Drainage Com'rs of Town of Niles v. Harms
Decision Date | 19 February 1909 |
Citation | 87 N.E. 277,238 Ill. 414 |
Parties | DRAINAGE COM'RS OF TOWN OF NILES v. HARMS. |
Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Cook County; Axel Chytraus, Judge.
Proceedings by the Drainage Commissioners of the Town of Niles against Henry Harms, to obtain a right of way and assess damages for a drain. From a judgment dismissing an appeal to the superior court from the judgment of the justice's court, defendant appeals. Affirmed.Coburn & Case (Benjamin D. Magruder, of counsel), for appellant.
Julius H. Geweke (Millard F. Riggle, of counsel), for appellees.
Drainage district No. 1, of the town of Niles, in Cook county, is organized under the farm drainage act (Hurd's Rev. St. 1908, c. 42). Its commissioners commenced a proceeding before a justice of the peace, under sections 19 and 20 of that act, to assess the damages to various owners of land over which the work was located, including appellant, who filed a cross-petition, and damages to the amount of $1,097.50 were assessed in his favor. The act provides that if the commissioners are unable to procure the right of way by agreement, they shall file a statement in writing with some justice of the peace, who shall issue a venire for a jury of six disinterested landowners, and cause notice in writing to be served upon the owner or owners; that the jury shall hear the evidence as to the value of the land and all damages consequent upon the construction of the proposed work, and may go upon the premises for the purpose of viewing them; that they shall return as their verdict the amount of damages, and the justice shall enter judgment for the amount of such verdict, which judgment shall be final and conclusive; and that the justice shall file in the office of the clerk of the drainage commissioners a certified transcript of the proceedings before him, which shall be recorded in the drainage record. Notwithstanding the provision that the assessment of damages before the justice shall be final and conclusive, the appellant filed an appeal bond in the superior court of Cook county, and a supersedeas was issued to the justice of the peace, who sent a transcript of the proceeding to the superior court. On motion of the appellees the appeal was dismissed by the superior court, and the appellant brings the record to this court by his further appeal.
The only question to be decided is whether the superior court erred in dismissing the appeal, and if no appeal from a justice of the peace to a circuit or superior court in a statutoryproceeding of this kind is authorized by statute or Constitution, the judgment must be affirmed. There is much argument by counsel that the act authorizing the proceeding before a justice of the peace is in violation of the Constitution because it deprives a landowner of his property without due process of law and without trial by jury, as contemplated by the Constitution, and without compensation ascertained by such a jury. In the case of McManus v. McDonough, 107 Ill. 95, this court had before it the question whether a trial by a justice of the peace and a jury of six men to ascertain the amount of damages to be paid to the owner of land for acquiring a perpetual easement for a public highway was a violation of any constitutional right. It was said that trial by jury was never enjoyed at the common law, or in this state before the adoption of the present Constitution, in statutory proceedings under the power of eminent domain, and it was held that the only limitation of the present Constitution is that where the damages are not paid by the state, they must be assessed by a jury, and the Constitution authorizes a jury of six in civil cases before justices of the peace. It was therefore decided that no constitutional right was interfered with by the act under which the proceeding was carried on. The question, however, whether the drainage act violates constitutional provisions by conferring jurisdiction upon justices of the peace is not properly raised upon this record, which involves only the single question whether an appeal is given by the law from the judgment of the justice fixing the amount of damages. If there is no right of appeal the superior court committed no error in dismissing the appeal, and if the Legislature could not confer jurisdiction upon a justice of the peace, the remedy of a party injuriously affected is not by an appeal. Section 2, art. 6, of the Constitution provides that this court shall have original jurisdiction in cases relating to the revenue, in mandamus, and habeas corpus, and appellatejurisdiction in all other cases, and it is argued that the drainage act violates that provision, both because this court has appellate jurisdiction in all cases except those in which it has original jurisdiction, and because a freehold is involved, and the appellate jurisdiction is preserved by section 11 of said article 6. If it should be admitted that section 2 confers upon this court appellate jurisdiction in all cases other than those in which it has original jurisdiction, it would not follow that an appeal is thereby allowed from a justice of the peace to the circuit court for a trial de novo. The question here is whether there is an appeal from the justice of the peace to the circuit court, and not whether this court may exercise appellate jurisdiction in this case and review the judgment of the superior court, which no one disputes. If the provision of section 2 is to be construed as appellant desires, and then is to be applied literally, it would give this court appellate jurisdiction of the proceedings before the justice of the peace, and it would not follow that there must be an intermediate appeal to some other court for a trial de novo.
Recurring to the Constitution to ascertain whether the superior court of Cook county had jurisdiction of the appeal from the justice of the peace, which is the question in this case, we find that section 12 of article 6 provides that the circuit courts shall have original jurisdiction of all cases in law and equity, and such appellate jurisdiction as is or may be provided by law. The circuit court has no appellate jurisdiction by virtue of the Constitution and cannot entertain an appeal that is not provided for by statute. The general rule that a right to an appeal is purely statutory has been settled beyond controversy. The decision of an inferior court or tribunal acting within its jurisdiction is final, unless provision is made by the statute for an appeal from such decision. Appeals for the purpose of obtaining trials de novo are unknown to the common law, and can only be prosecuted where they are expressly given by statute. Schooner Constitution v. Woodworth, 1 Scam. 511;Matter of Storey, 120 Ill. 244, 11 N. E. 209. In Ward v. People, 13 Ill. 635, the statute under which the judgment was rendered did not provide for an appeal, but the right was claimed under a general statute allowing appeals from judgments of justices of the peace to the circuit court, and it was held that the court could not, without doing violence to the manifest intention of the Legislature, hold that the general statute allowing appeals in all cases except on judgments confessed embraced cases under that statute. In Skinner v. Lake View Avenue Co., 57 Ill. 151, the statement that the decision of a justice of the peace is final where the statute makes no provision for an appeal was repeated, and also that where the statute provided that the decision should be final an appeal could not be sustained without overriding the statute, but it was held that there was a right of appeal from the circuit court to this court where the judgment or decree was final and related to a freehold-a question which is not involved in this case.
It is equally clear that an appeal could not be taken in this case under the general statute allowing appeals in other cases from justices of the peace without overriding the provision that the judgment shall be final. In Peak v. People, 76 Ill. 289, it was held that a writ of error would lie from this court to the county court in a bastardy proceeding; but the distinction between that writ as a writ of right at the common law and an appeal was pointed out, and it was said that a right of appeal exists only by virtue of some statute giving it, being merely a statutory right. That case answers the claim that there must be an appeal from the justice of the peace to the circuit court in order that the case may eventually reach this court. Peak was convicted in the county court, and on appeal to the circuit court was again convicted. He appealed to this court, and the judgment of the circuit court was reversed for want of jurisdiction to entertain the appeal; there being no statute authorizing it. Peak v. People, 71 Ill. 278. That left the judgment of the county court in full force, and Peak sued out a writ of error from this court to review the judgment of the county court. The writ of error was sustained as a writ of right at the common law, but the court referred to the former appeal, and said that it was then held that as no appeal to the circuit court had been provided by statute in that class of cases, none would lie to the circuit court or thence to this court. If the constitutional provision were construed as the appellant contends it should be, and could be, applied to this case, the appeal to the circuit court could not be sustained. While a writ of error is a writ of right in cases to which it applies, and may be sued out of the court having appellate jurisdiction without any statute, an appeal must be regulated by statute. A constitutional provision authorizing an appeal requires legislation to make it effective. A party with nothing but the Constitution as his authority could not bring a case to this court by appeal, for the reason that the terms, conditions, and rules under which an appeal may be taken and the cause transferred to the...
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