Shaw v. Hill
| Decision Date | 31 January 1873 |
| Citation | 1873 WL 8235,67 Ill. 455 |
| Parties | UPTON SHAW et al.v.ALLEN J. HILL et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Cass county; the Hon. CHARLES TURNER, Judge, presiding.
Mr. G. POLLARD, Mr. I. J. KETCHAM, and Mr. T. H. CARTER, for the plaintiffs in error.
Messrs. WHITNEY & FOSTER, and Messrs. ROBERTS & GREEN, for the defendants in error.
This bill was filed, charging that the officers of the county of Cass threatened to remove their offices and the records of the county from the present county seat to Virginia; that the act of the county court in ordering an election was unauthorized and void; that a majority of the voters, qualified to vote, did not vote in favor of removal, and prayed that the defendants be restrained from their intended action.
The motion to dissolve the injunction issued when the bill was filed, and which motion was sustained by the court, was such a substantial and final disposition of the bill as to entitle the complainants to a writ of error. The motion had the same effect as a demurrer to the bill, for want of equity, and constituted an admission of the material allegations. The decree, therefore, dissolving the injunction, was a complete denial of any equity in the bill, and must be regarded as final. Titus v. Mabee, 25 Ill. 257. The effect of the decree, then, was to deny any relief upon either ground alleged in the bill--that the order of the county court, as to the election, was void, or that a majority of votes was against removal.
The first question presented is a question of law. The order for the election was made by the county court, composed of the county judge and two persons associated with him. They are, by the law of February 12, 1849, constituted a county court for the transaction of “ county business,” and are endowed with all the power, jurisdiction and authority, before that time conferred by law on the county commissioners' court, under the constitution of 1818, and the laws enacted under it. Sess. Laws 1849, sec. 15, p. 65.
The act of 1872, “to provide for the removal of county seats,” (Sess. Laws of 1871-72, p. 309), evidently refers to the above named court when it authorizes the “county court” to order an election in regard to the removal of a county seat. The “board of county commissioners,” which, by section 6 of article 10 of the constitution of 1870, will succeed the present county court in the transaction of county business in counties not under township organization, has not yet been elected, and will not be until in November, 1873. The fourth section of the schedule of the constitution of 1870, continued in existence the county courts for the transaction of county business in counties which had not adopted township organization, until the election of the “board of county commissioners,” and authorized such courts to “exercise their present jurisdiction.” The words “present jurisdiction” can not be construed with reference to laws in existence at the time the constitution went into operation. They are not a prohibition upon the legislature in the enactment of any additional laws regulating such courts, but are to be regarded as a mere limitation upon the power to change the jurisdiction from “county business” to civil or criminal causes.
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