Hercules Iron Works v. Elgin

• Decision Date: 12 May 1892
• Citation: 30 N.E. 1050,141 Ill. 491
• Court: Illinois Supreme Court
• Parties: HERCULES IRON WORKS v. ELGIN, J. & E. RY. CO.

141 Ill. 491

30 N.E. 1050

HERCULES IRON WORKS

v.ELGIN, J. & E. RY. CO.¹

Supreme Court of Illinois.

May 12, 1892.

Appeal from city court of Aurora.

Proceeding by the Elgin, Joliet & Eastern Railway Company to condemn a right of way across the land of the Hercules Iron Works. Defendant appeals. Affirmed.

Charles Wheaton and William George, for appellant.

Williams, Holt & Wheeler, for appellee.

SHOPE, J.

This was a proceeding to condemn the right of way for appellee's railway across the land of appellant, begun and tried in the city court of Aurora. The jurisdiction of the city court, both in respect of the person of the defendant and subject-matter of the litigation, is questioned. A special appearance was entered, and motion made to quash the summons to return, which was overruled and exception taken. The point has been waived by the subsequent entry of general appearance and defending upon the merits. The record shows that before the entry of special appearance the cause had been continued by agreement of the parties. Subsequently by stipulation of the parties leave was given the railway company to amend the original petition so as to reduce the amount of land sought to be taken from appellant; and finally appellant not only appeared and defended generally, but filed its cross petition invoking the aid of the court in its behalf. Any objection to the original process or its service upon appellant has been waived. Mix v. People, 106 Ill. 425;Beal v. Harrington, 116 Ill. 113, 4 N. E. Rep. 664; Leslie v. Fischer, 62 Ill. 118;McManus v. McDonnough, 107 Ill. 100;Baldwin v. Murphy, 82 Ill. 489.

It is said the court erred in taking jurisdiction in term time, and in not ordering a venire for a special jury, to assess compensation, etc., as in cases to be heard in vacation. By the statute, the person, body politic, or corporate, desiring condemnation, etc., may ‘apply to the judge of the circuit or county court, either in vacation or term time, * * * by filing with the clerk a petition, setting forth,’ etc., ‘and praying such judge to cause the compensation to be paid the owner to be assessed.’ Section 2, c. 47, Rev. St. If the application is to the judge in vacation, more than the mere filing of the petition is required. Section 3 of the act contemplates, in such cases, the presentation of the petition to the judge, who is required to note thereon the day when it is presented, and also a day when he will hear the same, and order summons to residents, and publication of notice to nonresidents, returnable accordingly. The sixth section prescribes the mode of obtaining a jury in cases where the hearing is fixed in vacation, and applies only in such cases. There is no provision made for obtaining a jury where the cause is to be heard in term time, and it follows necessarily, we think, that the compensation is to be ascertained by the jury regularly impaneled for the term. The panel having been selected according to the statute regulating the selection and choosing of jurors for the court, a jury is provided for the ascertainment of compensation, as ‘prescribed by law.’ If jurors from the regular panel called to try the cause were not freeholders it would, at most, amount to a cause for challenge of the individual juror. Undoubtedly, as we held in Haslam v. Railway Co., 64 Ill. 353, if the application is made to the judge in vacation, he may note a day when he will hear the cause and order a jury, as provided in section 6 of the act, and proceed with such special jury, although a term may have intervened, or the date noted be one of the days of a term of his court. In the case last cited we held that section 6 should be construed to read that, ‘in cases fixed in vacation for hearing, it shall be the duty of the clerk,’ etc. And it is clear that, without the order of the judge fixing a day for the hearing, there is no power or authority to draw a special jury, in accordance with that section of the act. It is the order of the judge in vacation, fixing a day for the hearing, etc., that determines its character as a proceeding in vacation. But when the petition is filed with the clerk, in vacation, and no order is made by the judge fixing a day for the hearing, it is correct practice, under the statute, for the clerk to issue summons returnable to the ensuing term of court, as in other cases, and as was here done. The application is then treated as made to the judge in term time, and stands for hearing upon the docket of the term at any time not less than 10 days after due service of process. Saction 5, c. 47, Rev. St.; Bowman v. Railway Co., 102 Ill. 468;Johnson v. Railway Co., 111 Ill. 418.

It is also insisted that the city court is without jurisdiction in proceedings under the eminent domain act. The constitution of the state is silent as to the mode of ascertaining just compensation to be paid for private property taken or damaged for public use, except that the same, when not to be made by the state, ‘shall in all cases be ascertained by a jury, as shall be prescribed by law.’ Article 2, § 13. There is therefore no limitation upon the power of the legislature to confer jurisdiction upon any of the courts of the state, having original jurisdiction. The exercise of the right of eminent domain, being in derogation of common right of property, the mode prescribed for its exercise must be strictly pursued, and it follows that appellant's contention must be sustained, unless the legislature has expressly, or by necessary implication, conferred jurisdiction upon the city court in such cases. Section 1, art. 6, of the constitution of 1870, provided that judicial power shall be vested in certain enumerated courts, ‘and in such other courts as may becreated by law in and for cities and incorporated towns.’ Courts of record had previously been established in various cities of the state, which were continued in existence, until otherwise provided by law, by the fifth section of the schedule to the constitution. By the act in force July 1, 1874, (1 Starr & C. St. p. 736; Rev. St. 1891, c. 37, § 240,) the legislature sought to establish uniformity in name, organization, and jurisdiction of such city courts, and to provide for the organization of like courts in other cities of the state desiring the same and having the required population. In defining the jurisdiction of such courts, it is enacted: ‘They shall have concurrent jurisdiction with the circuit court, within the city in which the same may be, in all civil cases, and in all criminal cases except treason and murder, and in appeals from justices of the peace, in said city; and the course of proceeding and practice in such courts shall be the same as in the circuit courts so far as may be.’ Concurrent jurisdiction is that jurisdiction exercised by different courts, at the same time, over the same subject-matter, and within the same territory; and wherein litigation may, in the first instance, resort to either court indifferently. Bouv. Law Dict. ‘Jurisdiction;’ Rap. & L., same title. Hence concurrent jurisdiction with the circuit court, as here used, means equal power and authority with the circuit court to hear and determine all civil and criminal causes, treason and murder excepted, the subject-matter of which arises within the prescribed territorial limits of the city. This is so plainly the meaning of the language employed that construction is not admissible. Moreover, by the fifth section of the act, after providing for the election of judges of such courts, it is enacted: ...