The Ottawa free trader. [volume] (Ottawa, Ill.) 1843-1916, 1869-05-01
Care Of the Canal Bridge.

bo compelled to take charge OF, tend and keep IN
repair the two swing bridges built year ago
across the main canal at Ottawa by tax levied
upon the township Of Ottawa, has been definitely
dec,ded in the affirmative by the Supreme
Court, to whom the question was submitted.
The history Of the case is 50 we'll known TO most
Of our people that we need rehearse it but briefly
About three years ago an earnest movement
was made to have two new bridges built across
the main canal at Ottawa,-one east and one
west of the La Sale street bridge. The city
council, we believe, asked the legislature, then
in session, for power to levy . special tsx to
build such bridges. When the law came back
from Springfield, however, to the surprise and
indignation Of tho city council, 1t took ont Of
their hands all "say" in the matter, but conferred
the power to levy the tax, locate and let the con-
tract for building the bridges, &C., on three COM
missioners, who, when all was done and paid for,
were to turn the bridges over to the city to take
charge Of and run them.
The commissioners, without consultation with
the city council, proceeded to exercise the powers
conferred on them. They located and let the
"oASAoSs AoI eAO cEcCLAOu VI tWO pCCOt UIluSeS,
against which the council vainly demonstrated,
preferring high bridges, and levied tax Of some
$14,500 to pay for them. The city undertook to
enjoin the collection of the tax but as, about
that time, the Glass Company was organized,
and the stoppage Of the erection Of the Walnut
street bridge threatened defeat that enterprise,
the suit was withdrawn. The pivot bridges were
then erected, and last spring turned over by the
commissioners to the city to keep them in repair
and run them. The city refused to accept them,
and for some time the bridges were allowed to
stand swung open in the middle of the canal
without any use being made of them.
Finally Judge Cation, on behalf of the Glass
Company, applied to the Circuit Court for
naaada,nus to compel the city council to take
charge of the bridges. The council instructed
the city attorney to contest the suit, but mean.
time, on stipulation that its case should not
thereby be prejudiced, agreed to take charge of
the bridges until the suit should be determined.
| The case was heard before Judge Richmond,
Judge Leland being one of the commissioners,
| and therefore incompetent to hear the case) and
decided against the city; whereupon the city
took an appeal to the Supreme Court
The case was argued at the last September
term, but not decided until the present week,
when the Judges Of the Supreme Court, now sit
ting at Ottawa in Chambers, fled their opinion
in the case. The opinion, in which all the judg.
es concur, was prepared by Oh. J. Breese, and is
quite lengthy. The essential part Of it, howev.
er, is contained in the extracts given below.
The points made by the city against granting
the mandamus were as follows:
1. That the act Of the Legislature is unconsti-
tutional and void, they having no power to ap-
point commissioners to levy tax on the town Of
Ottawa, or to authorize the Board of Supervisors
| to levy such tax. t,at
2. That the act of the Legislature embraces
more than one subjec,, and neither of the sub.
| iects is embraced in the title.
3. That it is discretionary with the city coun.
Gil to take charge Of these bridges
4. That the REALTORS have an adequate legal
remedy against the city, if any wrong has been
committed BY It against the relators. m II ea.ts
i 8. The writ does not show . sufficient legal
interest in the things sought to be done to enti.
tie them 70 this writ 49, ,faes.
Judge Breese takes these points up in their
order and disposes Of them as follows:
l. We consider the first point settled by the
case of Dssns '. Maynard, Is III. Az, where .
similar law was upheld by this court.
2. The second point ia not tenable, for the sub
ject-that Of building two bridges across the
canal at Ottawa-is embraced in the title. The
adjuncts TO that subject are not required to be
expressed, or the moius 0perdndi. - +.
3. Whether it is discretionary or not with the
city council TO take charge Of the bridges, which
is the third point made by appellants, must be
determined by reference to the act ITSELF BY
the first section of the act it is provided that
these bridges, when constructed, shall be main.
tanned, repaired and (if pivot bridges shall be
built opened for the passage Of boats by the city
| Of Ottawa. Hero the duty is distinctly imposed
| upon the city to maintain and keep in repair
these bridges, and It would follow, as y legiti-
mate consequence, that they were to close them
for the passage of travellers by land. They have
no discretion about it, but the duty is imperative
4. "Right here" continues Judge Breese,
"arises the important question, does ndndamHs
lie to compel the city to perform this duty ="
The point is considered at some length, and after
weighing all the authorities, he arrives ut the
conclusion: "That, when there Is q discretion to
| act the writ will not be awarded. In this case
the city council have no discretion the duty is
imposed on them by special law, from the per-
formance Of which they cannot shrink
4 ~ The act of the legislature pro.
vides no remedy for the refusal Of the city to
take charge Of those bridges, and that it is Of the
utmost Importance, not only to the rela.ors but
TO the public, and to the state at large, that they
should be taken proper care -f and tended, is
1 undeniable: and as we do not see the way clear
for any other remedy, we must conclude man.
9amns is The proper Que" 1