23 Ill. App. 386 | Ill. App. Ct. | 1887
It is conceded that if the court was right in excluding the oral testimony to prove the action of the Commissioners of Highways, there was no error in directing the jury to return a verdict for the respondents.
Before the Commissioners of Highways can demand aid from the county to build a bridge, they must primarily find and determine that certain facts, jurisdictional in their nature, exist in the given case. These facts are:
1st. That a bridge is necessary.
2d. That its construction would be an unreasonable burden upon the town.
3d. That its cost will be more than can be raised in one year by ordinary taxes for bridge purposes.
After determining these preliminary propositions, and providing one-half of the necessary funds for the construction of the bridge, they may call upon the County Board to appropriate the other half.
There was no record evidence offered that the relators in this cause ever determined to build the bridge in question, or that any of the conditions existed that would authorize it, under See. 110 of the Road and Bridge Act, to apply for county aid; but it is insisted that record evidence is not indispensable to establish the finding of the Commissioners in this regard, but that the same may he shown by oral testimony in the absence of a record of their actions. It was held in Town of Rutland v. Town of Dayton, 60 Ill. 58, that Commissioners of Highways were, under the statute, a quasi corporation; and in Board of Supervisors v. The People, 110 Ill. 511, it is said: “ While Commissioners of Highways are corporate bodies, whose powers and jurisdiction are limited territorially to the respective townships to which they belong, yet they are a part of the machinery of the county and State government, and as such, under certain contingencies, are required to act in concert with the county authorities proper, in the building and maintaining of bridges within their respective jurisdictions. As such corporation they can only act as a body, and not as individuals, so as to bind the body. McManus v. McDonough, 107 Ill. 95.
Section 13 of the Boad and Bridge Aet then in force provided that “ The Commissioners of Highways of each town shall meet on the second Tuesday after the annual town meeting, in each year, at the Town Clerk’s office, and afterward at such other times and places as they shall think proper. Said Commissioners shall keep a correct record of their proceedings at all meetings.”
It is seen from this section that the business intrusted to them is to be done at regular or special meetings of the Board, and that their action upon public measures pending before them is to he made a matter of record. It was undoubtedly the object of the Legislature in requiring a record to he kept, that the orders and proceedings of the Commissioners affecting the public interests shoffid be placed beyond all cavil or dispute; that there should be direct and lasting evidence thereof, and that all could see and know what had been done without resorting to the interpretation of themselves or of the Town Clerk. The Law of 1871 did not require this record, and the confusion and uncertainty regarding public affairs arising from the failure of the Commissioners to keep a record of their proceedings, led to this legislative declaration that a correct record shall be kept.
When it is remembered that by their determination of certain facts and conditions existing, they can call upon the County Board to open the doors of the county treasury and give the town aid, it may he, to the extent of many thousands of dollars, the evidence that such great power has been exercised in conformity to the statute conferring it, should not rest in the recollection of the clerk or any other witness. The County Board has the right to know that the facts have been considered in a meeting of the Commissioners and determined by them as conditions precedent to the right given by statute to ask for county aid. The duty to keep such record is declared by the act in as positive and imperative terms as is the duty imposed upon the County Board to make the appropriation demanded, and both, as we think, should receive the same construction. The statute having provided for perpetuating the evidence of the proceedings of the Commissioners, and imposing the imperative duty upon them to adopt and use the method prescribed, we are all agreed that they are limited in proving their official acts to the record they have made, and can not, in a collateral proceeding, add to or supplement the record by oral testimony of their business transactions had at their meetings. To allow this to be done would destroy that certainty and permanence in the proof of official action which is so much to be desired for the security of the public interests, and which was sought to be obtained tiy the enactment of the clause of the statute under consideration.
While there is some conflict in the adjudications of the courts upon the question whether parol testimony is admissi-, ble to establish the action of like bodies in the absence of a record, we are inclined to think that the greater weight of authority, as well as the better reason, favors the view we have taken. We refer to a few of the cases thus holding:
Mayhew v. District of Gay Head, 13 Allen, 113; Morrison, adm’r, v. City of Lawrence, 98 Mass. 219; Louisville v. McKegney, 7 Bush. 652; Board v. Chetwood, 8 Ind. 584; Jordan v. School District, 38 Me. 169; Steveson v. Bay City, 26 Mich. 44. Hnder these authorities we think the court committed no error in excluding the parol evidence offered to establish facts which ought to have been made matters of record.
Aside from this consideration, the petition to the County Board, which is made apart of the petition herein, shows upon its face that the relators had not provided one-half of the estimated cost of the bridge, as the amount that could be raised by taxation was but about §3,200, of which not less than §1,000 must be used for other purposes, and the petition for the writ in this case alleges that the facts stated in the former are true in substance and in fact.
If this averment be true, and it must so be treated as against the petitioners, it is clear that they had not complied with the statute so as to entitle them to a mandamus, under the authority of the Board of Supervisors. Board of Supervisors v. People, etc., 110 Ill. 577.
The only evidence appearing in the record that was heard upon the motion to quash the array of jurors, was the statement of the clerk, accepted as testimony by the parties, that “upon an order of the Circuit Court, Judge W. H. Snyder, Jast Wednesday, ordering me to issue a special venire for twenty-four men. Upon that order I issued the venire to the sheriff.” There is nothing in this statement of the cleric that would destroy the presumption that the contingency provided for in Sec. 12, Ch. 78, R. S., existed, which authorizes the Circuit Court to order a special venire for a jury. Every presumption is to be indulged in favor of the regularity of the action of the court, and until error is made manifest by the record its action will be sustained. Mackin v. The People, 115 Ill. 312; Blemer v. The People, 76 Ill. 265. These cases are decisive of the point here urged in the present state of this record.
We perceive no error in the rulings of the court upon the issues made by the pleadings. The judgment is, however, erroneous in awarding costs against the people and Ordering execution to issue therefor. The judgment will be affirmed and relators, in their official capacity, required to pay the costs.
Affirmed.
