People ex rel. Foote v. Clark

• Decision Date: 17 April 1918
• Docket Number: No. 11995.,11995.
• Citation: 283 Ill. 221,119 N.E. 329
• Parties: PEOPLE ex rel. FOOTE et al. v. CLARK et al.
• Court: Illinois Supreme Court

283 Ill. 221

119 N.E. 329

PEOPLE ex rel. FOOTE et al.

v.CLARK et al.

No. 11995.

Supreme Court of Illinois.

April 17, 1918.

Appeal from Circuit Court, La Salle County; Samuel C. Stough, Judge.

Petition by the People, on the relation of Edward J. Foote and others, against Walter Clark and others, Commissioners of Highways, for writ of mandamus to compel such Commissioners to narrow a road. From an order refusing the writ and dismissing the petition, relators appeal. Affirmed.

J. E. Malone, Jr., of La Salle, for appellants.

Woodward & Hibbs, of Ottawa, for appellees.

CARTER, C. J.

This was a petition for a writ of mandamus filed in the circuit court of La Salle county to compel the commissioners of highways of the town of Vermilion, in said county, to narrow a road to the width of 40 feet. The writ was denied and the petition dismissed. From the order dismissing the petition and refusing the writ this appeal was prosecuted to this court.

In May, 1916, appellants filed their petition with the town clerk of said town to narrow a road one mile in length under the provisions of section 74 of the Road and Bridge Act of 1913 (Laws 1913, p. 552); the signers to said petition representing the majority of the landowners along the line of said road. Thereafter the petition was presented to the highway commissioners of said town and denied, the commissioners refusing to reduce the width of the road. Later, in June, 1916, this petition for a writ of mandamus was filed. While the petition was pending in the circuit court the Legislature amended section 74 of the Road and Bridge Act, said amendment going into effect July 1, 1917 (Hurd's Rev. St. 1917, c. 121). On November 2, 1917, the parties to this cause stipulated that:

‘If it shall appear to the court that the right of the relators to have the writ of mandamus prayed for has not been affected or destroyed by the passage of the act above referred to, then and in such event an order awarding the peremptory writ of mandamus as prayed for shall be entered herein; and if, on the contrary, it shall appear to the court that the said act hereinabove referred to has destroyed the right of the relators to have said writ issue, then and in such event said petition shall be dismissed.’

A jury was waived and the cause submitted to the court for trial upon the stipulation. The trial judge held that the amendment controlled at the time of the hearing and dismissed the petition.

The sole question involved in this appeal is whether section 74 of the act of 1913 as it stood on the statute books at the time this petition for mandamus was filed should control at the time of the hearing, or whether the amendment of said section in force July 1, 1917, should control the hearing on November 2, 1917.

Section 74 of the Road and Bridge Act of 1913, so far as it applies to the point here at issue, reads:

‘The commissioners of highways of any town or road district may reduce the width of any existing public road within any town or road district to a width of forty feet when the same is petitioned for by a majority of the land owners along the line of said road, within said town or district.’ Laws 1913, p. 552.

In People v. Commissioners of Highways, 270 Ill. 141, 110 N. E. 347, it was held that, when a petition conforming to the provisions of the above section 74 was filed with the highway commissioners, it was mandatory upon said commissioners to grant the petition. See, to the same effect, People v. Highway Com'rs, 279 Ill. 542, 117 N. E. 56;People v. Highway Com'rs, 280 Ill. 24, 117 N. E. 59. In 1917, while this petition for mandamus was pending in the circuit court, the Legislature amended part of said section 74, so that it now reads as follows:

‘The commissioners of highways of any town or road district may in their discretion reduce the width of any existing public highway in any town or road district to a width of forty feet when the same is petitioned for by a majority of the land owners along the line of said road within said town or district.’ Hurd's Stat. 1917, p. 2544.

The amendment, so far as it affects the question here, inserted the three words in italics, viz. ‘in their discretion.’ The history of the various amendments to this section of the Road and Bridge Act bearing on this question is set out in some detail in People v. Commissioners of Highways, supra, and need not be again stated here, except to say that the Road and Bridge Law, as it existed before the enactment of section 74 of the act of 1913, left it permissive with the road commissioners whether such petition should be granted or not. After this court held, in People v. Commissioners of Highways, supra, that the law as it then stood was mandatory upon the commissioners and not permissive or in any way left to their judgment, the Legislature, probably because of that decision, modified the law again, so as to leave it permissive with commissioners of highways whether such petition should be granted or refused.

At common law there was no statute or provision of the law under which an existing public highway might be narrowed. Unless legislative authority especially provides for the same, there is no right or privilege to any person or persons to have a highway narrowed. See 13 R. C. L. 62; 15 Am. & Eng. Ency. of Law (2d Ed.) 393. It has uniformly been held that the Legislature of this state, representing the public at large, has full and paramount authority over all public ways and public places, and that under such plenary power the Legislature may, in the absence of special constitutional restrictions, vacate or discontinue the right of the public in such public highways or invest municipal corporations with such authority. Cicero Lumber Co. v. Town of Cicero, 176 Ill. 9, 51 N. E. 758,42 L. R. A. 696, 68 Am. St. Rep. 155. In South Carolina v. Gaillard, 101 U. S. 433, 438, 25 L. Ed. 937, the court said:

‘It is well settled that, if a statute giving a special remedy is repealed without a saving clause in favor of pending suits, all suits must stop where the repeal finds them. If final relief has not been granted before the repeal went into effect, it cannot be after.’

This right or remedy to narrow a road must be held special under the statute, for it applied only to one particular subject, viz. the reducing of the width of an existing public highway.

‘The bringing of suit vests in a party no right to a particular decision, and his case must be determined on the law as it stands, and not when the suit was brought but when the judgment is rendered.’ Cooley's Const. Lim. (7th Ed.) 543, and cases cited.

See, to the same effect, 6 R. C. L. 322.

The Constitution of the United States does not, in terms, prohibit the enactment by the states of retrospective laws which do not impair the obligation of contracts or partake of the character of ex post facto laws. 6 R. C. L. 303. But a statute will only be given retrospective effect when it is clearly the intention of the Legislature that it should so operate. Hathaway v. Merchants' Loan & Trust Co., 218 Ill. 580, 75 N. E. 1060,4 Ann. Cas. 164. When the law only affects the remedy or procedure, the rule in this state is that all rights of action will be enforceable under the new procedure, without regard to whether they accrued before or after such change in the law and without regard to whether the suit had been instituted or not, unless there is a saving clause as to existing litigation. Chicago & Western Indiana R. Co. v. Guthrie, 192 Ill. 579, 61 N. E. 658, and authorities there cited. The Legislature, however, cannot pass a restrospective or an ex post facto law impairing the obligation of a contract, nor can it deprive a citizen of any vested right, by a mere legislative act, Dobbins v. First Nat. Bank, 112 Ill. 553.

‘This is a principle of general jurisprudence, but a right to be within its protection must be a vested right. It must be something more than a mere expectation, based upon an anticipated continuance of the existing law. It must have become a title, legal or equitable, to the present or future enjoyment of property or to the present or future enjoyment of the demand, or a legal exemption from a demand made by another. If, before rights become vested in particular individuals, the convenience of the state induces amendment or repeal of the laws, these individuals have no cause to complain.’ 1 Lewis' Sutherland on Stat. Const. (2d Ed.) § 284.

See, also, 6 R. C. L. 308, 309.

Counsel for appellants insist that their rights, after the filing of the petition under the old law, became fixed and vested in them as the law then existed, as it made it mandatory upon the commissioners to grant said petition, and that therefore, under the decisions of this court heretofore cited, in construing section 74 of the act of 1913 these petitioners were entitled to the strip of land of the old roadway where it was vacated, opposite the property owned by the respective landowners. If the doctrine laid down in Cooley's Constitutional Limitations is good law, that the bringingof a suit vests in the party no right to a particular decision and that the case must be determined on the law as it stood when the judgment was rendered and not when the suit was brought, then this argument of counsel is without merit and the right was not vested by the filing of the petition for mandamus. Vance v. Rankin, 194 Ill. 625, 62 N. E. 807,88 Am. St. Rep. 173, was a petition for a writ of mandamus filed in the circuit court of McLean county to compel certain municipal authorities to pass an ordinance disconnecting the territory mentioned in the petition from such municipality under the provisions of the law in force at the time the petition was filed, as this court had held theretofore in Young v. Carey, 184 Ill. 613, 56 N. E. 960, that when such petition was filed it was mandatory and not discretionary with the municipal authorities to grant it. Thereafter, and while the petition for...