Vance v. Rankin

• Decision Date: 21 February 1902
• Citation: Vance v. Rankin, 194 Ill. 625, 62 N. E. 807 (Ill. 1902)
• Parties: VANCE et al. v. RANKIN et al.
• Court: Illinois Supreme Court

194 Ill. 625

62 N.E. 807

VANCE et al.

v.RANKIN et al.

Supreme Court of Illinois.

Feb. 21, 1902.

Appeal from appellate court, Third district.

Mandamus by Laura Rankin and others against John W. Vance and others as president and trustees of the village of Danvers to compel the passage of an ordinance disconnecting certain territory from the village. From a decision of the appellate court (95 Ill. App. 562) affirming a judgment in favor of the relator, the defendants appeal. Reversed.Welty & Sterling and Barry, Morrissey & Fifer, for appellants.

Frank Y. Hamilton, for appellees.

HAND, J.

This is a petition for a writ of mandamus, filed by the appellees in the circuit court of McLean county against the appellants, as president and trustees of the village of Danvers, to compel them, as such officers, to pass an ordinance disconnecting the territory mentioned in the petition from said village, under the provisions of an act entitled ‘An act in relation to the disconnection of territory from cities and villages,’ in force May 29, 1879. Laws 1879, p. 77. A demurrer to the petition having been overruled, the appellants filed an answer thereto, and, a demurrer having been sustained to the answer, the appellants elected to stand by their answer, and judgment was entered awarding a peremptory writ of mandamus against them requiring them to pass an ordinance disconnecting the territory as prayed for in the petition, from which judgment an appeal was perfected to the appellate court for the Third district, where the judgment was affirmed, and a further appeal has been taken to this court.

On the 10th day of May, 1901, and while the appeal was pending in the appellate court, the legislature passed an act with an emergency clause, entitled ‘An act in relation to the disconnection of territory from cities and villages, and to repeal an act therein named’ (Laws 1901, p. 96), whereby the act of May 29, 1879, which had been held by this court in Young v. Carey, 184 Ill. 613, 56 N. E. 960, to be mandatory, was repealed, and it was made discretionary with the trustees whether they would disconnect territory upon application of the owners thereof (People v. Binns, 192 Ill. 68, 61 N. E. 376), and which act provided that it ‘shall apply to and affect all cases where property has not been disconnected by such city council or trustees of such village, whether application has been made for disconnection or not.’ The act of May 10, 1901, being a public act, this court will take judicial notice thereof, without formal supplemental plea. Wikel v. Board, 120 N. C. 451, 27 S. E. 117. ‘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.’ South Carolina v. Gaillard, 101 U. S. 433, 25 L. Ed. 937. ‘If a case is appealed, and pending the appeal the law is changed, the appellate court must dispose of the case under the law in force when their decision is rendered.’ Cooley, Const. Lim. (2d Ed.) 381, and note. The effect of the repeal of a statute is to obliterate the statute repealed as completely as if it had never been passed, and it must be considered as a law that never existed, except for the purposes of those actions or suits which were commenced, prosecuted, and concluded while it was an existing law. Ex parte McCardle, 7 Wall. 514, 19 L. Ed. 264; Key v. Goodwin, 4 Moore & P. 341; People v. Hays, 4 Cal. 165;Musgrove v. Railroad Co., 50 Mass. 677; Town of Belvidere v. Warren R. Co., 34 N. J. Law, 193. Pending judicial proceedings based upon a statute cannot proceed after its repeal. Gilleland v. Schuyler, 9 Kan. 569;Wade v. Industrial School, 43 Md. 178;McMinn v. Bliss, 31 Cal. 122;State v. Daley, 29 Conn. 272. This rule holds true until the proceedings have reached a final judgment in the court of last resort; for that court, when it comes to pronounce its decision, conforms it to the law then existing, and may therefore reverse a judgment which was correct when pronounced in the subordinate tribunal from whence the appeal was taken, if it appears that pending the appeal a statute which was necessary to support the judgment of the lower court has been withdrawn by an absolute repeal. Hartung v. People, 22 N. Y. 95;Hubbard v. State, 2 Tex. App. 506;Atwell v. Grant, 11 Md. 104;U. S. v. The Peggy, 1 Cranch, 103, 2 L. Ed. 49; Mayor, etc., of Annapolis v. State, 30 Md. 112. In Musgrove v. Railroad Co., supra, a judgment erroneous when pronounced was affirmed because the subsequent repeal of the statute freed it from error. In Keller v. State, 12 Md. 323, 71 Am. Dec. 596, the court, having affirmed a judgment in ignorance of the repeal of a statute pending the appeal, afterwards, at the same term, on its attention being called to the repeal, struck out the order of affirmance, and in its place entered a judgment of reversal. In Wikel v. Board, supra, which was a petition for mandamus to compel the county commissioners to build a bridge and levy a tax for that purpose, as required by the act of 1895, which act, pending an appeal from a judgment granting a peremptory writ, was repealed, it was held that the repeal of such act destroyed the subject-matter of the action, and that the suit should abate.

The repeal of a statute conferring jurisdiction takes away all right to proceed thereunder unless it is expressly saved (Board of Trustees of Illinois & M. Canal v. City of Chicago, 14 Ill. 334); and it carries with it all prosecutions pending thereunder (Wilson v. Railway Co., 64 Ill. 542, 16 Am. Rep. 565); and, except for the purposes of such suits as are begun, prosecuted, and concluded while...