Seibert v. Swayne , 1901 Ill. App. LEXIS 137 ( 1901 )

Mr. Justice Wright

delivered the opinion of the court.

This was a proceeding in mandamus by appellee against appellants, as president and members of the town council of the town of Normal, to compel them to disconnect from the corporate limits of the town a tract of land lying upon the border of such limits and owned by appellee. The petition was. answered and the court sustained a demurrer to the answer and gave judgment against appellants awarding the peremptory writ of mandamus, to reverse which this appeal is prosecuted, and various errors are assigned and argued to effect such reversal, but in the view we have of the case we will consider but a single question.

It is insisted by appellee that the judgment of the Circuit Court is supported by the statute as construed in Young v. Carey, 184 Ill. 613. We are of the opinion, however, that the statute under which this decision was given has no reference to a municipality like the town of Normal, which is incorporated by special act, February 25,1867, and by that act is given the special designation “ The Town of Normal,” with certain defined powers therein enumerated. Vol. 3, Private Laws, 1867, p. 321.

The act in relation to the disconnection of territory provides only for such disconnection from cities or villages, and neither mentions nor refers to towns organized like the town of Normal. By a reference to the act of Hay 29, 1879 (Hurd’s Stat. 1899, p. 294), it will be found that neither the title nor the body of the act, refers to towns, while in the preceding act, April 10, 1872, in relation to-proceedings in the Circuit Court for the same purpose, both the title and the body of the act includes towns as well as cities and villages. We can not say that the omission of towns in the later act was accidental and that it ought to be construed in pari materia with the other act, and thus it was the legislative intent that both acts should embrace the same objects. It is a familiar principle in proceedings like this that the clear right to it must be shown before the peremptory writ of mandamus will be awarded. We are of the opinion no such right has been shown. If the legislature intended to include municipalities like this one, within the provisions of the act under which this proceeding can alone be justified, it doubtless would have said so in clear and unambiguous language, and not left it to be determined by doubtful construction.

It is further insisted by counsel for appellant in his brief that the matter of disconnecting territory is within the discretion of appellants, and the act of May 10, 1901, is cited in support of this position. In Young v. Carey, supra, the "act of 1879 was given the contrary construction. Whatever construction may hereafter be given to the act of May 10, 1901, we can not, of course, anticipate. It could, upon ■principle, have no effect upon the judgment that was rendered in this case, for the act was not in force at that time. This court is permitted only to review the final judgments of the trial courts and the rulings thereof, leading up to the final judgments, and can determine only whether there was error at the time of the rendition of such judgments. Whatever rights the appellants may have obtained under the latter statute different from the one repealed, must in some appropriate manner be first raised in the trial court, before this court, according to the well established practice, can review the same and express its judgment concerning such matter. While the case may be still pending and undetermined in the trial court, we have no doubt the questions under the new statute may be raised; but not in this court for the first time.

For the error indicated, the judgment of the Circuit Court will be reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed. Reversed and remanded.