People ex rel. Kocourek v. City of Chicago

• Citation: 62 N.E. 179,193 Ill. 507
• Parties: PEOPLE ex rel. KOCOUREK v. CITY OF CHICAGO et al.
• Decision Date: 18 December 1901
• Court: Illinois Supreme Court

193 Ill. 507

62 N.E. 179

PEOPLE ex rel. KOCOUREK

v.CITY OF CHICAGO et al.

Supreme Court of Illinois.

Dec. 18, 1901.

Mandamus by the people, on the relation of Albert Kocourek, against the city of Chicago and Schlesinger & Mayer. Petition dismissed.

Magruder, J., dissenting.

Moran, Mayer & Meyer, for respondents Schlesinger & Mayer.

Charles M. Walker, for respondent city.

CARTER, J.

At a former term, on application by the relator, leave was given to file a petition in this court for a writ of mandamus against the city of Chicago, to compel it, by its proper officers, to remove, or cause to be removed, a certain bridge or superstructure over and across a certain alley, alleged to be a public alley, in said city, constructed, with the permission of the corporate authorities of said city, across said alley by Schlesinger & Mayer, an alleged copartnership, connecting the third stories of their buildings; they having buildings on each side of the alley, which they used in their business of conducting a large mercantile establishment. Said Schlesinger & Mayer, upon leave given, became parties defendant, and answered the petition, alleging that they are a corporation by that name, and stating reasons why the writ should not issue. The city of Chicago also answered, and the relator demurred to said answers. Afterward the defendants moved the court to dismiss the petition on the ground that the original jurisdiction of this court does not extend to that class of cases in mandamus which affect only the rights and interests of the local public or of individuals, and not those of the people of the whole state, or of the state in its corporate or sovereign capacity.

While this court has exercised original jurisdiction in cases of mandamus ever since the foundation of the state government, under the constitutions of 1818, 1848, and 1870, it does not appear from any reported case that the question raised by this motion had ever been presented to this court for decision until it was raised in this case and others brought here about the same time; that is, whether its original jurisdiction extends to all cases in mandamus, and is, in respect to them, concurrent with the jurisdiction of the circuit court, or is limited to such cases as directly affect the powers, rights, or interests of the state in its sovereign character or of the people of the whole state, and also whether this court has a legal discretion to exercise its original jurisdiction, or not, in mandamus cases, or whether it is its constitutional duty to take jurisdiction of every mandamus case presented to it as a court of first resort. Section 2 of article 6 of the constitution provides that ‘the supreme court shall consist of seven judges, and shall have original jurisdiction in cases relating to the revenue, in mandamus and habeas corpus, and appellate jurisdiction in all other cases.’ So far as the provision of the constitution of 1870 confers original jurisdiction on this court in mandamus, it does not differ materially from the provisions of the constitutions of 1818 and 1848. Section 12 of article 6 of the constitution of 1870 provides that ‘the circuit courts shall have original jurisdiction of all causes in law and equity, and such appellate jurisdiction as is or may be provided by law, and shall hold two or more terms each year in every county.’ It thus appears that the circuit courts of the state have original jurisdiction in mandamus cases, such cases being included in the term ‘all cases in law’; and it follows that, whatever may be the extent of the original jurisdiction of this court in mandamus, it is not exclusive, but is concurrent with that of the circuit courts. Hundley v. Commissioners, 67 Ill. 559. It is clear that the framers of the constitution intended that the jurisdiction of this court should be chiefly appellate, for the correction of errors in the decisions of other courts which were established or provided for, but deemed it wise to confer on the supremecourt of the state original jurisdiction in a certain class of cases, viz. those relating to the revenue, mandamus, and habeas corpus, all of which are of themselves, or in their application may become, of great public importance, by securing the collection and the protection of the public revenues, by compelling the performance of high official duties, and by protecting the liberties of the individual citizen. The high character of this original jurisdiction is denoted, not only by the fact that it is conferred by the constitution on the court of last resort in the state, but by the subjects to which it relates, and their association together in this provision of the constitution. ‘Noscitur a sociis.’

The same question now brought before us, and fully argued here for the first time, has been fully considered and decided in other states having similar constitutional provisions to our own. In the state of Wisconsin, its constitution provided, in substance, that the supreme court, except as otherwise provided by the same instrument, should have appellate jurisdiction only; that it should have a general superintending control over all inferior courts; that it should have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other original and remedial writs, and to hear and determine the same. Original jurisdiction was also conferred on the circuit courts of all matters, civil and criminal, not excepted in or prohibited by the constitution; and power was also given to the circuit courts to issue writs of habeas corpus, mandamus, injunction, quo warranto, and certiorari. And in Attorney General v. Chicago & N. W. Ry. Co., 35 Wis. 425, the attorney general, on information filed in the supreme court, moved the court for a temporary injunction to restrain the railway company from demanding and receiving greater passenger and freight rates than those allowed by act of the legislature. The court, referring to the provision of the constitution conferring original jurisdiction on the supreme court, held that said provision was designed to give to said court original jurisdiction of all questions affecting the sovereignty of the state, its franchises and prerogatives, and the liberties of the people; citing Attorney General v. Blossom, 1 Wis. 317. The court, speaking through Mr. Chief Justice Ryan, among other things, said: ‘The other courts may, indeed, adjudicate public as well as private questions, and the appellate and superintending jurisdiction of this court may therefore reach public as well as private interests. But the framers of the constitution, for greater security, added to these original jurisdiction over great public interests, for reasons already assigned. In a government like ours, public rights of the state and private rights of the citizens often meet, and may well be involved in a single litigation, so it may be in the exercise of the original jurisdiction of the court. But it is safe to say that the constitution is content to intrust purely private rights to the appellate and superintending jurisdiction of this court, for the better and prompter and more authoritative protection of public interests. This is its primary and controlling object and character. * * * It is the duty of this court to confine the exercise of its original jurisdiction to questions publici juris; and hereafter the court will require all classes of cases, as it has hitherto done, some in which it is sought to put its original jurisdiction in motion to proceed upon leave first obtained, upon a prima facie showing that the case is one of which it is proper for the court to take cognizance.’ Then, in speaking of the jurisdiction of the circuit courts, it was said: ‘A great jurisdiction, comprehending, as Chief Justice Snow remarked in Putnam v. Sweet, 1 Chand. 286, 2 Pin. 302, the united powers of the English courts of the king's bench, common pleas, exchequer, and chancery. The same writs are granted to those courts as to this. It is impossible for a lawyer to suppose that they are granted in the same sense, and with the same measure of jurisdiction to this court as to those courts. Such a proposition would shock the legal sense of any professional man. And the distinction is to be looked for, and is readily found, in the general constitution and functions of those courts and of this. The writs are given to the circuit courts as an appurtenance to their general original jurisdiction; to this court, for jurisdiction. Those courts take the writs with unlimited original jurisdiction of them, because they have otherwise general original jurisdiction. Other original jurisdiction is prohibited to this court, and the jurisdiction given by the writs is essentially a limited one. Those courts take the prerogative writs as a part of their general jurisdiction, with power to put them to all proper uses. This court takes the prerogative writs for prerogative jurisdiction, with power to put them only to prerogative uses proper.’ It had been said by the same court in Attorney General v. Bl ssom, 1 Wis. 324, in reference to the constitutional provision authorizing that court to issue writs of quo warranto: ‘Contingencies might arise wherein the prerogatives and franchises of the state, in its sovereign character, might require the interposition of the highest judicial tribunal to preserve them. Other departments might need its intervention to protect them from usurpation. Indeed, various emergencies may have been conceived in which this branch of the government and this arm of the judiciary alone might be adequate to preserve the balance of powers; to arrest usurped powers, franchises, and prerogatives; to quell resistance to authority; to preserve the liberty of the individual citizen, and shield the sovereignty of the state itself from violation.’ In Attorney General v. City of Eau Claire, 37 Wis. 400, on an information for injunction to enjoin city officers...