Conover v. Gatton , 251 Ill. 587 ( 1911 )

Mr. Justice Dunn

delivered the opinion of the court:

A petition was filed with the commissioners of highways of road district No. 6, in Cass county, for the vacation of certain parts of streets in Beer’s Cheston Hill addition to the city of Virginia, located outside the corporate limits of the city but within the boundaries of the road district. A remonstrance was filed, and after a hearing the prayer of the petition was, in part, granted. The defendants in error hei;e appealed to the circuit court pursuant to the provisions of section 106 of the Road and Bridge act in counties not under township organization, (Hurd’s Stat. 1909, p. 1953,) setting forth in their petition as the grounds of their appeal substantially that the vacation of the streets is in the interest of one individual and against the interest of the public, that it injures the defendants in error and all of the freeholders residing in the district within three miles of the streets vacated, without benefit to any of them, and that it is against the interest and protest of the majority of the freeholders residing upon and near such streets. The plaintiff in error made a motion to dismiss the appeal and the court overruled it. A trial by a jury was had, the isssues were found in favor of the defendants in error, and a judgment was rendered that the action of the commissioners be not sustained. A writ of error has been sued out of this court, and the action of the circuit court in overruling the motion to dismiss the appeal is assigned as error.

The only question we deem it necessary to consider is the jurisdiction of the court, for if the court had no jurisdiction of the subject matter it should have dismissed the appeal, whether any motion was made for that purpose or not. Jurisdiction of the subject matter cannot be acquired by consent or by failure to object. The constitution provides that “the powers of the government of this State are divided into three distinct departments, — the legislative, executive and judicial; and no person or collection of persons, being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted.” This classification of the .powers of government is incapable of sharp definition, because the duties required of each department will by their nature sometimes encroach upon the field of another. Cooley, in his work on Constitutional Limitations, (7th ed. 132,) says, in considering judicial power, that to adjudicate upon and protect the rights and interests of individual citizens, and to that end to construe and apply the law, is the peculiar province of the judicial department. This power, it is said in Owners of Lands v. People, 113 Ill. 296, “has never been held to. apply to those cases where judgment is exercised as incident to a ministerial power.” Executive officers are frequently under the necessity of determining facts from evidence or their own knowledge and of deciding and acting in accordance with such finding. The acts of clerks, sheriffs and constables in taking and approving bonds, of assessors and boards of review in valuing property for taxation, of city councils in granting or revoking licenses to keep dram-shops or to conduct business of various kinds, of superintendents of schools in granting and revoking teachers’ certificates, of the State Board of Health in ascertaining and determining qualifications of physicians to practice medicine and in granting and revoking permits for that purpose, of boards of supervisors in removing county officers, are all based upon the judgment of the respective officers, require the exercise of discretion and are in their nature judicial. The power exercised is not, however, that belonging to the judicial department of the government, but is incidental only to the executive or administrative powers conferred by law upon such officers. The action sought by the petition to the commissioners of highways and by the appeal to the circuit court was not judicial. The laying out and opening of roads is not an act of judicial power. (Nealy v. Brown, 1 Gilm. 10.) No legal rights were submitted to or adjudicated by the commissioners and no law was construed or applied by them, and without these things judicial power is not exercised. Owners of Lands v. People, supra.

Cases have been called to our attention in which appeals have been authorized by statute from various non-judicial bodies to the courts and in which the jurisdiction of the courts to entertain such so-called appeals has been sustained. They are: County of Peoria v. Harvey, 18 Ill. 364; Joliet and Chicago Railroad Co. v. Barrows, 24 id. 562; Rowe v. Bowen, 28 id. 116; Bureau County v. Chicago, Burlington and Quincy Railroad Co. 44 id. 229. Each of those cases involved a state of facts of.such a character as the circuit court had original jurisdiction of. The first involved the assessment of damages by commissioners appointed to lay out a State road; the second, the assessment of damages for the right of way of a railroad; the third, the trial of the right of property levied upon by the sheriff and claimed by one not a party to the writ; the fourth, the assessment of the property of a railroad company in violation of the constitutional rule as to uniformity. They all involved property rights which might have been vindicated by the usual forms of proceeding, condemnation, trespass, replevin, trover, injunction. The statutes provided that instead of or in addition to these forms of proceeding the court might acquire jurisdiction by way of appeal. As shown in the case of Maxwell v. People, 189 Ill. 546, the proceeding is not an appeal in a legal sense, but only a method of bringing before the court for judicial determination a controversy of a character of which the court had original jurisdiction. This was the view expressed by the court in City of Aurora v. Schoeberlein, 230 Ill. 496, where it was said (p. 503) : “If a controversy belongs to a class of cases of which a court has original jurisdiction and it is brought before the court in the method prescribed by the legislature, the court may take jurisdiction by virtue of its general powers, but so far as the remedy is judicial it begins with the presentation of the case to the court. The cases in which appeals from non-judicial bodies to courts have been recognized have involved individual or property rights of which the court had jurisdiction under some other form of procedure, and belonged to classes of cases in which the court, acting judicially, could afford a remedy.”

The power of the court, by certiorari, to bring before it the proceedings of the commissioners does not affect the question. The writ of certiorari runs against inferior tribunals, not for the purpose of reviewing their proceedings, but only of determining whether they have acquired and have not exceeded their jurisdiction. City of Aurora v. Schoeberlein, supra.

The circuit court acquired no jurisdiction by virtue of the appeal. Its judgment is therefore reversed and the cause is remanded, with directions to dismiss the appeal.

Reversed and remanded, with directions.