Wells v. Hicks

Caton, C. J. The first question is, does the record which was offered in evidence and ruled out by the court, show the posting of the notices, as required by the second section of the twenty-fourth article of the law? We think it does. In the first place, the record shows on its face that the requisite notice had been given. There is no question that the appeal was taken in strict conformity to the law, and hence the supervisors had jurisdiction to investigate that question of notice, as well as all other questions involved in the appeal, and they found and determined that due notice had been given, and according to the case of Galena and Chicago Union R. R. Co. v. Pound, 22 Ill. 399, that is conclusive in a collateral action, as this is. Besides that, there was proof of the notice by the affidavits of the parties who posted them. It was not necessary to bring the parties who posted the notices, before the court, to prove the fact of posting. That could be proved by an ex gyarte affidavit,, the same as the service of a paper, which may become necessary in the progress of a cause. Were the rule otherwise, the death or removal of the parties who have posted notices, would endanger the location of all the roads in the country. The next question which was argued is, whether the third section, which requires the commissioners to act within ten days after the expiration of the twenty days from the posting of the notices, is mandatory or directory. This question is not necessarily presented by the record. The notices were posted on the 20th and 22nd of September, and the final decision of the commissioners bears date on the 30th day of October, but it nowhere appears that they did not in fact examine the route, before the expiration of the thirty days from the posting of the notices, and that the examination was continued and the matter held under advisement, until it was finally decided, eight days thereafter. The statute does not say that they shall finally decide the matter, within the thirty days, but that they shall set to work within that time. If, however, the question were fully presented, we should be inclined to hold that the time specified in the statute is directory, and if they fail to examine the premises, as the law requires, they can be compelled to do so. But it is unnecessary to decide that question directly now. While it is admitted that the appeal was taken strictly according to the provisions of the statute, it is complained that that does not provide for giving notice of the appeal, to the owner of the land. This is an objection against the statute, and unless we hold it is void for that reason, we can afford no relief for that cause. It was his duty to take notice of, and follow the appeal. Johnson v. Joliet and Chicago R. R. Co., 23 Ill. 202. The court erred in excluding the record. The judgment must be reversed, and the cause remanded. Judgment reversed.