The Ottawa free trader. [volume] (Ottawa, Ill.) 1843-1916, 1883-12-29

question presented WDetnet tue tOWuS VIA
build the bridge within the city without th
latter's consent or against It's ohjection--fo
In the first place. the consent Of the city Cal
II necessary, be readily obtained and IN tn
second place, the bridge now In ex,stenc
and which 1t Is proposed to rebuild, Wa
erected under and by virtue of an act G
the legislature which authorized 1t to b
built and maintained and If the towns ha
the legal right TO purchase II, they Ohtaine'
by their purchase the same right to main
tain and rebuild 1t which WAS Possessed b.
the Illinois River Bridge Company.
Before examining this question as It |
presented under the present law 1t is nee
essary to consider some of the decisions o
tho Supreme CoHrt, which are claimed 4
sustain the view that the towns have N
power to build this bridge. The princips
cases so relied upon are Tom Of Ottdtca Vi
Waiker, 81 Illinois, 605, and Commission
ers VS.. Baumgdrten, Al Illinois, GOA
la the first of those cases the question
arose a, to the validity OF Il tax levied b,
the town Of Ottawa for the building OF
bridge within the city of Ottawa ACROSS tn
Fox river near the aqueduct. The bill
filed to epjoln the tax alleged that the towr
had no right to direct the building Ut I
bridge within the city, or to raise any ta'
| therefor, or to direct concerning the loca
ton or construction of any bridge OF
bridges within the CITY Of Ottawa, and tina
the city council OF said city had never di
rected or permitted the construction OF any
bridge across Fox River at the point men
TONED. Ga the part OF the complainant
1t was claimed that the city under Its char
ter had exclusive jurisdiction over roads
streets ana bridges within Its limits. while
on the other hand 1t was claimed that tint
town under the act establishing .tow.shir
organization had concurrent Jurisdiction
over the same subjects.
After stating the provisions OF the town
ship organization law which gave the
commissioners the uperiniendence OF
says: (2l Ill. GO9)
These provisions must be construed In
reference to the object the legislature had
in contemplation at the time OF their adOp
ton. When the charter was granted to the
city, there IAN be no doubt. that it was the
design OF the legislature to confer this
power upon the city authorities. The Ian
guuge will bear no other COnstruc ton.
And when it wa. thus conferred, IL de-
privcd all other bodies Of It's exercise. Its
exercise is repugnan, to that of other au
thorltlcs and by implication repealed all
other legislation on the same subject, the
exercise of which would be repugnant to
the power granted to the city.
"And 80 much Of the act creating town.
ship organization was thereby repealed.
The power in Its very nature would seem
to be inconsistent with It's joint or concur
rent exercise by The two bodies, and even
ii the city charter was not subsequent IN
date unless it plainly appeared from the
language employed, that it was intended
To he JOINT or Concurrent, 1t would be held
that Inc power WAS exclusive in the com
mlssloners beyond the city limits and ex.
elusive IN the common council within
their urlstictlonai limits and neither
have ANY power TO perform any acts IN
reference to this subject beyond their re-
spective limits. If tue town may erect
this bridge, they may by the same author
ity open other streets IN and grade and
pave those streets and alleys already open
IN the city.
"fhc exercise OF such a power by each OF
these bodies, would necessarily lead 10 end
less strife aud confusion which the legIs
lature never could have Intended to pro-
duce by these provisions.
1t Is quite apparent that the Supreme
Court were moi called upon in that case to
decide that under no circumstances could
the commissioners Of highways OF the
town erect . bridge within the limits of the
city, but the only question presented for
h.ltr m
consent OF the city, the commissioners
could erect bridges within Its limits, wher-
ever and whenever they pleased and that
question could certainly have been decd
cd but one way. The case presented
conflict of claims between the city and
town and the reasoning OF the court can
have no application to the case IN hand.
Here there Is no conflict of claims.
Hero the bridge sought to be rebuilt
was authorized by the legislature to be
bu 1t within the city of Ottawa and the
city has never had any lawful authority over
it nor has the question of conflict Of au-
thOrlty ever arisen.
To decide that the towns may, with the
assent, express or implied, OF the city re
build this bridge, in NO manner makes it
necessary To decide that the towns can
build all the bridges they see fit within the
city and against the city's consent. Hence,
though some portions of the language EN-.
ployed by the Supreme Court IN the case
cited may seem to indicate an opinion of a
want of power IN the town to build any
bridge located within the city, yet that
language was unnecessary to the decision
OF the case ana must be treated as mere
dictuW.
In the case of Commissioners vs. Baum
gdrten, supra, u bill was filed to enforce a
contract between Baumgarten and the city
OF Freeport ana tho Commissioners of the
town Of Lancaster for the building of
bridge over stream between the city of
Freeport aud the town. The contract pro.
vided that The bridge should be paid for by
the town ard the city in proportion as the
laws Of the state made them respectively
liable. Sixty feet of the bridge was within
the town and that proportion ei Its cost the
town paid. 1t was claimed, however, that
as the bridge was multi on stream divid.
ing the towns of Freeport and Lancaster,
the latter was legally boundto pay one half
its cost. The statute under which this
claim was made was Section l8 of Article
XVII ct the Act of 1861, which was as
follows:
whenever any adjoining town shall be
liable to make or maintain any bridge or
Do. ak~ IL n