Mr. Justice Niehaus
delivered' the opinion of the court.
In this case, a petition for mandamus by the People of the State of Illinois on the relation of James M. Greene and others, including residents and taxpayers of Wapella and Clinton in De Witt county, was filed in the Circuit Court of Sangamon county against the appellees, the Department of Public Works and Buildings, and Cornelius N. Miller, as Director of Public Works and Buildings, and Frank P. Sheets, as Superintendent of the Highways of the State. It is alleged in the petition that the appellees have materially and arbitrarily changed a part of route No. 2, one of the main routes provided for by the “Hard Beads Act” of 1917, namely, that part of the route which was designed to connect the Villages of Hey worth and Wapella with the City of Clinton; and that the changes were made in violation of the provisions of the Act referred to. The petition prays that the appellees may be compelled by mandamus to relocate that part of the route No. 2 designated, in such a manner as to comply with the provisions of the Act. A demurrer to the petition was interposed in the court below and was sustained by the court; and the court rendered judgment dismissing the petition and assessing costs against the relators. This appeal is prosecuted from the judgment.
It is argued by the appellees that the averments of the petition, concerning the arbitrary changes in the route at the points mentioned, are not allegations of fact, but mere conclusions of the pleader; and that the petition does not show that the changes made were not such minor changes which, in the exercise of the discretion, the Department of Public Works and Buildings had authority to make in locating Boute 2. The Act referred to is: “An Act in relation to the construction by the State of Hlinois of a State-wide system of durable hard-surfaced roads upon public highways of the State and the provision of means for the payment of the cost thereof by an issue of bonds for the State of Illinois” and was adopted by a vote of the People November 5, 1918. Section 1 [Cahill’s Ill. St. ch. 121, ff 183] of the Act, provides that a. Statewide system of durable hard-surfaced roads be constructed by the State of Illinois as soon as practicable, upon the public highways of the State; and along the routes described therein, as near as may be. Section 2 [Cahill’s Ill. St. ch. 121, [¶] 184] provides that the construction of this system of roads, and all work incidental thereto, shall be under the general supervision and control of the Department of Public Works and Buildings, subject to the approval of the Governor of the State; also, that the Department of Public Works and Buildings shall have power to make, and shall make final decisions affecting the work provided for in this section, and all rules and regulations it may deem necessary for the proper management and conduct of the work, and for carrying out all of the provisions of the Act in such manner as shall be to the best interest and advantage of the People of the State; and section 9 [Cahill’s Ill. St. ch. 121, 191] provides: “That the general location of the routes upon and along which said proposed roads are to be constructed shall be substantially as described in this section, so as to connect, with each other, the different communities and the principal cities of the State: Provided, however, that said Department of Public Works and Buildings shall have the right to make such minor changes in the location of said routes as may become necessary in order to carry out the provisions of this Act.” The location of route No. 2 is described in this section as: “Beginning in a public highway near Beloit, Wisconsin, and running along such highway in a general southerly direction to Cairo, affording Bockford, Oregon, Dixon, Mendota, Peru, La Salle, El Paso, Bloomington, Clinton, Decatur, Pana, Vandalia, Centraba, Duquoin, Carbon-dale, Anna, Cairo and the intervening communities reasonable connections with each other.” The petition alleges, concerning the propriety of the changes made, that the Village of Wapella is an incorporated village, under the general incorporation laws of the State, with a population approximately of 600 people, and is situated about five miles practically due north of the City of Clinton; that the cities of Bloomington, Clinton and Decatur are connected with a direct line of highways known as the Meridian Trail; and that the Meridian Trail is the main traveled highway for horse drawn and motor vehicles between the cities of Bloomington and Decatur, and particularly between the Village of Wapella and City of Clinton; and is a well improved, well kept and maintained highway, particularly that portion thereof from the Village of Wapella to the City of Clinton; that the Meridian Trail from Wapella to Clinton runs through a level prairie country its entire distance, with the exception of a small hill a short distance north of Clinton; and with no dangerous turns or dangerous curves therein; that this public highway, and particularly, that portion thereof, between the Village of Wapella and the City of Clinton, is the only main public thoroughfare for public travel for horse drawn and motor vehicles between the said Village of Wapella and City of Clinton, and is so constructed as to have as few grades and turns as is practical and consistent with the safety and welfare of the traveling public, and serves the traveling public between the City of Clinton and the Village of Wapella to the greatest advantage; and that the Meridian Trail passes through the east portion of the Village of Wapella; and from Wapella to Clinton, about a quarter of a mile east of the Illinois Central Railway, and the Illinois Traction system; and runs practically due north and south to a point about one and a half miles north of the City of Clinton, at which point the highway crosses said lines of railway and' comes to a point about 200 yards west of the right of way of the Illinois Traction system, from which point said trail or highway runs practically straight and directly into the City of Clinton, on a street known as Center Street, thus passing through the public square and the main built-up business and residence portion of the City of Clinton. The petition also avers that, notwithstanding the advantages of the highway in question to furnish this reasonable connection between the Village of Wapella and City of Clinton, the Department of Public Works and Buildings refused to locate said hard-surfaced road therein, but arbitrarily, and without any good and sufficient reason therefor, has had a road surveyed through the County of De Witt in the State of Illinois, different from that provided by the terms of the Act; and is now attempting to procure, and have procured, rights of way for the purpose of constructing said hard-surfaced route No.
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Mr. Justice Niehaus
delivered' the opinion of the court.
In this case, a petition for mandamus by the People of the State of Illinois on the relation of James M. Greene and others, including residents and taxpayers of Wapella and Clinton in De Witt county, was filed in the Circuit Court of Sangamon county against the appellees, the Department of Public Works and Buildings, and Cornelius N. Miller, as Director of Public Works and Buildings, and Frank P. Sheets, as Superintendent of the Highways of the State. It is alleged in the petition that the appellees have materially and arbitrarily changed a part of route No. 2, one of the main routes provided for by the “Hard Beads Act” of 1917, namely, that part of the route which was designed to connect the Villages of Hey worth and Wapella with the City of Clinton; and that the changes were made in violation of the provisions of the Act referred to. The petition prays that the appellees may be compelled by mandamus to relocate that part of the route No. 2 designated, in such a manner as to comply with the provisions of the Act. A demurrer to the petition was interposed in the court below and was sustained by the court; and the court rendered judgment dismissing the petition and assessing costs against the relators. This appeal is prosecuted from the judgment.
It is argued by the appellees that the averments of the petition, concerning the arbitrary changes in the route at the points mentioned, are not allegations of fact, but mere conclusions of the pleader; and that the petition does not show that the changes made were not such minor changes which, in the exercise of the discretion, the Department of Public Works and Buildings had authority to make in locating Boute 2. The Act referred to is: “An Act in relation to the construction by the State of Hlinois of a State-wide system of durable hard-surfaced roads upon public highways of the State and the provision of means for the payment of the cost thereof by an issue of bonds for the State of Illinois” and was adopted by a vote of the People November 5, 1918. Section 1 [Cahill’s Ill. St. ch. 121, ff 183] of the Act, provides that a. Statewide system of durable hard-surfaced roads be constructed by the State of Illinois as soon as practicable, upon the public highways of the State; and along the routes described therein, as near as may be. Section 2 [Cahill’s Ill. St. ch. 121, [¶] 184] provides that the construction of this system of roads, and all work incidental thereto, shall be under the general supervision and control of the Department of Public Works and Buildings, subject to the approval of the Governor of the State; also, that the Department of Public Works and Buildings shall have power to make, and shall make final decisions affecting the work provided for in this section, and all rules and regulations it may deem necessary for the proper management and conduct of the work, and for carrying out all of the provisions of the Act in such manner as shall be to the best interest and advantage of the People of the State; and section 9 [Cahill’s Ill. St. ch. 121, 191] provides: “That the general location of the routes upon and along which said proposed roads are to be constructed shall be substantially as described in this section, so as to connect, with each other, the different communities and the principal cities of the State: Provided, however, that said Department of Public Works and Buildings shall have the right to make such minor changes in the location of said routes as may become necessary in order to carry out the provisions of this Act.” The location of route No. 2 is described in this section as: “Beginning in a public highway near Beloit, Wisconsin, and running along such highway in a general southerly direction to Cairo, affording Bockford, Oregon, Dixon, Mendota, Peru, La Salle, El Paso, Bloomington, Clinton, Decatur, Pana, Vandalia, Centraba, Duquoin, Carbon-dale, Anna, Cairo and the intervening communities reasonable connections with each other.” The petition alleges, concerning the propriety of the changes made, that the Village of Wapella is an incorporated village, under the general incorporation laws of the State, with a population approximately of 600 people, and is situated about five miles practically due north of the City of Clinton; that the cities of Bloomington, Clinton and Decatur are connected with a direct line of highways known as the Meridian Trail; and that the Meridian Trail is the main traveled highway for horse drawn and motor vehicles between the cities of Bloomington and Decatur, and particularly between the Village of Wapella and City of Clinton; and is a well improved, well kept and maintained highway, particularly that portion thereof from the Village of Wapella to the City of Clinton; that the Meridian Trail from Wapella to Clinton runs through a level prairie country its entire distance, with the exception of a small hill a short distance north of Clinton; and with no dangerous turns or dangerous curves therein; that this public highway, and particularly, that portion thereof, between the Village of Wapella and the City of Clinton, is the only main public thoroughfare for public travel for horse drawn and motor vehicles between the said Village of Wapella and City of Clinton, and is so constructed as to have as few grades and turns as is practical and consistent with the safety and welfare of the traveling public, and serves the traveling public between the City of Clinton and the Village of Wapella to the greatest advantage; and that the Meridian Trail passes through the east portion of the Village of Wapella; and from Wapella to Clinton, about a quarter of a mile east of the Illinois Central Railway, and the Illinois Traction system; and runs practically due north and south to a point about one and a half miles north of the City of Clinton, at which point the highway crosses said lines of railway and' comes to a point about 200 yards west of the right of way of the Illinois Traction system, from which point said trail or highway runs practically straight and directly into the City of Clinton, on a street known as Center Street, thus passing through the public square and the main built-up business and residence portion of the City of Clinton. The petition also avers that, notwithstanding the advantages of the highway in question to furnish this reasonable connection between the Village of Wapella and City of Clinton, the Department of Public Works and Buildings refused to locate said hard-surfaced road therein, but arbitrarily, and without any good and sufficient reason therefor, has had a road surveyed through the County of De Witt in the State of Illinois, different from that provided by the terms of the Act; and is now attempting to procure, and have procured, rights of way for the purpose of constructing said hard-surfaced route No. 2 in such a way as not to give reasonable connection between the communities of Heyworth and Wapella along said route, that between Wapella and Clinton said route is diverted from the main public highway mentioned to a road which is not a main traveled road, for a distance of about one-sixteenth of a mile; and then proceeds for about three-quarters of a mile along a section line, but over no existing road or highway, to a point about one fourth of a mile to the comer of certain sections of land, where it will be necessary for the proposed road to make a jog to the west of a cemetery; and thereafter, the proposed road proceeds south along a public highway, which is not a main traveled highway, to a point approximately one-half a mile north of a congressional township line, from which point the proposed route proceeds south on the section line between two fractional sections to the congressional township line, and over no existing highway; and that, on said township line, the proposed route makes a jog or bend to the east over no existing highway for a distance of a few rods to the north; and then proceeds south along the section line, and over no existing public road or highway, to the township line between the towns of Clinton and Wapella ; and from that point it proceeds south on a public road to a section line, to a point about one hundred sixty rods south; and at that point jogs or bends to the east for a distance of approximately one quarter of a mile, following the public road mentioned; and then proceeds south along the route of an existing road to the corporation line of the City of Clinton; thence jogging to the west along a road and along the corporation line of the City of Clinton for about a quarter of a mile; and thence south along the west corporation line of the railroad track of the Illinois Central Railroad Company, or going by subway under said tracks, or by elevation over said tracks; that said proposed route to be used for said hard-surfaced road, from the De Witt county line to the north line of the town of Clinton, being a distance of approximately four and a quarter miles, runs over a territory where there is not, and never has been, any public highway for a distance of one and one-fourth miles; and said proposed route is located at least one-half mile west of the westerly boundary line of the Village of Wapella; and following the now established roads, it is by the usual and only traveled route, practically one and one-fourth miles from the center of the Village of Wapella to the route proposed; instead of following the usual traveled road between the Village of Wapella and the City of Clinton, namely, the Meridian Trail, the proposed route is located more than a mile west of said Meridian Trail, and is built through a rough portion of the country from Wapella to Clinton, and runs along the west boundary, line of the City of Clinton, so that if the road is built only about one-half would be ip the actual built portion thereof; and the remainder would be outside of the corporate limits of the City of Clinton; and in that portion which would be in the City of Clinton, would be in its outskirts and environments; that the proposed route, or a portion thereof, immediately north of Wapella, traverses a sparsely settled community, over timber country and timberland, necessitating the construction, at an extravagant cost, of a great number of fills and grades, and the climbing of a large number of hills; and that portion of the proposed route immediately meandering south of the City of Clinton, for a distance of about a mile, is over a wet and swampy portion, and through great hills, and over territory not generally used by the City of Clinton, nor by any community or the traveling public, and over no established road; and that from a point within a mile south of the City of Clinton, the cost of constructing the proposed hard roads would amount to at least $200,000 in excess of the cost of constructing the road on the Meridian Trail Highway between the City of Clinton and the Village of Wapella; that the proposed route does not afford any more direct line of travel than the line of the Meridian Highway, nor is it any more safe for travel by reason of the avoidance of grade crossings through the Village of Wapella and the City of Clinton than the highway mentioned, but crosses the Illinois Central Railroad at what is known to be the most dangerous crossing in the City of Clinton; that the route as proposed will be an unnecessary burden upon the taxpayers and a waste of the state funds; that the expense of the maintenance of the proposed route in the future, by reason of the grades and fills required, wdll make an unnecessary burden upon the taxpayers, and will not afford the City of Clinton and the Village of Wapella reasonable connections with each other; and that, by the location of the proposed route, certain landowners along the proposed route are favored to the great injury and damage of the people, and the taxpayers of the state.
The matters recited, which are stated as facts, in the petition, are admitted "by the demurrer and appear to be legally sufficient to require an answer from the appellees, either that the charges made are not true, or a showing that the proposed route, away from the main traveled highway, is merely a minor change which is necessary to carry out the provisions of the Act. It is clear that the Act contemplates that the hard-surfaced roads be constructed as far as practicable upon the public highways; and as near as may be on the main traveled highways, so as to be of service to the largest number of people, and so as to give reasonable connection between the cities named, and the intervening communities, between such cities along the route; and the Board has no discretion to locate them otherwise, either in whole or in part, but has authority only to make such minor changes in the location of the routes as may become necessary in order to carry out the provisions of the Act. The just and reasonable inference to be drawn from the averments of the petition is that the changes made are not minor changes, nor necessary in order to carry out the provisions of the Act; and that the proposed route does not furnish the reasonable connection contemplated by the Act, between the intervening communities of Heyworth and Wapella, with the City of Clinton; and which would result from using the main traveled highway between the points mentioned.
We are of opinion, therefore, that the court erred in sustaining the demurrer and dismissing the petition; and the judgment is therefore reversed and the cause remanded with directions to overrule the demurrer.
Reversed and remanded with directions.