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Burnidge Bros. Almora Heights v. Wiese





Appeal from the Circuit Court of Kane County; the Hon. John L. Nickels, Judge, presiding.


Plaintiff, a development corporation (developer), sought to compel the defendants, the Plato Township highway commissioner (commissioner), the Plato Township Road District (district), and the Plato Township Board (board) by petition for writ of mandamus in the circuit court of Kane County to provide street lights for its Plato Township subdivision known as Catatoga III. The court granted the defendants' cross-motion for summary judgment based on this court's decision in A.S. Schulman Electric Co. v. Village of Fox Lake (1983), 115 Ill. App.3d 746, that even though a municipality may be otherwise empowered to enter into a contract to provide street lighting, the contract as executed will be void unless a specific appropriation for that purpose has been made. The court found that no specific appropriation for the street lights at issue was made.

The developer does not argue that there is a genuine issue or issues of material fact which would require that this court reverse and remand the cause for trial. It argues, however, that there is a duty which has vested in the office of the Plato Township highway commissioner, who is also an officer of Plato Township and the Plato Township Road District, to provide for lighting of the public roads in Catatoga III, and that mandamus may properly issue to compel performance of that duty. Defendants counter that the commissioner's discretion to provide for street lighting is neither bound by the action of his predecessor commissioner nor subject to writ of mandamus, nor is the board's discretion in the matter of the annual appropriation ordinance and tax levy bound by the recommendation of the commissioner nor subject to a writ of mandamus.

The pleadings, depositions, admissions and affidavits on file contain the following admitted facts, which are presented in summary fashion for purposes of this opinion.

The Plato Township Road District is comprised of a single township, Plato Township. At the time plaintiff's petition for mandamus was filed, Carlton Wiese was the Plato Township highway commissioner. By statute, the Plato Township highway commissioner is also an officer of Plato Township. (Ill. Rev. Stat. 1983, ch. 121, par. 6-112.) Wiese was preceded as commissioner by Frank Brizzolara and, before him, William Hulke. In the initial platting phase of Catatoga III, Hulke had some discussions with Logan Burnidge, developer's president, concerning street lighting for the subdivision. In 1979, Hulke resigned his position, and Frank Brizzolara was appointed highway commissioner. Hulke told Brizzolara that there were to be street lights in Catatoga III, and that it was up to Brizzolara to approve or disapprove them. Other than the town of Plato itself, Brizzolara did not know of any other subdivision in Plato Township that had street lights in the subdivision. Brizzolara accepted the roads and streets in Catatoga III into the Plato Township Road District.

On September 17, 1980, Brizzolara attended a meeting at the office of the county superintendent of highways at which he, Burnidge, and William Carter, the superintendent, were present. The superintendent required that one street light be placed at the intersection of the subdivision outlet and the county highway. An additional nine street lights were located on a plat map of the subdivision, the words "street lights location approved" were written on the plat, and Frank Brizzolara, Logan Burnidge and William Carter signed underneath the words. Later, Brizzolara also signed a "Supplement to Rate 23 Contract" which was dated March 11, 1981. The contract was with Commonwealth Edison Company and covered the maintenance and energizing of the nine street lights. The contract detailed the cost per light per month; the approximate total annual cost for maintaining and energizing the lights was $1,000. The developer also contracted with Commonwealth Edison Company, agreeing to pay for the furnishing and installation of the lights and related equipment. Its check, dated March 23, 1981, for $6,973.42 was returned to it under cover letter from Commonwealth Edison dated December 2, 1982, due to its company policy that agreements are valid only for six months due to inflation. Commonwealth Edison's files did not contain the "Supplement to Rate 23 Contract" signed by Brizzolara, and it was not accepted by Commonwealth Edison. Brizzolara mailed it to Commonwealth Edison, but was not sure if this was before or after his term expired in April of 1981. After approving the light locations, and signing the "Supplement to Rate 23 Contract," Brizzolara submitted his recommended budget to the township board. He said that the necessary funds to pay for the energizing of the lights by way of contract with Commonwealth Edison were "buried" in his proposal. Payments to Commonwealth Edison were to be made out of the general road fund of the Plato Township Road District. Brizzolara's proposed budget was not approved as presented. Kenny Bartals (phonetic) made up the budget that was approved at the town meeting. Brizzolara was aware at the time he signed the "Supplement to Rate 23 Contract" and at the time he prepared his proposed budget that the Plato Township Board of Trustees was opposed to street lights at public expense in Catatoga III subdivision.

In March 1981 Carlton Wiese was duly elected as highway commissioner of the Plato Township Road District, succeeding Frank Brizzolara in said office on April 27, 1981. Wiese indicated to Commonwealth Edison that Plato Township did not intend to enter into a "Supplement to Rate 23 Contract" to light the public roads in Catatoga III. At various times since September 1980, plaintiff requested and demanded of the defendants that they meet their commitment to provide for lighting of the roads in Catatoga III; defendants have refused and continue to refuse to provide for such lighting.

• 1, 2 At the outset, we note that in determining whether judgment was correctly entered for the defendants as a matter of law, we are not limited to the precise reasons expressed by the trial court in entering its summary judgment. (Coomer v. Chicago & North Western Transportation Co. (1980), 91 Ill. App.3d 17; Murphy v. Rochford (1977), 55 Ill. App.3d 695.) We also observe that the sole function of a court reviewing a trial court's entry of summary judgment is to determine whether that court correctly ruled that no genuine issue of material fact had been raised, and if none was raised, whether judgment was correctly entered as a matter of law. (Fuller v. Justice (1983), 117 Ill. App.3d 933.) Facts unrelated to the essential elements of the plaintiff's cause of action are immaterial, and regardless of how sharply controverted, their presence in the record will not warrant denial of a motion for summary judgment. (Mid States Vending Service, Inc. v. C.A.P., Inc. (1977), 45 Ill. App.3d 947.) A reviewing court may reverse an order granting summary judgment if it is determined that a genuine issue of material fact does exist (Rubin v. City National Bank & Trust Co. (1980), 81 Ill. App.3d 1020), and on appeal from summary judgment for defendants, facts must be reviewed in the light most favorable to the plaintiff. Montague v. School Board (1978), 57 Ill. App.3d 828.

• 3-5 Mandamus is an extraordinary remedy to compel the performance of ministerial duties. (Nugent v. Miller (1983), 119 Ill. App.3d 382.) A writ of mandamus is issued in the exercise of judicial discretion only in those cases where the plaintiff can demonstrate a clear right to this extraordinary relief. (Walter v. Board of Education (1982), 93 Ill.2d 101.) The purpose of a mandamus proceeding is to enforce rights already lawfully vested, and rights cannot be acquired in such proceeding (Weiner v. Forest Preserve District (1984), 126 Ill. App.3d 206); the relator seeking mandamus must show a clear legal right to have the action taken which he is demanding. (Elgin National Bank v. Rowcliff (1982), 109 Ill. App.3d 719.) Mandamus is used only to compel a specific kind of behavior, i.e., compliance with a ministerial duty of an office, and it does not issue to compel action that is discretionary. (People v. Schyve (1983), 112 Ill. App.3d 777, aff'd (1984), 101 Ill.2d 355.) Although mandamus has been used to compel the exercise of discretion which is vested in a public official (Gordon v. Department of Transportation (1982), 109 Ill. App.3d 1071, aff'd (1983), 99 Ill.2d 44; People ex rel. Abner v. Kinney (1964), 30 Ill.2d 201), it may not be used to direct or alter the manner in which discretion is to be exercised. To do so would be to substitute a court's judgment and discretion for that vested in the public official, and that is not permitted. (Freeman v. Lane (1985), 129 Ill. App.3d 1061; Ickes v. Board of Supervisors (1953), 415 Ill. 557.) Further, it has been held that the writ will not lie when the mandate depends upon the cooperation or approval of a third person who is not before the court. (Moser v. Highway Commissioner (1983), 114 Ill. App.3d 137.) If the cooperation of the third person is a matter of duty, however, and the third person is a public officer, the law will presume that he will do his duty, and the writ will lie. 114 Ill. App.3d 137, 139.

• 6 Plaintiff contends the existence of defendants' duty to provide street lights in Catatoga III is two-fold: it is mandated by statute, and it arises out of plaintiff's reliance on the affirmative acts of commissioner Wiese's predecessors in office, Frank Brizzolara and William Hulke.

The statutes in question provide in pertinent part:

"The highway commissioner of each road district shall perform the functions stated in Sections 6-201.1 to 6-201.18, inclusive."

"Provide for the lighting of any public road or portion thereof in his district when in his opinion it is necessary for the convenience or safety of the public." Ill. Rev. Stat. 1983, ch. 121, pars. 6-201, 6-201.12.

On its face, section 6-201.12 contemplates the commissioner exercise discretion in providing lighting for public roads. It is undisputed that plaintiff has asked the defendants to provide lighting, and that defendants have refused. Although plaintiff in its reply brief appears to suggest that the refusal to provide lights does not amount to a determination that lighting in Catatoga III is not necessary for the convenience or safety of the public, it may reasonably be inferred from the foregoing undisputed fact that such is the case. Such an inference seems particularly reasonable, since plaintiff itself filed a motion for summary judgment, and since plaintiff has not sought to compel simply the exercise of the commissioner's discretion which, as noted above, is appropriately sought in an action for mandamus. (See Gordon v. Department of Transportation (1982), 109 Ill. App.3d 1071, aff'd (1983), 99 Ill.2d 44.) Further, plaintiff's position is that the duty to provide lighting vested in the office of the Plato Township highway commissioner; that is, that the discretion once exercised ...

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