In force March 2d, 1837.
AN ACT to amend an act entitled an act for the construction of the Illinois and Michigan Canal, approved Jan. 9th, 1836.1
Election by vote of both Houses for three Commissioners.
Additional duties of President and Treasurer.
Shall perform the duties of acting Commissioner.
Sec.[Section] 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That there shall be elected at the present session of the Legislature, by the joint vote of both Houses, three practical and skillful citizens of this State, to constitute the Board of Commissioners of the Illinois and Michigan Canal, one of whom shall be designated as the President, one as Treasurer, and one as the Acting Commissioner of said board. The said President and Treasurer, in addition to the other duties required of them, by the act to which this is an amendment, shall also whenever the public good may require the same, exercise all the duties and perform all the services required
<Page 2>by said act, of the acting commissioners. Each and every one of the Commissioners aforesaid, when in the discharge of the duties of Acting Commissioner, shall be subject to the order of the board.
Duties of Commissioners.
Plan of 1836.
Sec. 2. That it shall be the duty of the Commissioners authorized to be elected by this act, to proceed immediately and without delay, to the prosecution and final completion of said Canal, upon the plan proposed by the act to which this is an amendment, and upon the plan set out upon by the Commissioners in the year 1836, in all respects.2
Shall require a survey of route
Engineer shall report to board of Commissioners.
Engineer shall report to board of Commissioners.
If water sufficient to supply a canal of same size as one now contemplated.
Engineer to be employed shall take oath of his estimates and surveys.
Sec. 3. That the said Commissioners shall require a survey and examination of the route of said Canal as now established, by some skillful Engineer, who shall report to the said board of commissioners, who shall also report the same to the next session of the General Assembly. The said examination shall be made with a view of ascertaining whether there is a sufficiency of water within the legitimate authority of the State of Illinois, to use to supply a Canal of the same size and dimensions, as the one now contemplated to be constructed upon the summit level of said line of Canal, the said Engineer authorized to be employed under this act, shall take such oath as to the correctness of his estimates, surveys, and conclusions as are usually required of Engineers.3
Work to be constructed when state of Indiana shall undertake.
Sec. 4. Said board shall also as soon as convenient, authorize a survey and estimate to be made of the route of a Canal, diverging from the main trunk of the Illinois and Michigan Canal, through the Aug-sau-ge-nash-ke Swamp4 and Grassy Lake, to intersect the Calumet river at the nearest practicable point, the said work to be constructed whenever the State of Indiana shall undertake a corresponding work, connecting her system of Internal Improvements with the Illinois and Michigan Canal.
Commissioners shall take and subscribe oath.
Sec. 5. Said Commissioners when elected, before entering upon the duties of their office, shall take and subscribe the following oath, viz: I do solemnly swear in the presence of Almighty God, that I do not own land on or adjoining the Canal route, and that I am in no manner, either directly or indirectly, interested in any land within ten miles of said contemplated Canal, further than a common interest as a citizen of this State, and that I will not buy or trade in any land on the route, or within ten miles of the same, during the time that I act as Canal Commissioner, and that I will faithfully discharge the duties of Canal Commissioner according to law, and the best of my abilities: so help me God.
Sec. 6. The said commissioners shall have power to sell such parts of the canal lands in the township in which
<Page 3>Chicago is situated, and such alternate lots in such town sites at the termination, and along the Canal route, as are or may be laid out by them, as may be necessary to produce the sum of one million of dollars, such sales shall in all respects be made in the same manner and upon the same terms as the sales authorized by the act to which this is an amendment, Provided, That said sales may be made at such place or places, as the said commissioners may deem for the interest of the State.
Commissioner shall have power.
Attested copy of plat shall be evidence in any court of law or equity.
Sec. 7. The said commissioners, shall have power to cause surveys of such town sites as they may select, to be laid out by such person or persons as they may think proper, the plats of such towns certified by such person or persons so employed, and said commissioners shall be recorded in the Recorder’s Office in the county where such town is situated, and such plat so certified and recorded or an attested copy thereof, shall be evidence in any court of law or equity in this State, and plats of such town sites, sub-divisions of sections or surveys, which have been made and certified by the former commissioners, shall also be recorded in the same manner, and have the same validity as aforesaid.
Navigable feeder to be constructed.
Sec. 8. The said commissioners shall construct a navigable feeder from the best practicable point on Fox River, to the Illinois and Michigan Canal at the town of Ottawa, and such basins or lateral canal connecting the Illinois River with said canal at that point, as in their opinion will most enhance the value of the property of the State.
Judge of circuit court shall appoint three commissioners citizens of this State not residing in said district.
Certificate of appointment under hand of Judge shall be recorded.
Commissioners to make report within twenty days after examination in writing.
Description of property to be surrendered to the State.
Court to direct commissioners to pay individuals in whose favor he may decide.
Court shall hear and determine question of damage.
Court vested with full power to make all orders and decrees in the premises.
Sec. 9. That the Judge of the Circuit Court within whose circuit the said canal lands are situated, shall on or before the first Monday in June next, appoint three commissioners citizens of this State, who shall not be interested in any lands within the district of country through which said canal passes, and who do not reside in said district, to be a board for the appraisement and determination of all questions of damages which may arise from the construction of said canal, a certificate of whose appointment under the hand of the said Judge, shall be recorded in each county in which any of said canal lands lie. It shall be the duty of said commissioners, whenever requested by the board of canal commissioners, to examine into all questions of damages which may arise between said canal commissioners, and any individual or individuals to make reports within twenty days after such examination in writing to the said canal commissioners, and file a copy of such reports in the clerks office of the circuit court of the county in which the land may lie, on which any damages may be claimed, which reports shall contain a full account in writing of said claim, the manner in which
<Page 4>it may arise, and all such testimony as may be taken by them in relation to the same; also an assessment of the damages if any are rewarded, accompanied by a description of the property to be surrendered by such individual to the State, where the question of damages may relate to the right of way, or surrender of land for the use of Hydraulic, or other purposes; upon the return of said report and assessment of damages aforesaid, the said circuit court at its succeding term, if in its opinion the damages assessed are not too high, and if no objection be made to the same, shall cause an order to be made of record, directing the said board of canal commissioners to pay to such individual or individuals, in whose favor he may decide, such sum as may be awarded for his or their damages as aforesaid, with such costs as such party may have expended in the defence of such claim for damages, to be certified by the court, Provided however, That if upon examination of such returns, assessment and testimony furnished as aforesaid, by said commissioners, if the said court shall be of opinion the said assessment is too high, or the individual or individuals in whose favor such assessment shall be made, shall be dissatisfied with the same, the said court shall proceed to hear and determine the question of damages in such manner as it may deem equitable and just, and the said court is hereby vested with full power and jurisdiction, to make all orders and decrees in the premises, and to inforce their observance, necessary to carry into full effect all, or any decision which may be made, Provided, That appeals shall be allowed to the Supreme Court as in other cases, And provided also, That the court shall have power to compel all persons to pay all costs occasioned by their objections or exceptions to assessments, which are not sustained by the court, and the court shall also have power in all cases to make such orders in respect to cost as may be deemed equitable and just. In assessing damages, regard shall be had as well to the benefit as the injury arising from the construction of the canal.
Reservation of act passed Jan. 22, 1829.
If courts decide against this right.
Sec. 10. The canal commissioners shall insist upon the right of the State to the right of way, through and upon all lands heretofore sold or granted by the State, and also the use of all water and materials required in the construction of the canal under the reservation contained in the tenth section of the act passed January the 22d, 1829, providing for the construction of said canal, and under the reservation contained in subsequent laws on the same subject; but if the courts shall decide against this right, then the same mode of proceeding shall be had in reference to said lands, water and materials as in other cases.5
Compensation of persons appointed to assess damages.
Sec. 11. The persons appointed to assess damages, shall
<Page 5>be allowed by the court a reasonable compensation for their services, not to exceed three dollars per day, to be taxed in the bills of cost, and paid as other costs.
Board to deliver copies of their reports to each of the parties.
Shall certify the fact.
Shall be evidence of notice.
Court may continue causes & questions.
Sec. 12. The Board of assessment shall in call cases deliver copies of their reports to each of the parties interested or their attorney, before filing a copy with the clerk, as herein required, and they shall certify the fact of delivering such copies upon the copy filed with the clerk, as aforesaid, and the delivery of such copy shall be evidence of notice, and the court shall proceed to adjudicate upon the rights of all parties so notified, without requiring any other or further notice to be given; for good cause shown the court may continue all causes and questions arising under this act, from term to term as in other cases.
Power to execute all duties heretofore required of them.
Sec. 13. The canal commissioners shall cause the plats of the towns of Chicago and Ottawa, by which they were governed in selling lots in said towns, to be recorded with the certificates of the late canal commissioners, endorsed thereon as to the identity of said plats. They shall also have power to execute and perform all duties heretofore required of canal commissioners in relation to alterations in the survey of the town of Ottawa, Provided, That no rights acquired by individuals shall be affected thereby. The plats of said towns, or certified copies thereof, shall be admitted as evidence in all courts or places whatsoever.
Governor to borrow on credit of the State, the sum of $500,000.
Said sum shall be laid out in the year 1838, in addition to moneys.
Sec. 14. The Governor of the State, when he shall be advised of its necessity by said canal commissioners, shall borrow upon the credit of the State, the sum of five hundred thousand dollars on the same terms and in the same manner prescribed in the act to which this is an amendment, which said sum shall be expended on the canal in the year 1838, in addition to the moneys arising from the sale of the canal lands, and which may be then in the treasury of said Board.
Part of act repealed.
Regulations & restrictions, to be publiehed.
Shall retain 15 per centum & not more than 30 to protect the State.
Sec. 15. That for the purpose of inviting and promoting fair competition in the letting of contracts, so much of the act to which this is a supplement as requires the board of canal commissioners to demand and receive security from contractors for the execution of contracts, be, and the same is hereby repealed; and the Board shall let all contracts to the lowest responsible bidders for the work, under such regulations and restrictions, to be fixed upon and published by the Board, as shall effectually insure the punctual commencement, and faithful execution, progress, and completion of the contracts, and to protect the rights and interests of the State, and to insure the faithful execution and completion of contracts, shall retain in their hands, during the progress of the work, at least fifteen per centum, and not more than thirty per centum of the val-
<Page 6>ue of the work actually performed, until the full completion of the contracts.
Estimates to be made of work executed under the direction of board of Engineers.
Not less than 70 nor more than 85 per centum shall be paid to contractors until work is completed.
Sec. 16. Monthly estimates of the amount and value of the work executed, shall be made out during the progress of the work, under the directions of the Board, or principal engineer on the line; and upon such estimates being filed in the office of the Board, not less than seventy per centum, nor more than eighty-five per centum of said estimated value, shall be paid to the contractors, and the residue shall be retained until the completion of the contract, as provided for in the foregoing section, Provided, That this section and the preceding section, shall not be construed to apply to existing contracts, or to the bonds given under the same.
Commissioners shall execute bonds in the sum $10,000 with security.
Treasurer to give additional bond and security to be approved by the Governor.
Sec. 17. The commissioners to be elected under the provisions of this act, shall severally execute bonds in the sum of ten thousand dollars, with such security as shall be approved by the Governor, for the faithful discharge of their duties as canal commissioners, in addition to which the treasurer shall give bond in such sum and with such security as shall be approved by the Governor for the faithful management, safe keeping and disbursements of the canal funds, that may at any time come into his hands.
All of former act conflicting with this act repealed.
Sec. 18. Every part of the act to which this is an amendment that does not conflict with the provisions of this act, shall be and remain in full force, and govern the commissioners to be elected under the provisions of this act, in their duties as canal commissioners, and so much of said former act as conflicts with this act, is hereby repealed.
So much of 13th section is here[by] repealed.
Sec. 19. So much of the thirteenth section of the act to which this is an amendment as requires warrants or checks to be countersigned by the acting commissioner, and to be under the seal of the Board, is hereby repealed.
Approved 2d Mareh, 1837.
1Newton Cloud from the Committee on Roads and Canals introduced HB 144 in the House of Representatives on January 21, 1837. The House referred the bill and a proposed amendment to the Committee on Internal Improvements, which reported back on February 16, recommending the bill’s rejection. The House then voted against laying the bill and the proposed amendment on the table, by a vote of 37 yeas to 40 nays, Abraham Lincoln voting yea. On February 17, the House again referred the bill and a proposed amendment to a select committee, which reported back with an amendment of their own on February 18. The House concurred in the amendment of the select committee. A further amendment failed by a vote of 23 yeas to 53 nays, Lincoln voting nay. The House passed the bill on February 21, by a vote of 78 yeas to 2 nays, Lincoln voting yea. On February 23, the Senate referred the bill to the Committee on Canals and Canal Lands, which reported back with amendments on February 24. The Senate approved the first, second, and third amendments, and tabled the others. On February 25, the Senate referred the bill and the tabled amendments to a select committee, which reported back with further amendments later the same day. The Senate voted to strike out sections 5, 6, and 7, and insert new language in lieu thereof. They then voted to strike out sections 8 and 9. The Senate passed the bill as amended on February 27. On February 28, the House concurred in the amendments from the Senate, by a vote of 45 yeas to 27 nays, Lincoln voting yea. On March 2, the Council of Revision approved the bill and the act became law.
Illinois House Journal. 1836. 10th G. A., 1st sess., 360, 552, 561-64, 604-06, 607-08, 614-15, 653, 663, 731, 765, 793, 800; Illinois Senate Journal. 1836. 10th G. A., 1st sess., 476, 497, 513, 519, 524, 532-533, 562, 590.
2In 1836, the Board of Canal Commissioners reported to the General Assembly that previously, construction costs for the canal had been greatly underestimated. They determined that Lake Michigan was the only possible source of water (or “feeder”) for the canal, and that the canal should be built deeper and wider because that would be cheaper than having to enlarge a too-small canal in the future. The Board also determined the starting point of the canal should be the north fork of the south branch of the Chicago River, approximately four miles southwest of Chicago.
Report of the Canal Commissioners of Illinois to Governor John R. Tanner (Springfield, IL: Phillips Bros., 1901), 113-15.
3The Board of Canal Commissioners’ 1836 plan called for a canal 60 feet wide at the waterline, 36 feet wide at the bottom, and six feet deep. For construction and administration purposes, the Board broke up the canal into three divisions: the Summit was the 34-mile section beginning at Chicago and running westward.
Report of the Canal Commissioners of Illinois to Governor John R. Tanner (Springfield, IL: Phillips Bros., 1901), 113-15; James H. Krenkel, Illinois Internal Improvements, 1818-1848 (Cedar Rapids, IA: Torch Press, 1958), 42.
4The Ausaganaskee Swamp, also called the Saganaskee Swamp or Slough, is located between the Calumet and Des Plaines Rivers southwest of Chicago in Cook County.
5Section 10 of the 1829 act mentioned here declared it lawful for the Board of Commissioners “ to enter, and take of, and use, any lands, waters, and streams, necessary for” the construction of the canal.
“An Act to Provide for Constructing the Illinois and Michigan Canal,” 22 January 1829, Revised Code of Laws, of Illinois (1829), 14-18.
Printed Document, 6 page(s), Laws of the State of Illinois, Passed by the Tenth General Assembly (Vandalia, IL: William Walters, 1837), 39-44, GA Session: 10-1