31 Ill. App. 302 | Ill. App. Ct. | 1889
A petition for mandamus was filed in • the Circuit Court of Madison County, Illinois, to which a demurrer being overruled, pleas were filed denying the material averments of the petition, when, issue being joined, a trial was had and a judgment entered against the defendants in the Circuit Court. That judgment we are asked by this appeal to review.
While several errors are assigned, we deem it necessary to consider only the fourth assignment of error, which is, that the judgment of the court was contrary to the law and the evidence in the case.
The court ordered the commissioners of highways of town 4, north of range 7, west of the 3d principal meridian, to work upon, and repair that part of the road mentipned and describee in the petition, by removing the weeds and underbrush and repairing the.culverts, and that they should proceed withou; unnecessary delay to put said highway in a condition fit to be used as a highway, and to remove all obstructions and impediments to travel.
Where there is entire neglect to work the roads, and the same are out of repair, it has been held that a proceeding by mandamus is the proper remedy to compel the commissioners of highways to do their duty. But there is a certain judgment and discretion left to the commissioners of highways in the discharge of their duty under the law, and where they have the right to exercise such judgment and discretion they can not be commanded, in this character of proceeding, to perform a duty in a manner specific, as in the judgment before us, but can only be commanded generally to do their duty.
Therefore, to decree that the repairs should be made in a specific manner, and that the work done should be of a particular character, was error.
Again, there is in this judgment no finding by the court, nor is there in the petition any allegation that the defendants, the commissioners of highways, had in their possession any money that could be used, for the purpose of putting the road in repair.
The commissioners of highways must either have money on hand, or money that can be controlled by them, before , they can be ordered to expend money. Before a proceeding of this character can be had for the expenditure of money by a municipal corporation, there must be a finding by the court that there is money in the hands of the corporation, that can be used for the purpose of making the repair or improvement, or the order must command its expenditure when collected. In the absence of such a finding by the court, it was erroneous to decree that these repairs should be made.
For these reasons the judgment is reversed and the cause remanded.
Reversed and remanded.
