Damon v. Barker

Citation88 N.E. 278,239 Ill. 637
PartiesDAMON et al. v. BARKER et al.
Decision Date23 April 1909
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Appeal from Ford County Court; H. H. Kerr, Judge.

O. H. Damon and others presented a petition to the county court for the organization of a drainage district, and such proceedings were had that an order was entered confirming the report of the commissioners and finding the district duly established. From this order Jesse G. Barker and another, landowners within the district, appealed, and petitioners moved to dismiss the appeal. Appeal dismissed.Cloud & Thompson and A. L. Phillips, for appellants.

Ray & Dobbins and L. A. Cranston, for appellees.

DUNN, J.

The appellees presented a petition to the county court of Ford county for the organization of a drainage district under the levee act, to be known as Drummer Creek Drainage District,’ and such proceedings were had that an order was entered confirming the report of the commissioners and finding the district duly established as provided by law, in accordance with section 16 of said levee act (Hurd's Rev. St. 1908, c. 42). From this order the appellants, two owners of land included within the boundaries of the district, have taken an appeal to this court. The appellees have entered a motion to dismiss the appeal.

Appellants concede that, prior to the adoption of the practice act of 1907 (Hurd's Rev. St. 1908, c. 110), they had no right of appeal from such an order as the one in question here, except such as was given by sections 122 and 123 of the county court act (Hurd's Rev. St. 1908, p. 655, c. 37), and that such sections gave them no appeal to the Supreme Court. They insist that under section 118 of the practice act they now have an appeal to this court, because that section provides that appeals from county courts in cases in which a franchise or freehold, the validity of a statute, or construction of the Constitution is involved, shall be taken directly to the Supreme Court, and appellants say that in this case there are involved both the franchise of being a corporation and the validity of the amendment of May 20, 1907, to the levee act (Laws 1907, p. 274), restricting the right of petitioners to withdraw from the petition.

Section 118 of the practice act of 1907 is section 88 of the former act, amended by the insertion of a single clause adding to the cases in which appeals shall be taken directly to the Supreme Court, those in which the validity of a municipal ordinance is involved and in which the trial judge shall certify that in his opinion the public interest so requires. It makes no change in the right of appeal in cases involving a franchise or the validity of a statute. As to those cases the language of the two sections is precisely the same, and no change is introduced into the law. As to them the provisions of section 118 are to be construed as a continuation of those of section 88, and not as a new enactment. Such is the requirement of section 2 of chapter 131 of the Revised Statutes. People v. Zito, 237 Ill. 434, 86 N. E. 1041. It being conceded that no right of appeal existed prior to the act of 1907, none exists since its adoption, because it made no change in the law, but merely continued it as it was. However, section 118 has conferred no right of appeal to any court, nor did section 88. The right of appeal...

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