Commissioners of Highways v. Bear

Mr. Chief Justice Scott delivered the opinion of the court: The request of certain petitioners to be allowed to withdraw their names from the petition for the alteration of the road having been first made after the commissioners of highways had passed upon the petition, came too late. A motion of this kind, made by a part, only, of the petitioners, could not be allowed by the supervisors on appeal unless it had been made in apt time before the commissioners. Littell v. Board of Supervisors, 198 Ill. 205; Mack v. Polecat Drainage District, 216 id. 56; Kinsloe v. Pogue, 213 id. 302; Black v. Campbell, 112 Ind. 122. Section 51 of chapter” 121, Hurd’s Revised Statutes of 1905, authorizes persons interested to offer inducements for the alteration of any road by entering into contracts with the commissioners of highways, conditioned upon the alteration of the road, to pay money or other valuable thing to the town for the benefit of the road and bridge fund. Section 60 of chapter 121, supra, gives to the supervisors the power to enter into the same kind of contract with interested parties offering inducements, the money to be payable as specified by section 51, supra. The supervisors, however, had no authority to collect the money offered as an inducement. The payment to them does not constitute an acquittance of the parties paying, but the highway authorities may proceed either against the persons who offered the inducements or against the supervisors for the collection of the sums paid to the latter. Nor had the supervisors authority to disburse the money. There is not, however, anything in the record attacked in this proceeding to indicate corruption or bad faith on their part. They evidently collected the money and paid it out under a misapprehension in regard to the rights and powers conferred on them by the law. It is not seriously contended in this court that the receipt and disbursement of this money by the supervisors makes illegal their record altering the road. Counsel for plaintiffs in error say in reference thereto: “It may be doubted whether the illegal and wanton misappropriation of the funds contributed by land owners, in the manner shown by the record these three supervisors have made, is sufficient cause for the court to set aside all proceedings had under the appeal,” but that such a violation of the statute “cannot strengthen them any in this case.” The statement of the supervisors’ receipts and disbursements was improperly included in the final order altering the road. It had no proper place there in any event, but it does not affect that portion of that order which provides for the alteration, and is therefore surplusage. The sufficiency of the record is not affected by that surplusage, nor by the fact that the supervisors received and disbursed the $200 without being lawfully authorized so to do. The judgment of the circuit court will be affirmed. Judgment affirmed.