Mcmanus v. Mcdonough
| Decision Date | 10 May 1883 |
| Citation | 107 Ill. 95,1883 WL 10272 |
| Parties | JOHN MCMANUSv.ROBERT MCDONOUGH et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Appellate Court for the Second District;-- heard in that court on appeal from the Circuit Court of Marshall county; the Hon. N. M. LAWS, Judge, presiding.
Messrs. BARNES & MUIR, for the plaintiff in error:
The statute requires the justice to name eighteen persons having the qualifications of jurors, two-thirds of whom shall not be residents of the town where the road is located. (Rev. Stat. 1874, p. 925, sec. 80.) The record does not show but what all, or whether any, of the persons named by the justice as jurors, were residents of the interested town. This renders the proceeding invalid.
Again, the question of damages was submitted to a jury of six persons, which we submit was not a legal jury for that purpose, under our constitution. Section 13 provides that private property shall not be taken or damaged for public use, etc., compensation to be ascertained by a jury. This means a common law jury. Cooley's Const. Lim. 319; Copp v. Henniker, 55 N. H. 179; S. C. 20 Am. Rep. 194; Ross v. Irving, 14 Ill. 171.
This proceeding is not a civil case, within the meaning of section 5, article 2, of the constitution. Johnson v. Joliet and Chicago R. R. Co. 23 Ill. 203.
Where the constitution provides for a jury, without further explanation, it means one of twelve men. Lamb v. Lane, 4 Ohio St. 167.
The certificate presented to the justice failed to give him jurisdiction of the subject matter, it not describing the line of the road with sufficient certainty to enable the jury to pass on the owner's damages. Rev. Stat. 1874, chap. 121, sec. 174.
The record is fatal in not showing that the commissioners publicly announced their decision on the day of the hearing. (Sec. 73, Road law.) If the statute is not followed the road fails. Mitchell v. Indianapolis and St. Louis R. R. Co. 68 Ill. 286; Commissioners v. People, 4 Bradw. 391; Commissioners v. People, 2 Id. 24.
Mr. FRED S. POTTER, for the defendants in error:
It is objected that the record contains no specific statement that the commissioners decided, and publicly announced, that they had granted the prayer of the petition. The statute is directory, and involves a mere matter of procedure, and is in no sense jurisdictional. The law will presume that the commissioners did their duty, from the fact they did indorse the petition on the day of the hearing. The description of the road in the certificate is sufficient. The courses and distances need not be given. Besides, all the papers, including the survey, were before the justice as a part of the plaintiff's case.
If there had been no summons in fact, appellant's appearance gave the justice jurisdiction. Buel v. Trustees of Lockport, 3 N. Y. 199; Randolph County v. Ralls, 18 Ill. 29; Cooley's Const. Lim. 409.
The constitutional provision guaranteeing trials by jury is directed to proceedings known to the common law, and the same is true in regard to process. Curry v. Hinman, 11 Ill. 420; Cooley's Const. Lim. 410, note 2.
Section 80 of the Road law is directory, only. The selection of the jury is ministerial, not jurisdictional. It will be presumed the persons selected had the requisite qualifications. If the jury was unlawful, appellant should have challenged the array. A jury of six was enough. This court has held that a jury of six is no violation of the constitution in a proceeding to declare a female ““a dependent,” the result of which was to confine her until her majority. Petition of Ferrier, 103 Ill. 367.
Appellant, McManus, filed his petition in the Marshall circuit court for a common law writ of certiorari. The writ was served on the defendants, the commissioners of highways, the town clerk, and a justice of the peace. They made return of the record establishing a highway in the town of Saratoga, and assessment of damages in favor of McManus for locating a part of the road over his land. On the return, such proceedings were had thereunder in the circuit court that a judgment was rendered affirming the action of the commissioners sought to be set aside. On appeal to the Appellate Court the judgment of the circuit court was affirmed, and the case is brought to this court on appeal. A number of objections are urged for a reversal, a portion of which we shall proceed to consider, the others being wholly unimportant.
It is insisted that inasmuch as it does not appear from the record returned the commissioners publicly announced their conclusion or decision at the time of the hearing, the whole proceeding is void, under the 73d section of the Road and Bridge law, as it requires them at the hearing to decide, and publicly announce, whether they will grant or refuse the prayer, and shall indorse upon or annex to the petition a brief memorandum of such decision, to be by them signed. The return shows that such a memorandum was indorsed and signed on the date of the hearing of the petition. An effort was made to disprove the date of this indorsement, and to show it was not made until the next day, and after the petition had been returned to the town clerk's office; but in a proceeding of this character the trial must be had on the record of the proceedings as returned, and oral evidence can not be heard to aid or contradict the record. We must, therefore, consider the case on the supposition that the indorsement was made on the day that it bears date, and at the end of the hearing. Inasmuch as this indorsement was made at the end of the hearing, we must presume that the decision was then made and publicly announced.
Although the trial must be had on the record as returned, we may indulge all natural and proper conclusions from the record. That the decision was made at the hearing in this case is an almost irresistible conclusion, from the fact that the indorsement was then made. The controlling purpose of this provision of the statute was to prevent delay in disposing of such petitions, and to prevent the commissioners from taking the case under advisement, and holding up their decision, and filing it with the town clerk, in such a manner as to prevent parties interested from learning the fact in time to take legal steps to have the decision reviewed, by appeal or otherwise. And even if the decision was not publicly announced, none of the results followed in this case that were intended to be prevented. That provision may be regarded directory, unless its omission can be seen to have defeated the purpose of the legislature, and produced the wrong intended to be suppressed by the enactment. The objection is merely technical.
It is insisted that the justice of the peace failed to acquire jurisdiction of the person of appellant, because the summons did not run in the name of the People. As has been repeatedly held by this court, the purpose of service is to obtain jurisdiction of the defendant, and when he enters his appearance the object is attained, and it waives all defects in the process, and even dispenses with process. In this case it appears, from the transcript of the justice's docket, that the parties appeared at the trial for the assessment of damages, and the appearance of appellant waived all defects in the summons. This practice is so elementary and familiar, that we had not supposed we would be called on to announce it again.
It is urged that the certificate of the commissioners to the justice of the peace does not describe the road with sufficient certainty, and describes no route. It states that the proposed road commences at a point twenty-five feet west of the south-west corner of the south-east quarter of section 17, township 13 north, range 8 east, fourth principal meridian, on the section line between sections 17 and 20, in the same township; running thence in a northerly direction, on the most eligible route, to a point in the public highway twenty-five feet west of the center of section 17, in the same township, which road passed over and is claimed to damage the land described and owned as follows, etc. The 78th section of the Road and Bridge law requires the commissioners, when they are unable to agree with the owner as to the amount of damages to be paid him, and they have not been released, to certify the fact to a justice of the peace, and to describe the road, and the land over which it is to run. In this case there is no objection that the land is not sufficiently described, and we think that the description of the road conforms to the requirements of the statute. It does not require the certificate to give the survey or the courses and distances, but simply a description of the road, and here is a description sufficient to enable that part of the road to be found. It would, under this...
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