Mr. Justice SHELDON, dissenting.

the fact that the approval of the President was not obtained until at the considerable length of time which here appears, after the making of the deed. There appears the permission of the President, and that fulfills the condition for the making of the conveyance. This condition was designed for the benefit of the Indian, as a safeguard of his interest against fraud, imposition, and his own improvidence, in the disposition of his land. A supervisory care, in this respect, it was thought best should be exercised; and the measure of guardianship which it was seen fit to provide, was the President's permission to a conveyance of his land by the Indian. This granting of permission was a duty imposed upon the President, and no one else. How and when he should perform it, was for him to determine, and not for a court to adjudge. No time or form of granting the permission was prescribed. The President assumed to act in the discharge of the duty which was imposed upon him, by giving his sanction to the conveyance. Whether it was proper for him to do so at such a length of time after the making of the deed, was, it is conceived, for his sole determination.

A similar view was taken in respect of a like provision in the case of Ex dem. Godfrey v. Beardsley, 2 McLean, 412, where the permission was given before the deed was made. Justice MCLEAN there said: "Neither the treaty nor any law prescribes the form in which this sanction (permission) should be given. The treaty imposed the duty upon the President, and he could execute it in such form and manner as his discretion should dictate. Except by permission of the President, Pierre Moran could not convey this land. That permission was obtained before the deed was executed. Now, whether it would have been more judicious to have withheld the sanction until the execution of the deed, is a matter about which differences of opinion may exist. But whether given before or after the deed, it is equally within the power of the President."

Syllabus.

In Jackson v. Hill, 5 Wend. 532, where, in order to the validity of a deed made by an Indian, the approbation of the surveyor-general was required by the law of New York, it was held that a deed made without such approval, but subsequently approved, was good from the time such approbation was in fact given. And see, to same effect, Murray v. Wooden, 17 Wend. 531.

I think the court erred in its rulings, and that the judgment should be reversed.

THE BOARD OF SUPERVISORS OF CHAMPAIGN COUNTY

v.

THE TOWNS of Condit and Newcomb.

Filed at Springfield March 23, 1887.

1. BRIDGES--COUNTY AID-right of a town to county aid, as depending on levy of tax by the former. The right of a town, under section 19 of the Road and Bridge act of 1883, (Rev. Stat. chap. 121, sec. 19,) to an appropriation from the county treasury of one-half of the cost of a bridge, where its cost is more than twenty cents on the one hundred dollars of the latest assessment roll, and such town has levied a road and bridge tax for the amount of sixty cents on each one hundred dollars, directed by law to be raised, will not be defeated by the fact that such town may have adopted the labor system, provided it has levied road and bridge taxes in all amounting to not less than sixty cents on each one hundred dollars' valuation of taxable property.

2. SAME of the proof required-notice-presumption. A county board will not be justified in refusing an application, on behalf of a town, for aid in the construction of a bridge, for the want of formal proof of the facts alleged in the petition. The destruction of a former bridge, and the necessity of rebuilding the same without delay, being matters of public notoriety, notice thereof to the county board will be presumed, without proof.

3. So when the commissioners of highways present their petition for county aid in rebuilding a bridge, to the county board, showing the destruction of the bridge and the public necessity for replacing it without delay, and the letting of a contract, according to law, for the building of a new one, and file affidavits and estimates of its cost, as required by section 19 of the

120 301 39a 307

Brief for the Appellant.

Road and Bridge act, this will make out a prima facie case entitling them to the relief sought. If the county board have any doubts as to the truth of any of the allegations of the petition, they should investigate the matter. As to the levy of the necessary taxes by the town, they should inspect the public records.

4. MANDAMUS-of the proof allowed. On the hearing of a proceeding by mandamus to compel a county board to aid a town in building a bridge, the petitioners will not be restricted to the evidence adduced by them before the county board, but they may support their petition by any proper evidence. 5. ERROR WILL NOT ALWAYS REVERSE. In a proceeding by mandamus to compel a county board to appropriate a sum in aid of towns in rebuilding a bridge, a judgment granting the relief sought will not be reversed for errors in the rulings of the trial court, when the admitted facts clearly justify the judgment.

APPEAL from the Appellate Court for the Third District;heard in that court on appeal from the Circuit Court of Champaign county; the Hon. C. B. SMITH, Judge, presiding.

Mr. FRANCIS M. WRIGHT, and Mr. J. W. SIMS, for the appellant:

When the duty to be performed depends upon the judgment or opinion of the person by whom it is to be discharged, this writ will not lie. St. Clair County v. People, 85 Ill. 396; School Inspector v. Grove, 20 id. 526; People v. Hilliard, 29 id. 413; City of Ottawa v. People, 48 id. 233.

The writ lies to subordinate tribunals to compel them to act when it is their duty to act, but never to require them to decide a particular way. People v. Dental Examiners, 110 Ill. 180; People v. Troy, 78 N. Y. 33; People v. McCormick, 106 Ill. 184.

The levy of a road tax under section 83 of the Road law, is not a compliance with section 19 of the act. They provide for separate and distinct taxes. Suppiger v. People, 9 Bradw. 290; People v. Suppiger, 103 Ill. 434.

The town must raise its half of the cost before asking aid, and the county board may investigate whether it has. Supervisors v. People, 12 Bradw. 210; 110 Ill. 577.

Brief for the Appellees. Opinion of the Court.

Upon the point that the town must first provide for onehalf of the necessary expenses of the bridge, see Supervisors v. People, 16 Bradw. 305. And upon the point of the power of the commissioners to incur the debt without a vote of the people, see Highway Comrs. v. Hamilton, 15 Bradw. 412; Town of Harwood v. Hamilton, 13 id. 358; Prince v. City of Quincy, 105 id. 138, 215.

Mr. J. L. RAY, and Mr. J. B. MANN, for the appellees:

The law, (sec. 19,) in case of an emergency, authorizes the commissioners to build the bridge before the meeting of the county board, and afterward apply for aid.

A road tax payable in labor is as much a road tax as if payable in money; and in this case the town has levied the requisite tax.

The relators have shown every fact necessary to entitle them to the writ.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

The commissioners of highways of the towns of Condit and Newcomb, acting in concert, presented two petitions, made out in their respective names and relating to their respective towns, but in all other respects alike, to the board of supervisors of Champaign county, at their regular annual meeting in September, 1885, praying the board to make an appropriation out of the county treasury, of $2750, for the purpose of defraying one-half of the estimated cost of rebuilding a bridge over the Sangamon river, where the same is crossed by a public highway running north and south on the township line dividing the two towns. The board of supervisors denied the petition, and refused to make the appropriation prayed, whereupon the two towns commenced an action of mandamus in the circuit court of Champaign county, against the county board, to compel it to make the appropriation in question. The cause, by consent of parties, was heard before the court

Opinion of the Court.

without a jury, resulting in a judgment and order awarding the writ as prayed, which having been affirmed by the Appellate Court for the Third District, the board of supervisors appealed to this court.

The whole proceeding, from its inception with the commissioners of highways of the two towns, is based chiefly upon the 19th section of chapter 121 of the Revised Statutes, entitled "Roads and Bridges," which is as follows: "When it is necessary to construct or repair any bridge over a stream on a public road in any town, or on or near to or across a town line, in which work the town is wholly or in part responsible, and the cost of which will be more than twenty cents on the one hundred dollars on the latest assessment roll, and the levy of the road and bridge tax for that year in said town was for the full amount of sixty cents on each one hundred dollars allowed by law for the commissioners to raise, the major part of which is needed for the ordinary repair of roads and bridges, the commissioners may petition the county board for aid; and if the foregoing facts shall appear, the county board shall appropriate from the county treasury a sum sufficient to meet one-half the expenses of the said bridge, * on condition that the town asking aid shall furnish the other half of the required amount: Provided, however, that before any bridge, plated as above, shall be constructed or repaired under the provisions of this section, the commissioners shall make a careful estimate of the probable cost of the same, and attach thereto their affidavits that the same is necessary, and will not be more expensive than is needed for the purpose desired, and such estimate and affidavit shall be filed with the petition: Provided, in case of some emergency arising from the sudden destruction or serious damage to a bridge, * when delay

contem

in * ** rebuilding would be detrimental to the public interest, such petition to the county board may be presented during the progress of the work or after its completion, and