ORIGINAL PETITION for mandamus.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 22, 1956.
The Attorney General has filed, pursuant to this court's leave, this original petition for mandamus against the State Treasurer to compel the latter officer (a) to receive and accept the northern Illinois toll highway revenue bonds, described in the said petition, from the Illinois State Toll Highway Commission; (b) to deliver said bonds to or upon the order of Glore, Forgan & Co. and Halsey, Stuart & Co., Inc., or any of their assignees or agents; and (c) to accept from said Glore, Forgan & Co. or Halsey, Stuart & Co., Inc., or their agents or assigns, the payment in cash for said northern Illinois toll highway bonds, at the purchase price provided for in the contract entered into between the said Toll Highway Commission and the said underwriters, and that summons issue herein as provided by law.
The State Treasurer has declined to deliver the bonds and to accept the purchase price thereof, assigning as the reason for his refusal that there is pending in the circuit court of Cook County an action by one Harold M. Quincer, an Illinois citizen and taxpayer, for a writ of mandamus against the Toll Highway Commission and its members, to compel those officers, inter alia, to rescind or expunge the resolution authorizing the issuance of the bonds and to rescind the purchase contract with certain underwriters, and to compel the State Treasurer to refrain from receiving the bonds from the commission, from delivering them to the underwriters and from accepting any sums of money in payment for the bonds.
This court sustained the constitutionality of the statute involved in People v. Illinois Toll Highway Com. 3 Ill.2d 218, 120 N.E.2d 35, decided on May 24, 1954.
In early December, 1954, the commission announced that it would make an offering of bonds in January, 1955. On December 17, 1954, one Combs and others filed a suit against the Illinois Toll Highway Commission in the Federal court, which was tried before a Federal court of three judges. With the filing of this suit, the offer and issuance of the bonds was necessarily postponed because of the pendency of that litigation. Judgment against Combs and others was entered on February 9, 1955, based upon an opinion of the three-judge court. Combs v. Illinois Toll Highway Com. 128 F. Supp. 305.
No appeal was immediately taken from that decision. On March 7, 1955, prospective bidders met with representatives of the commission in New York to work out new plans for the offering for sale of said bonds. On the day of said meeting, Combs and others filed an appeal from the three-judge-court decision to the Supreme Court of the United States.
The appeal was disposed of in the United States Supreme Court by an affirmance on the ground that the Federal questions presented were so insubstantial as to require no further argument. (Combs v. Illinois Toll Highway Com. 349 U.S. 942.) A petition for rehearing was filed on June 3, 1955, and denied on July 6, 1955. 349 U.S. 969.
New cost and engineering studies were necessary and were completed in August, 1955, and the commission announced that it would on September 2, 1955, set a date for the offering and sale of the bonds. On August 31, 1955, Combs and others filed their motion in the Supreme Court of the United States for leave to file a second petition for rehearing. Again the offer of bonds was necessarily postponed. The motion to file the second petition for rehearing was denied (76 S.Ct. 40-1), on October 10, 1955.
After leave to file the second petition for rehearing was denied by the United States Supreme Court, the commission again announced that said bonds would be offered for sale on October 25, 1955. The day before said sale, a petition for writ of mandamus was filed in the circuit court of Cook County by one E.R. Humrich, as relator, acting in the capacity of a citizen and taxpayer of the State of Illinois and one interested in having the laws properly executed. While this mandamus proceeding was pending and undetermined in the circuit court of Cook County, a petition by the Attorney General for a writ of mandamus was filed in this court in the case of People ex rel. Castle v. Taylor, 7 Ill.2d 501, and the same Humrich was granted this court's leave to file a petition, similar to his petition then pending in the circuit court, asking (a) for a separate financing of the three routes, and (b) that the resolutions of October 25, 1955, (Nos. 13 and 14,) providing for an issue of bonds aggregating $415,000,000 be expunged. Both causes were heard in this court. A writ of mandamus was issued in the Taylor case but was denied in the case filed by Humrich as relator. In neither case was a petition for rehearing filed.
After the decision of this court above referred to, the petition of Humrich as relator was dismissed by the circuit court of Cook County on motion of respondents, and a final order of dismissal entered on December 7, 1955.
After the disposition of said causes in this court, and in obedience to its writ of mandamus, the bonds were signed and the date of delivery was set for December 21, 1955.
A few days before that date, namely, on December 15, 1955, one of the attorneys who had appeared in the circuit court and in this court on behalf of relator Humrich filed another petition for writ of mandamus in the circuit court of Cook County with a different relator, the above-mentioned Harold M. Quincer, who is a resident of Boone County, and who brings his action as a citizen and taxpayer of the State of Illinois and one interested in having the laws properly executed. The Quincer petition again seeks the expunging of Resolution No. 14, authorizing the issuance, execution, authentication and delivery of the $415,000,000 northern Illinois toll highway revenue bonds above referred to and considered by this court in cases No. 33861 and 33862 decided at the November ...