City of Moline v. Chicago, B.&Q.R. Co.

• Decision Date: 21 February 1914
• Citation: 104 N.E. 204,262 Ill. 52
• Court: Illinois Supreme Court
• Parties: CITY OF MOLINE v. CHICAGO, B. & Q. R. CO.

262 Ill. 52

104 N.E. 204

CITY OF MOLINE

v.CHICAGO, B. & Q. R. CO.

Supreme Court of Illinois.

Feb. 21, 1914.

Appeal from Rock Island County Court; Benjamin S. Bell, Judge.

Proceedings by the City of Moline to assess the cost of street improvements. From a judgment refusing to set aside an order confirming the assessment against its property and allow it to file objections, the Chicago, Burlington & Quincy Railroad Company appeals. Reversed and remanded, with directions.

J. A. Connell, of Chicago, and Walker, Ingram & Sweeney, of Rock Island, for appellant.

James M. Johnston, of Moline, for appellee.

CRAIG, J.

This is an appeal from a judgment against certain property of the appellant, the Chicago, Burlington & Quincy Railroad Company, rendered in a special tax proceeding brought by the city of Moline for the assessment of the cost of paving Third avenue, in said city. The petition was filed in the office of the clerk of the county court on June 13, 1913, and presented to the Hon. Benjamin S. Bell, probate judge of Rock Island county, who had been requested by said clerk to organize and hold the June term, 1913, of said county court; the regularly elected county judge of said county having resigned. Judge Bell, as acting judge of said county court, granted the prayer of the petitioner and directed the commissioner appointed to make an assessment of the cost of said improvement by special taxation, as provided by the ordinance. Said commissioner on the same day filed his assessment roll, and the court ordered that objections to such assessment be filed by July 5th thereafter. On Juny 5th the commissioner filed with the clerk of the county court his affidavit of mailing and posting notices, to which he attached copies of such notices, and also a certificate of publication of a like notice for five days; the last publication being on June 18, 1913. On the same day the court, upon such affidavit of mailing, posting, and publishingof said notices, entered an order confirming such assessment roll. On July 8th the appellant filed its motion with the clerk asking to have said order of confirmation set aside and to be allowed to file objections to the assessment roll, alleging that it had not had sufficient time between the time application for confirmation was served on it and July 5, 1913, to investigate and determine with reference to said proceeding or how it affected its property; that its right of way which was assessed consisted of a narrow strip 1,046 feet long and just wide enough to lay one railroad track upon it; that it was used for a main track; that the assessment of $4,569.25 against the same as abutting frontage was wrong and erroneous, in excess of any possible benefit its property would receive from such improvement, and was grossly excessive and unreasonable; that the freightyards and freighthouse of the Chicago, Rock Island & Pacific Railway Company lay immediately south of said aveune; and that it has a meritorious defense to such assessment. The court denied said motion of appellant and refused to set aside the order of confirmation as to its property, to which appellant excepted and thereupon prayed an appeal and perfected its appeal to this court.

Three causes for error have been assigned: First, that the probate judge of the county had no constitutional right or authority to hold the term of the county court in which the proceedings were had; second, that the service by publication was insufficient to give jurisdiction; and, third, that the default and order confirming such assessment should have been set aside on the application of appellant.

[1] As to the first assignment of error, paragraph 239a of chapter 37 of Hurd's Statutes of 1911 is as follows: ‘That in case of the death, resignation or inability of the judge of a county or probate court, of any county, the clerk of such court shall designate and call any county or probate judge to hold such county or probate court; and such county or probate judge, when so designated and called, may hold such county or probate court and perform all the duties of the judge thereof until the appointment or election of his successor, or until the disability to act ceases.’ Appellant contends that this section is unconstitutional for the reason that the jurisdiction of probate courts is fixed by the Constitution, and that it is, in effect, an attempt to enlarge the jurisdiction of the probate courts and give them powers and jurisdiction in a class of cases not authorized by section 20 of article 6 of the Constitution of 1870, by which probate courts are created. Section 20 reads as follows: ‘The General Assembly may provide for the establishment of a probate court in each county having a population of over 50,000, and for the election of a judge thereof, whose term of office shall be the same as that of the county judge, and who shall be elected at the same time and in the same manner. Said courts, when established, shall have original jurisdiction of all probate matters, the settlement of estates of deceased persons, the appointment of guardians and conservators, and settlement of their accounts; in all matters relating to apprentices, and in cases of the sales of real estate of deceased persons for the payment of debts.’

The jurisdiction of probate courts, and the statutory enactments in regard thereto, have been before this court several times. In the case of Knickerbocker v. People, 102 Ill. 218, we decided that the act of the General Assembly of 1877 (Laws 1877, p. 79) as amended by the act approved May, 1881, in force July, 1881 (Laws 1881, p. 72), the first section of which established probate courts in each county of the state which had a population of 70,000 or more, was constitutional and valid, and that the probate court of Cook county, established under that act, was a lawfully existing court. In the later cases of In re Estate of Mortenson, 248 Ill. 520, 94 N. E. 120,21 Ann. Cas. 251, and Frackelton v. Masters, 249 Ill. 30, 94 N. E. 124, this court defined the jurisdiction of the probate courts, and held that the legislative enactment of 1909 (not the enactment under consideration), in so far as it attempted to extend the jurisdiction of probatecourts of include the supervision and control of testamentary trusts created by original wills, was invalid. Under the Constitution a probate court would have no jurisdiction in a proceeding for the collection of taxes and assessments, and no attempt has been made to extend the jurisdiction of probate courts to such matters by legislative enactment. The county courts of the respective counties have jurisdiction over such matters. The exact question to be determined is whether the law of 1885 (Laws 1885, p. 72), as amended by the law of 1899 (Laws 1899, p. 130), authorizing the probate judge of a county to hold the county court of the county in case of the death, resignation, or inability of the judge of the county court of said county, is constitutional.

[2] Counsel for appellant insist that the terms ‘court’ and ‘judge of the court’ are the same think and have the same meaning. But this is not always correct. It is true that the words ‘court’ and ‘judge,’ as used, are synonymous, and the judge of a court, when presiding or holding court, is by common usage referred to as the court; but the jurisdiction of a court to hear and determine a matter and the eligibility of a judge to hold that court are entirely different propositions. ‘A ‘court’ may be more particularly described as an organized body with defined powers, meeting at certain times and places for the hearing and decision of causes and other matters brought before it, and aided in this, its proper business, by its proper officers, viz., attorneys and counsel to present and manage the business, clerks to record and attest its acts and decisions, and ministerial officers to execute its commands and secure due order in its proceedings.' Black's Law Dict. 287, quoting Burrill. By the same authority a ‘judge ’ is defined as ‘a public officer appointed to preside and to administer the law in a court of justice; the chief member of a court, and charged with the control of its proceedings and the decision of questions of law or discretion.’ These definitions are those generally given by lexicographers. Generally speaking, the judge, while an indispensable part, is after all only a part of a court. The various courts are created and their powers and jurisdiction are defined by the Constitution, and the details of establishing the courts, providing for terms, clerks, and other officers, salaries, and other matters necessary to constitute a complete court, are left to the Legislature. Thus, while probate courts are created by the Constitution, it is left for the Legislature to establish those courts, which has done so by the law of 1877 as amended by the Law of 1881. It was not until after the legislative enactment that such courts, with clerks and other officers, were established. Under the Constitution a probate court is established in each county having a population of over 70,000. The Constitution has also prescribed the qualifications of judges of the courts so created. So that, so far as we are advised by the record, there was a county court fully and lawfully established in the county of Rock Island, and there was also a probate court established in that county. The person who had been elected judge of the county court had resigned, but that did not have the effect of abolishing the county court.

[3] The petition for the spreading of the tax was duly filed in the county court with the clerk thereof and stood for hearing in that court. Of course, there could be no session of the court without a judge. The law provides ‘that, in case of * * * the resignation of the judge of a county or probate court of any county, the clerk of such court shall designate and call any county or probate judge to hold such county or probate court.’...