i 
 
 I r ^ =^^ I 
 
 U IN THE 5 
 
 P $ 
 
 j gaPRE^E + 0001^ + §P + ILjDIN®I3. i 
 
 I ^ : 8 
 
 ^ Soutl'e*'" 6»'<i"d Division. ' p 
 
 ^ In Vacation after the September Term, a. d. 1887. i 
 
 I ! 
 
 I I i 
 
 y THE PEOPLE OF THE STATE OF \ ' S 
 
 S ILLINOIS, ex relatione John P. Neal, j ' % 
 
 va petition for I H 
 
 i vs- / Is 
 
 g I MANDAMUS. j jg 
 
 i 
 I 
 
 i 
 
 JOHN A. ROCHE, Mayor of the City of 
 Chicago et al. 
 
 PETITION FOR REHEARING. 
 
 J. L. HIGH, 
 
 Counsel for Relator. 
 
 2 OHicAcao 
 
 R HORACE O'DONOQMUE, BRIEF AND ABSTRACT PHINTEH, 192 S. JEFFERSON ST. 
 
 P I TELEPHONE 4-830. 
 
 I 
 
 P 
 
 I 
 
N THE 
 
 .SapREME + Gmm + ©p + lEwpjeig, 
 
 Southern G^ci"<i Oi^isio"- 
 
 In Vacation after the September Term, A. D. 1887. 
 
 THE PEOPLE OF THE STATE OF 
 ILLINOIS, ex relatione John P. Neal, 
 
 JOHN A. ROCHE, Mayor of the City of 
 Chicago et al. 
 
 PETITION FOR 
 
 MANDAMUS. 
 
 PETITION FOR REHEARIIVG. 
 
 The relator respectfully asks the court to reconsider 
 its judgment in this cause, and to enter a final judgment 
 in accordance with the stipulation and agreed statement of 
 facts, upon which the case was submitted, upon the fol- 
 lowing grounds: 
 
 The court, in its opinion, holds that the mortgage, 
 to secure the purchase money of the premises in contro- 
 vers}', should run to the cit\' of Chicago, instead of to the 
 Board of Education. B\' the stipulation, or agreed state- 
 ment of facts, upon which the case was . submitted, it was 
 agreed that if the court should hold that the mortgage 
 
should be executed to the city of Chicago, a final order 
 might be made directing the mayor and comptroller of the 
 city to execute a conveyance of the premises, upon the 
 execution and delivery of the mortgage and bond secur- 
 ing the erection of the depot, to the city of Chicago, 
 instead of to the Board of Education. The court declined 
 to enter such judgment, upon the ground that it did not 
 appear that the stipulation was authorized by the Board 
 of Education, and that counsel had no authority 
 to bind the Board by such stipulation. This stip- 
 ulation was in fact authorized by the Board 
 of Education, at a regular meeting held Sep- 
 tember 7, 1887. By an oversight in making up the orig- 
 inal record, the consent of the Board to this stipulation 
 and the authority of its counsel to execute it were omitted. 
 Counsel for the respective parties have stipulated that this 
 omission in the record may be supplied by a certified copy 
 of the proceedings of the Board of Education at its meet- 
 ing of September 7, 1887. Upon the convening of the 
 court at the March term, 1888, we shall file this stipula- 
 tion, and ask leave to file, as a supplement to the original 
 record, the consent of the Board to the agreed statement 
 of facts. The stipulation consenting to the filing of such 
 supplemental record is as follows: 
 
 (title of the cause.) 
 " It is stipulated by and between counsel for the 
 respective parties to the above entitled cause, that the 
 accompanying copy of the proceedings of the Board of 
 Education of the city of Chicago, at a meeting held Sep- 
 tember 7, 1887, approving of the stipulation upon which 
 the above entitled cause was submitted for hearing at the 
 September term, A. D. 1887, which copy is dul}' certi- 
 fied by Shepherd Johnston, clerk of said board, under 
 
3 
 
 date of January 27, 1888, may be filed herein with Hke 
 effect as if filed with and made part of the original record in 
 this cause; and that if the court shall i^rant a rehearing, 
 or reopen this cause, in accordance with the petition of 
 the relator for a rehearing, all parties waive the right to 
 an)' further argument, and consent that the court may 
 finally dispose of this cause at the March term, A. D. 
 1888, and may forthwith enter such final judgment herein 
 as it may deem proper under such stipulation, and in 
 accordance with the law. 
 
 J. L. Hi(;h, 
 
 Counsel for Relator. 
 
 J. W. Green, 
 Counsel for Jo Jin A. RoeIu\ Mayor, and Augustus H. 
 Hurley , Comptroller, of the City of Chieago. 
 
 CuAS. H. Morse, 
 Counsel for the Board of Education of the City of Chicago f 
 
 The record of the proceedings of the Board of Edu- 
 cation, at its meeting September 7, 1887, so far as it per- 
 tains to the matter in question, is as follows: 
 
 " STIPULATION IN MATTER OF MORTGAGE TO BE GIVEN 
 
 BV CHICACrO .\; GREAT WESTERN RAILROAD CO. 
 
 Mr. Doolittle, chairman of the committee on school 
 fund property, presented a stipulation in the matter of 
 the mandamus proceeding brought in the Supreme Court 
 against this Board, the Mayor, Comptroller, etc., by John 
 P. Neal, to compel the execution ofa deed and acceptance 
 of the mortgage of $650,000 to be given by the Chicago 
 & Great Western Railroad Company, to secure the payment 
 for the north half of block 87, and all of block 88, school 
 section addition, to be filed in the Supreme Court of the 
 State of Illinois, September term, accompanied by a reso- 
 lution authorizing the employment of counsel to protect 
 the interests of the Board of Education. 
 
 Mr. Stewart moved to amend the resolution by giving 
 authoiity to the president of the Board to employ com- 
 petent counsel in the case. 
 
 The amendment was accepted by Mr. Doolittle, and 
 the resolution, as amended, was adopted. 
 
Veas — Messrs. Brenan, Stensland, Niehoff, Stewart, 
 Wenter, Doolittle, Nettelhorst, Clark, Forch, McLaren, and 
 the president — 1 1 . 
 
 Nays — o. 
 
 The following is the resolution adopted by the above 
 vote: 
 
 Resolved, That the attorney of the Board be directed 
 to execute the following stipulation in the name of the Board 
 of Education; that the president of the Board be and hereby 
 is authorized to retain and employ competent counsel 
 in said proceedings, and to take all prudent measures to 
 expedite the hearing and determination of the cause. 
 
 The following is the stipulation referred to in the 
 above resolution: 
 
 Supreme Court — State of Illinois. 
 
 Northern Grand Division. 
 
 Sept. Term, A. D. 1887. 
 
 The people ex rel, John P. Neal ] 
 
 vs. j 
 
 John A. Roche, Mayor, the )■ 
 
 Board of Education of the city j 
 
 of Chicago, et al. j 
 
 In the above entitled cause the parties agree that the 
 facts herein set forth are correctly stated, and that the facts 
 set forth in this stipulation, signed by the counsel of all 
 the parties, shall be considered by the court the same as 
 if they were returned by the said respondents, John A. 
 Roche, Mayor, and Augustus H. Burley, Comptroller, 
 and the Board of Education of the city of Chicago, and 
 the same as though summons had been issued and the 
 respondents had answered to the petition of the relato';. 
 
 The parties agree that the proceedings of the Board 
 of Education are correctly stated in the petition of the 
 relator. 
 
 That the proceedings of the City Council of the cit}' 
 of Chicago are correctly stated in said petition. 
 
 That block 88 and the north half of block 87, of the 
 school section addition to Chicago, are a part of the six- 
 teenth section originally allotted by the act of congress to 
 
5 
 
 the use of public schools, and tliat the General Assembly 
 has by one or more public acts declared the title to said 
 premises to be vested in the city of Chicago for the use of 
 public schools. 
 
 That the petitioner has procured and caused to be 
 surrendered and cancelled all outstanding leases upon said 
 premises, at an expense of about the sum of $341,378. 
 
 That the relator has prepared and tendered to the 
 Board of Education a mortgage running to said Board 
 for the sum of $650,000, to secure the purchase money, 
 the form of which mortgage has been approved by the 
 Board of Education, and that the said petitioner and rail- 
 road company have tendered tli^e said mortgage and de- 
 manded a deed for the said premises from the city of Chi- 
 cago, through its Mayor and Comptroller. 
 
 And that the said relator has procured to be executed 
 a bond as set forth in said petition. 
 
 And it is agreed that the said John A. Roche, Mayor, 
 and the said Augustus H. Burley, Comptroller of the city 
 of Chicago, refuse to execute a deed to the said premises, 
 unless the said relator and the railroad company shall ex- 
 ecute to the city of Chicago a mortgage securing the pur- 
 chase money of said premises to the city of Chicago int 
 stead of to the Board of Education, for the reason tha- 
 the city holds the said propert}' in trust for the school 
 fund, and the purchase money mortgage should be exe- 
 cuted to and retained by said city, and that the interest 
 and principal should be collected and held by the cit\' in 
 trust for the school fund, and that the city alone has the 
 power to declare a forfeiture for breach of the conditions 
 of the mortgage; and that the city of Chicago would be 
 responsible, as trustee for the school fund, in the event 
 that the mortgage should be executed to the Board of 
 Education, and any misapplication of the funds derived 
 under and by virtue of said mortgage should be made by 
 the Board of Education, and that the school board is not 
 authorized by law to hold said mortgage in its own name, 
 which positions and reasons are controverted by the Board 
 of Education. 
 
 And it is further agreed that the court, on the 
 hearing of the petition, if it shall determine that 
 the said mortgage can lawful!}- be made to the 
 
Board of Education, then the court shall make a final 
 order or grant a peremptory mandamus, if the case 
 requires it, compelling the Mayor and Comptroller to exe- 
 cute the conveyance. If, however, the court should hold 
 that the mortgage should be executed to the city of Chi- 
 cago, then it is agreed that a final order may be made by 
 the court directing the Mayor and Comptroller of said city 
 to deliver and execute the conveyance, upon the execution 
 and delivery of the mortgage and the bond to the city of 
 Chicago, instead of to the Board of Education. 
 
 It is also agreed that the Supreme Court, upon the 
 facts set forth in this stipulation, may, as it shall be advised, 
 cause to be entered such *an order in this proceeding as 
 shall effectuate the sale and conveyance of the said land, 
 and the securing of the consideration to the school fund, 
 and that such order may be embraced in the peremptory 
 mandamus declaring whether the city or the School Board 
 shall have the charge and control of the funds derived 
 from said sale." 
 
 It thus appears that the stipulation and agreed state- 
 ment of facts upon which the case was submitted was ex- 
 pressly authorized by the Board of Education. The 
 
 city of Chicago, instead of to the Board of Education, by 
 the terms of the stipulation thus authorized by the Board, 
 the court is fully warranted in awarding a peremptory 
 mandamus against the Mayor and Comptroller, directing 
 them to execute a conveyance upon the execution and de- 
 livery of the mortgage, and the bond for the erection of 
 the depot, to the city of Chicago. 
 
 We do not ask the court to reconsider its opinion as 
 to the power of the Board of Education to take and hold 
 the mortgage in question; and by the stipulation first above 
 set forth all parties waive further argument on that point, 
 and consent that the court may forthwith, at the March 
 
term, enter judf^ment in accordance with the agreed state- 
 ment of facts and its views of tiie hiw. By the agreed 
 statement of facts, it ap{)ears that upon the faith of the 
 contract of sale we Iiave ah-ead\' expended $341,3/8 '" 
 purchasing the outstanding leases upon the premises. By 
 the failure to execute the conveyance, growing out of the 
 tlisagreement between the city and the Board of Education, 
 touching the proper grantee in the mortgage, we have not 
 only lost the interest upon this large sum of mone)', but 
 have been dela}'ed a year in the construction of our pas- 
 senger depot upon these premises. The great damage and 
 loss which we have thus sustained will, we trust, serve as 
 an apolog)- for respectfully, but earnestly, asking the court 
 to forthwith enter a final judgment, awarding a peremptory 
 mandamus against the Mayor and Comptroller, upon our 
 executing the mortgage and bond to the city, or such other 
 final judgment as in the opinion of the court may carry 
 out the spirit of the contract. Should the court so desire, 
 counsel for the respective parties will submit suggestions 
 as to the form of the judgment. 
 
 Respectfully submitted, 
 
 J. L. High, 
 
 Counsel for Relator. 
 
EKRM