, upon the people of the counties or districts in which they may chance to be. The most the legislature could have intended was to so far modify the road laws as to authorize the canal to intersect the roads; the public to be accommodated by a passage way over or under the canal, to be provided by the canal authorities. That the Canal Trustees understood the law as requiring the erection of bridges by them, is a matter of public notoriety deemed proper to be referred to in presenting the case to the court. They have constructed bridges at nearly every point where the canal or its feeders intersect a highway, and are now maintaining them at the cost of the canal fund. Will the court discharge them from either building others where they have refused or neglected to build them, and where highways have been regularly established, and where the public accommodation requires them. The writ in this case is not substantially defective. The case referred to on the other side (10 Wend., 25), does not sustain the position that it is assumed to. The writ in this case contains all that is material. The command to do the particular thing required to be done, and the reason why "the canal at that point obstructing the public highway," no reference to affidavits on file to help it out as in the case referred to. But admitting the writ to be defective, as is alleged. The parties have appeared, if that is necessary, it does not appear to be, and the peremptory writ has been awarded, and it is therefore now too late to take exception to the writ: 10 Wend., 25. The only question now for the court to determine is, whether there was sufficient appearing upon the record (10 Wend., 33) to authorize the court to award the peremptory writ. Treat, C. J. This was a proceeding by mandamus to compel the trustees of the Illinois and Michigan canal, to erect a bridge over the canal in La Salle county. Upon a petition and accompanying papers, the Circuit Court directed an alternative mandamus to issue. The writ, after reciting the term of the court and the names of the parties, proceeded to state, that the court "did order that an alternative mandamus issue out of said court, directed to and commanding the said trustees, that immediately upon the receipt of said writ, they cause a bridge of suitable dimensions to be built over the Illinois and Michigan canal, at the centre east and west of section ten, township thirty- three north, of range three east of the third principal meridian, in said county, the said canal at that point obstructing a public highway; or that they show cause to the contrary, before our said Circuit Court. Now, therefore, we, being willing that full and speedy justice be done in this behalf, as it is just, command you, the said trustees, that immediately after the receipt of this writ, you cause the said bridge to be built, or that you show cause to the contrary," etc. The writ was served on the trustees, but they failed to make any return thereto, and the court awarded a peremptory mandamus. The trustees sued out a writ of error from this court. It is insisted, that the alternative mandamus is too defective to sustain judgment. An alternative mandamus becomes the foundation of all the subsequent proceedings in the case. It answers the same purpose as the declaration in ordinary actions. It must show on its face a clear right to the relief demanded by the relator. He must distinctly set forth all the material facts on which he relies, so that the same may be admitted or traversed. The defendant is called upon to perform the particular act sought to be enforced, or, by a return, deny the facts alleged in the writ, or state other matters sufficient to defeat the relator's application. He is not required to answer the petition on which the writ is ordered. This is the well established practice in the proceeding by mandamus: The King v. The Bishop of Oxford. 7 East, 345; The King v. The Margate Pier Company, 3 Barnewell & Alderson, 220; Clarke v. The Company of Proprietors, 6 Adolphus & Ellis, N. S., 898; The Commercial Bank v. The Canal Commissioners, 10 Wendell, 26; The State v. Jones, 1 Iredell, 129; Hoxie v. The County Commissioners, 25 Maine, 333; The People v. Ransom, 2 Comstock, 490. In this case, the alternative mandamus is fatally defective. It does not set forth the facts on which the relators rely. It does not apprise the defendants of the grounds upon which the remedy is sought. They are not permitted to traverse a certain state of facts, or admit the same to be true, and set up new matter in avoidance. The writ simply commands them to perform a particular act, or furnish an excuse for not doing it. It is not sufficient to uphold the proceedings. The judgment has no basis on which to stand. The usual mode of taking advantage of a defective alternative mandamus, is by motion to quash. And that maybe the only mode of reaching mere formal defects. But objections to substantial defects may be raised at any stage of the proceedings. This is like the case of a writ of error brought to reverse a judgment entered on a declaration showing no cause of action; or of a conviction on an indictment, that does not charge the commission of an offense. The proceedings fall for the want of a proper foundation to sustain them. The following cases are in point, if authorities are needed in support of so plain a proposition. In the case of The King v. Overseers of Mallett, 5 Modern, 421, the writ was held ill after return made. In The King v. The Margate Pier Company, supra, the defendants were allowed to take advantage of a material defect in the writ, after their return was made. In Clarke v. The Company of Proprietors, supra, it was held by the court of exchequer, that, on demurrer to a traverse of the return to an alternative mandamus, the defendant might impeach the validity of the writ. In the case of The Commercial Bank v. The Canal Commissioners, supra, a demurrer to the return was carried back and sustained to the writ. It is not necessary to express an opinion on the question, whether the trustees are bound to construct and maintain bridges across the canal. The judgment must be reversed, with costs, against the relators. Judgment reversed. ------------------- (a) The People v. Hatch, 33 Ill., 9 (annotated edition), and note; Commissioners v. The People, 66 Ill., 839; The People v. Glann, 70 Ill., 232. The writ must allege the relator has no other remedy: School Inspectors v. The People, 20 Ill., 526. See R. S. 1875, ch. 110, sec. 11. Additional Comments: Reports of Cases Determined in the Supreme Court of the State of Illinois from November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor at Law. Volume XII. Reprinted from the Original Edition, with Annotations by William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 1881. File at: http://files.usgwarchives.net/il/lasalle/court/board122gwl.txt This file has been created by a form at http://www.genrecords.org/ilfiles/ File size: 17.7 Kb