71 Ill. App. 348 | Ill. App. Ct. | 1897
delivered the opinion of the Court.
Plaintiffs in error presented to the Circuit Court a petition for mandamus to compel defendants in error to make an appropriation of $1,000, to aid in the construction of a bridge over Okaw river. The petition shows that the plaintiffs in error, as commissioners of highways, had determined upon the construction of the bridge, had estimated the cost of construction at $2,000, and had petitioned defendants in error to appropriate one-half the sum so estimated from the county treasury as provided by Sec. 19, Chap. 121, entitled, “Roads,” etc., but that the defendants in error rejected the petition and refused to make the appropriation.
To the petition for a mandamus, defendants in error filed an answer in the nature of a plea of confession and avoidance, setting up that after the filing of the petition for aid, and the refusal by the county board, and before the filing of the petition for mandamus, the plaintiffs in error entered into a contract for the construction of the bridge with the Indiana Bridge Company, claiming that they were thereby barred all right of aid from the county. A demurrer was filed to the answer, which was by the court Overruled.
Plaintiffs in error stood by their demurrer and the court rendered judgment against them for costs.
In our opinion the plea did not present a good defense to the petition, and the court erred in overruling the demurrer to it.
Plaintiffs in error show by their petition that they had done all that was required of them by the statute when they applied to the county board for aid. It was not discretionary with the county board to grant or refuse the aid when the highway commissioners had done all that the statute required of them. The right to it accrued to the commissioners when they presented their petition on the 10th of September, 1895, and was not waived by their entering into the contract for construction with the bridge company.
The amount of the appropriation to which they are entitled is one-half of the estimated costs, and not one-half of the contract price with the company.
The judgment will be reversed and the cause remanded with directions to the Circuit Court to sustain the demurrer to the answer, with leave to defendants in error to plead again if they desire.
Reversed and remanded.