Bd. of Supervisors v. Magoon

• Decision Date: 13 March 1884
• Citation: 109 Ill. 142,1884 WL 9781
• Parties: BOARD OF SUPERVISORSv.H. S. MAGOON.
• Court: Illinois Supreme Court

109 Ill. 142

1884 WL 9781 (Ill.)

BOARD OF SUPERVISORS

v.H. S. MAGOON.

Supreme Court of Illinois.

Filed at Ottawa Mar. 13, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Second District;--heard in that court on appeal from the Circuit Court of Jo Daviess county; the Hon. WILLIAM BROWN, Judge, presiding.

Messrs. D. & T. J. SHEEAN, for the appellants:

The finding of the giving of the proper notice by the supervisors in their order, is conclusive in this proceeding. The law does not require the notices to be preserved. Shinkle v. Magill, 58 Ill. 424.

The averments in the return to the writ are important to be considered. Commissioners v. Supervisors of Carthage, 27 Ill. 142; Commissioners v. Harper, 38 Id. 109.

The commissioners might have received any competent evidence of the posting, and if their order shows that such fact has been proved, it is sufficient. Frizell v. Rogers, 82 Ill. 111.

An appeal presupposes and is a recognition of jurisdiction, and the finding by the supervisors that the jurisdictional notice was given, is sufficient. Wells v. Hicks, 27 Ill. 345; Frizell v. Rogers, 82 Id. 111.

There is no limit in the statute to the time when the supervisors may hear the appeal, except it shall be in advance of the time they meet, to fix it a sufficient length of time to allow the party appealing to give the three days' notice before the appeal is heard. The case of Corley v. Kennedy, 28 Ill. 143, was made under a very different statute.

In this case all parties met at the time and place fixed by the supervisors, and appellee obtained a continuance of the hearing, and at the adjourned meeting the parties again met, and introduced evidence. This of itself was a waiver of the objection now made. Anderson v. Wood, 80 Ill. 16; Town of Winfield v. Moffatt, 42 Id. 49.

The statute does not require that the supervisors shall make public proclamation of adjournments, or post up notices thereof; but if it did, the omission to do so is not jurisdictional. Allison v. Commissioners, 54 Ill. 170.

Section 72 of the Road law, limiting the time for a final decision, applies only to the commissioners, and not to the supervisors. If it did, it would be merely directory. Ryan v. Vanlandingham, 7 Port. 424; People v. Cook, 14 Barb. 290; Holland v. Osgood, 8 Vt. 280; Whalin v. City of Macomb, 76 Ill. 52.

By taking the appeal and obtaining a continuance, the party appealing is estopped from denying jurisdiction in either the commissioners or the supervisors. Heffner v. Vandolah, 57 Ill. 520; Dows v. Naper, 91 Id. 44; Frick v. Trustees of Schools, 99 Id. 167.

Mr. M. Y. JOHNSON, and Mr. E. L. BEDFORD, for the appellee:

Nothing was before the court but the question of the regularity of the proceedings as they appeared of record. Doolittle v. G. and G. W. R. R. Co. 14 Ill. 383; Commissioners v. Supervisors, 27 Id. 140.

No trial can be had upon any issue of fact, or anything dehors the record. Commissioners v. Supervisors, 27 Ill. 140; C. and I. R. R. Co. v. Fell, 22 Id. 333.

Notice must be given, as required by statute, of the meeting of the commissioners of highways. A want of it will vitiate their proceedings. It is jurisdictional. Commissioners v. Harper, 38 Ill. 103; Cooley v. Kennedy, 28 Id. 143.

Giving the notice was a jurisdictional fact, as it is nowhere recited in the record they were posted, and no affidavit or evidence of record as to the fact. It could never be presumed to give jurisdiction. Shinkle v. Magill, 58 Ill. 424; Frizell v. Rogers, 82 Id. 109.

A party is never estopped from denying jurisdiction when it does not in fact exist, and the statute referred to is not merely directory, but is mandatory. Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellee sued out a common law writ of certiorari, to bring before the court the record of the proceedings of the road commissioners of Scoles Mound township, in Jo Daviess county, and of three supervisors, refusing to alter a road in that township. On the application and petition for its alteration, the road commissioners refused to grant the prayer of the petition, and the case was appealed to three supervisors, who, after hearing the evidence for and against, on a protracted trial, lasting a number of days, affirmed the decision of the road commissioners, and to vacate and quash these proceedings appellee sued out the writ. On a hearing in the circuit court the proceeding was quashed. From that judgment an appeal was prosecuted to the Appellate Court for the Second District, which affirmed the judgment of the circuit court, and the case is brought to this court by appeal.

The scope of this writ is quite limited at common law. Its operation was enlarged, or the practice regulated, by acts of parliament never in force in this State. It was used principally in criminal cases, to remove them from inferior tribunals to the court of King's Bench for trial. The writ went, as a matter of course, on the application of the Crown; but when made by the defendant, he was required to show cause. It, as to the defendant, or a private person or private right, was not a writ of right. ( Trustees of Schools v. School Directors, 88 Ill. 100.) Cause must be shown by the petition, or it will not be granted, or if it is granted, it must be quashed. It was also used to bring before the court of King's Bench the record of commissioners of the poor, and other rates, and in cases where an individual was sued in a court having no jurisdiction, and no appeal or writ of error was given by law, or the jurisdiction had been exceeded, or it appeared that the proceeding was against law. The proceedings on the return of the record were confined solely to the record of the lower court or tribunal, unless it were in criminal cases removed to the King's Bench for trial, as other criminal cases instituted, to be tried at nisi prius. The purpose of the writ was, in all cases, to prevent injustice. Except in criminal cases it was only allowed where there was no appeal or writ of error, and where there was a wrong and injury that could not be otherwise corrected. It was used to prevent irreparable wrong or injury. Unless the writ was asked in a case involving a private matter, it was required to be sought by the attorney for the Crown, or the prosecutor. In matters in which the rights of the public were concerned, the writ was alone prosecuted by the representative of the public. But whether it shall, or not, be granted, is largely a matter of discretion. The doctrine was so announced in Hyslop v. Finch, 99 Ill. 171, and the same doctrine was recognized in Trustees of Schools v. School Directors, 88 Ill. 100, and they announce that this discretion is not an arbitrary exercise of judicial power, but is one that is subject to review. If the discretion has been improvidently exercised in issuing the writ, the error will be corrected on appeal.

If not the prime mover in this proceeding, appellee was one of its promoters. He signed the petition, and seems to have been active in pressing its allowance, and he, at every step in the proceeding, which was to alter a road running over his land, as we understand the record, pressed the petition precisely as though every step was regular and in exact conformity, in every particular, with the requirements of the statute. He had all the notice, and every right was extended to him, that he was entitled to under the statute. He was pressing the petition, and if there was any material requirement omitted he must have then known it, and should have had it corrected before proceeding further. He had no right to trifle with the process of the law, to speculate on the chances of a favorable result, and when it proved adverse, then to turn and claim that what he did was illegal and void. To permit him to so act would...