County of DuPage v. Commissioners of Highways

142 Ill. 607

• Court: Illinois Supreme Court
• Decided: October 31, 1892
• Status: Published

Opinion

Mr. Justice Baker

delivered the opinion of the Court:

This was mandamus brought by appellees, the commissioners of highways of the town of Winfield, to compel the board of supervisors of the county of DuPage to appropriate from the county treasury the sum of $1081.60, the same being one-half the expense of constructing a bridge and its approaches across the DuPage river, on a public road, at Gary’s Mills, in said town. ’ The petition for the mandamus was based on the provisions of section 19 of the act in regard to roads and bridges in counties under township organization, approved June 23, 1883, and in force July 1, 1883. Laws of 1883, pp. 142,143.

It seems that on or about the 8th day of February, 1887, tlte bridge that had theretofore spanned the river at Gary’s Mills was washed away by high water; that on the 8th day of March, 1887, the commissioners "of highways of the town of Winfield filed with the county clerk a petition, addressed to the county board, and asking for county aid in the rebuilding of the bridge; that on July 11, 1887, the board of supervisors refused such aid; that on July 25, 1887, said commissioners of highways- filed with the county clerk a" supplemental petition, again asking the county to aid in the rebuilding of said bridge; and that on September 13, 1887, the board of supervisors again refused to grant aid, and thereupon this petition for a writ of mandamus was filed in the circuit court of said DuPage county. The averments of said petition stated a case within the provisions of the section of the statute referred to above, and the county of DuPage, appellant herein, interposed an answer, which traversed all the material allegations of such petition. A jury was waived, and the issues joined between the parties were submitted to the court. The court found such issues in favor of appellees, and rendered a final judgment against the appellant and awarded a peremptory writ of mandamus, commanding the appropriation from the county treasury of said sum of $1081.60. The judgment so rendered was afterwards affirmed in the Appellate Court for the Second District.

One of the assignments of error here made is, that the Appellate Court erred in not reversing the judgment of the circuit court because of the refusal of the latter court to admit proper evidence offered by appellant. We are unable to find, either in the abstract or in the record, that appellant made any offer to introduce any testimony whatever that was denied by the court, and in the briefs and arguments our attention is not called to any such refusal. We therefore conclude that this assignment of error was inadvertently made.

Another of the assignments of error is, that the Appellate Court erred in not reversing the judgment because of the admission by the circuit court of improper evidence on behalf of the petitioners, over the objections of the appellant. From the briefs and arguments that are filed we understand that this assignment of error has reference to the admission in evidence of the record of a meeting of the commissioners of highways of the town of Winfield held on the 16th day of September, 1889, and of an amended record of a meeting of said commissioners held on the 1st day. of March, 1887.

Section 10 of the act of June 23, 1883, provides that the town clerk shall be ex officio clerk of the board of highway commissioners, and shall keep a record of all the official acts and proceedings of the board in a well-bound book to be provided for that purpose; and the two records now in question were contained in and read from a book which was identified as the record book of the commissioners of highways of the town of Winfield. Said two records were offered and introduced in evidence together, counsel for the highway commissioners stating at the time that the amendment in the record of the proceedings of the meeting of March 1, 1887, was inserted pursuant to the vote of said commissioners, at the meeting of September 16, 1889, to correct the record of said meeting of March 1. One of the two records so read in evidence was as follows:

“At a meeting of the commissioners of highways of the town of Winfield, duly called and held on the 16th day of September, A. D. 1889, C. D. Clark was appointed clerk pro tem, the clerk being absent from the county, and thereupon it was, on motion, duly and unanimously voted that the minutes and records of the previous meeting of the hoard be amended and corrected to correspond with the fact, by inserting the following on page 398, before the record of the bridge contract: It being necessary to construct a new bridge across the DuPage river, in said town, at Gary’s Mills, so called, immediately, and a delay in So. doing being detrimental to the public interest, and the cost of such new bridge being more than twenty cents on the $100 on the latest assessment of said town, and the levy of the road and bridge tax for this year being for the full amount of sixty cents 'on each $100 allowed by law for the commissioners to raise, and the major part of which is needed for the ordinary repairs of roads and bridges,- unanimously voted that such bridge be immediately built as provided by law, and that aid be asked of the county board, as provided by statute.”

And the other of said records ivas as follows:

“At a meeting of: the commissioners of highways held on the first day of March, A. D. 1887, at Gary’s Mills bridge site, for the purpose of letting the contract of building a high truss iron bridge over the DuPage river, there were present, H. H-. Martin, B. S. Chandler and F. J. Hageman. It being necessary to construct a new bridge across the DuPage river, in said town; at Gary’s Mills, so called, immediately, and a delay in doing so being detrimental to the public interest, and the cost of such new bridge being more than twenty cents on the $100 on the latest assessment of said town, and the levy of the road and bridge tax for this year being for the full amount .of sixty cents on each $100 allow’ed by law' for the commissioners to raise, and the major part of which is needed for the ordinary repairs of roads and bridges, unanimously voted that such bridge be immediately built as provided by law, and that aid be asked of the county board as provided by statute.”

The record does not show that any objection, either general or specific, was made in the trial court to the introduction in evidence of these records, or either of them. If there was any valid objection to their admission it must be considered that it was waived by appellant. We have so often held, in actions and proceedings at law, that where no objection to the admission of testimony is made in the court below an objection to it -can not be urged for the first time on appeal or error, that a citation of authority to that effect is deemed wholly unnecessary. We can not assume that if objection had been made appellees would have been unable to satisfactorily show the amendment was made by or under the direction of the same town clerk who was in office when the meeting of March 1, 1887, was held, and whose duty it was to make a full and correct record of all the proceedings of said meeting, and made while he was still in office as such clerk, and therefore under the sanction of his oath of office, and perhaps even made from written memoranda or minutes made and kept by him, or, in the event such clerk was .prevented, by death or other necessity, from perfecting the record, unable to show such amendment was made by order and direction of the same highway commissioners by whom the proceedings had at the first meeting were transacted, acting officially at a meeting of the board, and to supplement the record of such order and direction with evidence that justified the making of the same. It follows that appellant can take nothing by the assignment of error under -consideration, and for the reason that it has no sufficient basis in the facts of the trial as disclosed by the record.

It is claimed to be error th.at the Appellate Court did not reverse the finding and judgment of the circuit court, on the .ground that they were contrary to the law and the evidence in the case. It sufficiently disposes of this claim to say, that under the statute the judgments of the Appellate and circuit -courts conclusively settle all questions of fact in favor of appellees, and that no questions of law were preserved at the trial by the submission of propositions in writing to be held or refused by the court. Bridge Co. v. Comr's. of Highways, 101 Ill. 518; Fitch v. Johnson, 104 id. Ill; Edgerton v. Weaver, 105 id. 43; National Bank v. National Bank, 131 id. 547, and authorities there cited.

It is urged that it was error to award, upon the record as it stands, a peremptory writ of mandarhus against the county. On July 11, 1887, the board of supervisors refused to grant the aid that was asked in the first petition of the highway commissioners, and on September 13 of that year, a supplemental petition having been presented, they again refused to aid in the construction of the bridge. As we have already seen, it was conceded by appellees in open court that the amendment of the record of the proceedings of the meeting of March 1, 1887, was not made until on or after September 16y 1889, and so it necessarily follows that at the times of the filing of each of the petitions for aid, and at both of the times that the board of supervisors refused' to grant aid, there was on the records of the proceedings of the highway commissioners no record whatever of any action taken by the highway commissioners in conformity with the requirements of the statute granting aid.

In The People ex rel. v. Madison County, 125 Ill. 334, it was held that the determination by the commissioners of highways that a necessity exists for the construction or repair of a bridge, which will serve as the basis of an application to the county board for county aid under the statute, is the exercise of a corporate power vested in the commissioners, which can only be exercised at a meeting of such commissioners, and only be shown by the record of their proceedings required by the law to be made and kept. The question there at issue was whether or not parol evidence is admissible for the purpose of showing the official action of the highway commissioners in the premises, and it was held it was not. In discussing that question the court said: “Before the county board could be legally moved in the- matter, or any legal duty be cast upon them, the commissioners must have determined that such necessity existed, and have preserved the evidence of that fact in their record. In the proceeding then before the circuit court, the corporation (the commissioners of highways) could only speak by their record, unaided by parol testimony.” In the proceeding at bar the commissioners spoke in the circuit court only by their record, but by that record as amended.

By the language above quoted from the opinion in the Madison County case it was not intended to intimate that upon the trial of the issues there joined, which are substantially like those here joined, an amended record of the proceedings of a board of highway commissioners would not be competent evidence. Where the official action which is the subject of a proposed amendment has in fact been had, but by reason of some accident or oversight, or for some other cause, has been omitted by the clerk from the record of the proceedings of the board, both reason and the aúthorities show that it is competent to amend the record to correspond with the fact, and that when such amendment is made the record as amended, unless impeached, is conclusive. Welles v. Battelle, 11 Mass. 476; Hartwell v. Littleton, 13 Pick. 229; Boston Turnpike Co. v. Town of Pomfret, 20 Conn. 590; Hutchinson v. Pratt, 11 Vt. 402; Mott v. Reynolds, 27 Vt. (1 Williams,) 206; Chamberlain v. Dover, 13 Me. 466.

In the case at bar it is conclusively shown by the amended record that prior to the presentation of either of the petitions for county aid the highway commissioners had officially determined that it was necessary to construct a new bridge immediately, and that a delay in so doing would be detrimental to the public interest; that the cost of such new bridge would be more than twenty cents on the $100 on the latest assessment of the town; that the levy of the road and bridge tax for the year was for the full amount of sixty cents on each $100 ■allowed by law for the commissioners to raise, and that the major part of this was needed for the ordinary repairs of roads and bridges, and that said commissioners had unanimously voted that such bridge should be immediately built as provided •by law, and that aid should be asked of the county board as provided by statute. But it appears from the record in this cause that said official determinations, acts and proceedings of the highway commissioners had not, at the times when the applications for aid were made and refused, been entered upon the record of the proceedings of said commissioners. It is manifest from the record in this cause, taken as a whole, that the highway commissioners have a meritorious case, and that it is just and right that the county should pay one-half the cost of the bridge and its approaches. Does the delay in recording the determinations, acts and proceedings in question preclude appellees from having a peremptory writ of mandamus awarded to them in this suit ? In our opinion it should be held that it does not. In denying the first petition for aid, the county board stated upon their records the grounds for such denial. The reasons given for refusing assistance were, that the reasonable cost of the bridge would not exceed twenty •cents on the $100 of the last year’s valuation; that the levy for road and bridge purposes in the town was less than sixty cents on the $100, and that the major part of the sixty cents was not needed for ordinary repairs of roads and bridges. The reasons stated upon the record for denying the supplemental petition for aid were, that no emergency existed justifying the construction of the bridge before applying to the county board for aid, that the contract price and amount expended for the bridge were more than' was necessary for the purpose, and that the major part of the tax levies was not needed for ordinary repairs of roads and bridges. No claim was made by the board of supervisors, either that the highway commissioners had not officially ascertained and determined the necessary statutory facts, or that their acts and ■determinations in that behalf had not been entered upon the record of their proceedings.

The case at bar is materially different from The People ex rel. v. Madison County, supra. Here the commissioners did in due time, officially and as a board, ascertain and determine the statutory facts essential to a right to call on the county for aid, and proved the same by introducing in evidence the record of their proceedings in that behalf. In the Madison County case, on the contrary, no record evidence was- produced to show that the then commissioners had ever taken official action such as the statute required, and it was sought to show such action by oral testimony. The first sentence of the language quoted above from the opinion in that case is to be read in connection with the next succeeding sentence, and is to be .■considered in the light of the questions then under examination, the necessity of official action on the part of the commissioners, and of record evidence of such action. Here, we see no good reason why the amended record should not be held to speak as of the day when the proceedings which it records were in fact had, and as appellant, in refusing the aid that was asked for, did not base its refusal on the ground that there had been no such proceedings, or on the ground that they had not been entered upon the records of the commis•sioners, we are unable to see that allowing the amended record so to speak works any injustice or hardship to appellant. We think that there was no error in awarding a peremptory mandamus.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.