The County of Menard v. Kincaid
| Decision Date | 31 January 1874 |
| Parties | THE COUNTY OF MENARDv.J. K. KINCAID et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Menard county; the Hon. LYMAN LACEY, Judge, presiding.
Mr. T. W. MCNEELY, for the appellant.
Mr. EDWARD LANNING, for the appellees.
This was an appeal from a judgment of the circuit court of Menard county, reversing an order of the county court of said county, in relation to the laying out and opening of a public road over the land of the appellees.
The proceeding for laying out the road in Menard county, a county not under township organization, was commenced in February, 1873, under the approved April 10, 1872, (Laws of 1871-72, p. 675,) which vested in the commissioners of highways the superintendence of highways, and the duty of laying out and establishing roads. Appellees' damages, for laying out the road over their lands, were assessed, under the provisions of that act, before a justice of the peace, March 19, 1873, from the judgment on which assessment against the commissioners of highways appellees appealed to the circuit court of Menard county.
On the 9th of April, 1873, the commissioners of highways laid out the road, and made their order declaring the road laid out a public highway, and on the 11th of April this order, with the report of the surveyor, was filed in the office of the county clerk. On the 18th of April, the said act was repealed, without any saving clause in the repealing act, by the approved April 18, 1873, which went into immediate force, and which vests the county court of counties not under township organization with general superintendence over the public roads within their respective counties, and authority to cause new roads to be located and made, and to alter or vacate public roads--the act not recognizing the existence of any such officers as commissioners of highways. At the July term of the Menard circuit court, on the 21st of July, 1873, on motion of the commissioners of highways, the appeal from the assessment of damages was dismissed, to which the appellants there excepted.
On the 3d day of September, 1873, the county court of Menard county, on petition setting forth the proceedings which had been had, ordered that the appellees be paid their damages which had been assessed, and that the road be opened. This is the order which the circuit court of Menard county reversed on appeal, which judgment of reversal is the one here appealed from by Menard county. The question presented by the record is, as to the effect of the repealing act of April 18, 1873, upon the proceedings which had previously been had under the act repealed, of April 10, 1872.
It is claimed by the appellees, that the dismissal, on the 21st of July, 1873, of the appeal from the assessment of appellees' damages before the justice of the peace, amounted to an affirmance of the justice's judgment.
Ordinarily, the dismissal of an appeal has such effect. McConnel v. Swailes, 2 Scam. 571; Sutherland v. Phelps, 22 Ill. 91. But we think the circumstances of the dismissal, and the fact that the whole law under which the case was pending at the time of dismissal had been repealed, takes this case out of the general rule.
In Key v. Goodwin, 4 Moore & Payne, 341-351, Lord Ch. J. TINDAL thus laid down the rule applicable to such a case: “I take the effect of a repealing statute to be, to obliterate it (the statute repealed) as completely from the records of the parliament as if it had never passed, and that it must be considered as a law that never existed, except for the purpose of those actions or suits which were commenced, prosecuted, and concluded whilst it was an existing law.” And see Eaton v. Graham, 11 Ill. 619; Van Inwagen v. The City of Chicago, 61 Id. 31; Wilson et al. v. Ohio and Mississippi Railroad Co. 64 Ill. 542; Butler v. Palmer, 1 Hill, 324.
In the present case, the appeal from the judgment on the...
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