Gerdes v. Champion

• Decision Date: 20 November 1883
• Citation: Gerdes v. Champion, 108 Ill. 137, 1883 WL 10365 (Ill. 1883)
• Parties: HENRY E. GERDESv.ROSWELL CHAMPION.
• Court: Illinois Supreme Court

108 Ill. 137

1883 WL 10365 (Ill.)

HENRY E. GERDES

v.ROSWELL CHAMPION.

Supreme Court of Illinois.

Filed at Ottawa Nov. 20, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Second District;--heard in that court on appeal from the Circuit Court of Whiteside county; the Hon. JOHN V. EUSTACE, Judge, presiding.

Messrs. J. & J. DINSMOOR, for the appellant:

The common law writ of certiorari may be issued to all inferior tribunals, etc., where it is shown that they have exceeded their jurisdiction, or have proceeded illegally, and no appeal or other mode of reviewing their proceedings is provided. Loomis v. Wilkinson, 13 Ill. 660.

The right to appeal in a road matter is a jurisdictional fact, which must appear on the record. All matters and proceedings relating to laying out roads are to be considered stricti juris. Frizell v. Rogers, 82 Ill. 109; Warne v. Baker, 35 Id. 382; Commissioners v. Harper, 38 Id. 103.

By statute (section 98 of the Road law of 1879) the appeal is not to the supervisors, but to the justice, and until the supervisors close up their part of the business the record of the proceedings remains with the justice, and must be treated as a cause before him. Hence it follows that the writ of certiorari should be sent to the justice while the appeal is pending before him. No one can appeal from the decision of the commissioners except he is ““one interested.” Road law 1879, sec. 98, Rev. Stat. chap. 121.

As to construction of statute finding who are interested, see Taylor et al. v. Town of Normal, 88 Ill. 526; Whitmer et al. v. Commissioners, 96 Id. 289; Town of Oswego v. Kellogg, 99 Id. 590.

The fact that proceedings in this case might be void for want of jurisdiction, is no reason why they may not be reversed where the record is brought up by a common law writ of certiorari. Loomis v. Wilkinson, 13 Ill. 660.

Messrs. MANAHAN & WARD, for the appellee:

It is not essential that the party appealing shall be an owner of land over which the projected road passes, as it was under the law of 1861. Whitmer v. Commissioners of Highways, 96 Ill. 289; Town of Oswego v. Kellogg, 99 Id. 590.

The status of the person appealing from the order of the commissioners, under the old law might rest in pais. Commissioners of Highways v. Supervisors, 53 Ill. 320; Town of Winfield v. Moffatt, 42 Id. 48.

The statute requires the original petitioners for the road to be freeholders, yet the petition need not allege that they are such. (Stager on Highways, 124; Brown v. McCord, 20 Ind. 270.) And where the question arises collaterally, proof of the status of the petitioners may be made by parol. Austin v. Allan, 6 Wis. 134; Bushnick v. Meresole, 10 Wend. 122.

The record of this road is an entirety, although a part of it is with the town clerk, part with the appellee, and the residue, as yet uncompleted, with the supervisors before whom the appeal is pending. The writ bringing up only the papers before the justice, can not suffice to determine the jurisdiction of the supervisors.

Appellant should wait until the record of this proceeding shall be embodied in the final order of the supervisors and deposited with the town clerk. Then the writ of certiorari will bring up the entire record, by which the jurisdiction of the supervisors must stand or fall. The recitals of that final order, if of jurisdictional facts, will be enough to confer jurisdiction. Commissioners of Highways v. Magill, 58 Ill. 422; Frizell v. Rogers, 82 Id. 109; Hawkins v. Galloway, 88 Id. 155.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a common law writ of certiorari, in the circuit court of Whiteside county, issued on petition of Henry E. Gerdes, against Roswell Champion, a justice of the peace, requiring him to send up a record of certain proceedings before him in regard to laying out a certain highway.

It appears that the commissioners of highways of the town of Hopkins, in Whiteside county, had received a petition praying for the laying out of a highway in the town. The commissioners, upon the hearing, refused the prayer of the petition. The order was indorsed on the petition and duly filed in the town clerk's office. One Tumbleson appealed from the decision of the commissioners to three supervisors, by filing, as he claims, the necessary papers before appellee, a justice of the peace. The justice summoned three supervisors to hear the appeal, who, upon the hearing, made a preliminary order granting the prayer of the petition. The supervisors then filed with appellee, a justice of the peace, a certificate, under section 78 of the Road and Bridge act, asking for a jury to assess the damages. The justice issued a venire for a jury, and fixed upon a day for trial, when this writ of certiorari was issued commanding him to send up a transcript of his record of the said proceedings had before him as justice of the peace. The circuit court, on motion, dismissed the writ, and this decision was affirmed in the Appellate Court. The petitioner not being satisfied with the decision of the Appellate Court, has prosecuted this appeal. The common law writ of certiorari may be awarded to all inferior tribunals and jurisdictions where it appears that they have exceeded the limits of their jurisdiction, or in cases where they have proceeded illegally, and no appeal is allowed, and no other mode is provided for reviewing their proceedings. ( People ex rel. Loomis v. Wilkinson, 13 Ill. 660.) In speaking of this writ, in Commissioners v. Harper, 38 Ill. 107, it was said: “The common law...