Hyslop v. Finch

• Decision Date: 14 May 1881
• Parties: HENRY HYSLOP et al.v.MARTIN FINCH.
• Court: Illinois Supreme Court

99 Ill. 171

1881 WL 10534 (Ill.)

HENRY HYSLOP et al.

v.MARTIN FINCH.

Supreme Court of Illinois.

Filed at Ottawa May 14, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Second District;--heard in that court on appeal from the Circuit Court of Grundy county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

Petition was filed by appellee, in the circuit court of Grundy county, for a common law certiorari. An order was made by one of the circuit judges, in vacation, that the writ issue.

At the March term, 1879, of the circuit court of Grundy county, by stipulation of parties, it was agreed that the facts stated in the petition should be taken and accepted as a return to the writ, and thereupon appellants moved to quash the writ, but this motion was overruled; and thereupon the court adjudged that the record and proceedings brought before it by the writ were illegal and void, and wholly without effect for establishing a public highway.

Proper exception was taken to the several rulings of the circuit court, and appellants took the case, by appeal, to the Appellate Court for the Second District. That court, by its judgment, affirmed the judgment of the circuit court. The present appeal is from the last named judgment.

The matters presented by the record, material to the questions here discussed, are: On or about the 23d of May, 1877, a petition, duly signed, posted and verified, was presented to the commissioners of highways of the town of Vienna, in Grundy county, praying that a certain public highway, therein particularly described, be established and maintained--the line whereof crosses the lands of appellee and others; that on the 30th of June, 1877, the commissioners having met, etc., decided and publicly announced that they granted the prayer of the petition, and indorsed upon the petition a brief memorandum of their decision, signed by them as commissioners; that the commissioners were unable to agree with appellee in regard to his damages, and thereupon, on the 17th of July, 1877, they certified to W. H. Curtis, a justice of the peace of said county, that they were unable to agree upon the damages that the different owners would sustain by reason of the location of said highway,--among which owners appellee was one,--and asked for a jury to assess the damages of said owners; that thereupon said justice of the peace proceeded to give said commissioners the names of eighteen men from which to select a jury for the purpose of assessing the damages of said owners, including appellee; that thereupon the said justice of the peace, in the absence of appellee, issued a summons for six men to appear before him, at, etc., on the 24th of July, 1877, at 10 o'clock A. M., to assess the damages of said owners; that on said 24th of July, 1877, the said jury, composed only of six men, was impanelled, and proceeded to assess the damages of the land owners, including appellee, and, as to appellee, their verdict was as follows: “We, the undersigned jurors, after viewing the location of said contemplated road, and carefully considering the damages as well as the benefits to the owners of the land over which said road is designed to run, do hereby return this our verdict, which is as follows, to-wit: * * * For Martin Finch we balanced the benefits against the damages, and found them equal;” and that afterwards, and on the 20th of August, 1877, the commissioners proceeded to lay out and establish the highway, as prayed for in the petition. The road established is sixty feet in width.

The errors assigned are:

1st. The Appellate Court erred in affirming the judgment of said circuit court of Grundy county.

2d. The said Appellate Court erred in rendering judgment for costs against said appellants.

Messrs. JORDAN & STOUGH, for the appellants:

In assessing the damages, the jury were acting in the capacity of a judge, and an error of judgment on the part of the judge, either as to the facts or the law of the case, can not be inquired into on a writ of certiorari. Doolittle v. Galena and Chicago Union Railroad Co. 14 Ill. 381.

The jurisdiction of an inferior court being once established, the superior court will then presume facts sufficient to sustain its jurisdiction. Morgan v. Green, 17 Ill. 395; Commissioners v. Harper, 38 Id. 103.

After the jurisdiction of the inferior court has been once established, the superior court on certiorari will consider no error that does not affirmatively appear upon the record. Marq. and Pac. Rolling Mill Co. v. Morgan, 41 Mich. 296.

The laying out and opening of a public highway is not an exercise of judicial powers, but the presumption is that all the antecedent proceedings have been regular. Nealy v. Brown et al. 1 Gilm. 10; Waddle v. Duncan, 63 Ill. 226; Carr v. Fayette, 37 Iowa, 608.

The common law writ of certiorari can issue to inferior tribunals and jurisdictions only in cases where they exceed their jurisdiction, and in cases where they proceed illegally, and there is no appeal or other mode of directly reviewing their proceedings. People v. Williamson, 13 Ill. 660; Doo little v. Galena and Chicago Union Railroad Co. 14 Id. 381; Miller et al. v. Trustees of Schools, 88 Id. 26.

If the relator was dissatisfied with the damages assessed, he might have appealed to three supervisors of the county outside of the town, when another jury could have been called. Rev. Stat. 1874, pp. 928, 929, secs. 99 and 100; Hankins v. Calloway et al. 88 Ill. 155.

The petitioner having full notice of the time when and the place where the damages would be assessed, and failing to present any claim therefor at the time of such assessment, but wilfully absenting himself, is forever thereafter estopped from insisting upon any damages. Ferris v. Ward, 4 Gilm. 499; County of Sangamon v. Brown et al. 13 Ill. 207; Taylor v. Marcy, 25 Id. 426.

The writ of certiorari, when used for the purpose of reviewing the acts and decisions of special jurisdictions created by statute, and which do not proceed according to the course of the common law, does not issue ex debito justitiæ, but only upon application to the court, and special cause shown. Trustees, etc. v. School Directors, 88 Ill. 100; People v. Supervisors, 15 Wend. 198; In re Lantis et al. 9 Mich. 324; Holden v. County Comr's. 7 Metc. 565; Whateley v. County Comrs. 1 Id. 336.

That the writ should have been denied for laches, counsel cited In re Lantis et al. 9 Mich. 324; Perkins et al. v. Hadley, 4 Hayw. 143; Keys v. Maria Co. 42 Cal. 253; Harbaugh v. Martin, 30 Mich. 236; People ex rel. v. Drain. Commissioners, etc. 40 Id. 745.

Messrs. HILL & DIBELL, for the appellee:

As to the jurisdiction of the Supreme Court to entertain this appeal, counsel cited Lewis v. Shear, 93 Ill. 121; Hancock v. Tower, Id. 150; Morris v. Preston, Id. 215; Preston v. Gahl, 94 Id. 586; McGuirk v. Burry, 93 Id. 118; Whitmer et al. v. Comrs. Highways, 96 Id. 289; Baber v. Pittsburgh, Cincinnati and St. Louis Railroad Co. 93 Id. 343. The full value of land taken or sought to be taken for public use must be paid in money, regardless of any and all benefits or advantages which may result from laying the road. Comrs. of Highways v. Durham, 43 Ill. 86; Kine v. Defenbaugh, 64 Id. 291; Carpenter v. Jennings, 77 Id. 250.

A proceeding to condemn land for a right of way, being an extraordinary and summary remedy, and not according to the course of the common law, the party exercising the power must strictly observe all the requirements of the statute under which he acts. Chicago and Alton Railroad Co. v. Smith, 78 Ill. 96.

An appeal presupposes, and indeed is a recognition of, jurisdiction. Where the commissioners or jury act without or exceed their jurisdiction, certiorari is the proper remedy. An appeal can not remedy the evil complained of. Comrs. etc. v. Harper, 38 Ill. 103; Frizell v. Rogers, 82 Id. 112; Bailey v. McCain, 92 Id. 277.

As to the question of laches, counsel cited Trustees, etc. v. School Directors, 88 Ill. 100; People v. Supervisors of Alleghany, 15 Wend. 198; People v. Mayor, 2 Hill, 12; Elmendorf v. Mayor, etc. 25 Wend. 692; Thompson v. Muttnoonah Co. 2 Oregon, 34; Holden v. County Comrs. etc. 7 Metc. 565; Rutland v. County Comrs. etc. 20 Pick. 77.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

Three questions are presented for our consideration upon this record:

First--Has this court jurisdiction,--no question of law having been certified by the Appellate Court?

Second--Is the writ barred by laches in suing it out?

Third--Was the order of the commissioners of highways, ordering the highway to be laid out and established, void?

1. The common law writ of certiorari simply brings before the court, for inspection, the record of the commissioners of highways; and its judgment affects the validity of the record alone-- i. e.--determines that it is valid or invalid. Doolittle v. Galena and Chicago Union Railroad Co. 14 Ill. 381; People ex rel. v. Wilkinson, 13 Id. 660; Chicago and Rock Island Railroad Co. v. Whipple, 22 Id. 105; Chicago and Rock Island Railroad Co. v. Fell, Id. 333; Comrs. of Highways v. Supervisors, etc. 27 Id. 140.

Necessarily, therefore, no property rights are directly involved, and the right of appeal, without any certificate, exists, under the authority of Baber v. Pittsburgh, Cincinnati and St. Louis Railroad Co. 93 Ill. 342.

In that case, at page 355, it was said: “Inasmuch as the 90th section, and the provisions of the 8th section, which relate to the specific classes therein provided for, have reference only to such legal proceedings as are instituted to recover either chattels or money, it follows that there is yet another class of cases which do not directly involve property rights, and therefore do not fall within either of the three classes above mentioned. This class of cases will include bills for divorce, actions of mandamus, and certain classes of cases of bills for injunctions, where they are not in effect brought to recover...