Loomis v. Hodson

79 N.E. 590, 224 Ill. 147

• Court: Illinois Supreme Court
• Decided: December 22, 1906
• Status: Published

Opinion

Mr. Justice Carter

delivered the opinion of the court:

Section 7 of the statute on the removal of county seats, (Hurd’s Stat. 1905, p. 585,) provides, among other things: “All cases of contest arising upon said petitions or affidavit shall have precedence over all other cases at the September term of said court, and shall be heard and determined at said term, and the decision of the county court shall be final.” While it is admitted that this language excludes a writ of error as well as an appeal, it is urged that a writ of error is a writ of right, and that the legislature has no power to deprive a party of that right. It has been held by this court in Haines v. People, 97 Ill. 161, that a writ of error lies either from this court or the Appellate Court to all inferior courts of record, for the purpose of reviewing their final determinations, in all cases involving property rights or personal liberty, where no appeal is given, and that this right exists, independently of any statutory or constitutional provisions, by force of the common law, in all cases in which the jurisdiction of such inferior court is exercised according to the course of the common law.

In Sweeney v. Chicago Telephone Co. 212 Ill. 475, we held that a writ of error was not a writ of right in a special statutory proceeding, but it is insisted that this cannot be a special statutory proceeding, as section 4 of article 10 of the constitution of 1870 makes certain provisions as to the removal of county seats. It must be admitted that if the legislature had not passed a general law covering the question of the removal of county seats, even with this constitutional provision it would be impossible, by any proceeding known to common law, to effect such removal. In Kinsloe v. Pogue, 213 Ill. 302, a proceeding involving the removal of a county seat under the statute here in question, this court stated (p. 305) : “The statute authorizing the county court to call a county seat removal election provides that the decision of the county court in calling said election shall be final, which is an equivalent to failing to provide for the review of the action of the court in that regard, by appeal or otherwise.” The legislature has committed to the county court the decision of questions arising preliminary to the question for removal of a county seat and made its decision final. We do not think this is contrary to any provision of the constitution or to the decisions of this court. The question at issue does not involve “property rights or personal liberty,” and we have repeatedly held that where the legislature had committed the final decision of questions of a somewhat similar nature to the one here involved to public officials or trial courts, this court did not have the right to review such decision. People v. Rose, 211 Ill. 259; Moore v. Mayfield, 47 id. 167; City of Jacksonville v. Hamill, 178 id. 235; Birket v. City of Peoria, 185 id. 369; People v. Cohen, 219 id. 200.

Whatever apparent conflict is found in the various decisions of this court bearing on this subject has doubtless arisen because the facts in certain of these cases did not raise the precise question presented in this case, and it was not found necessary to distinguish between the right to a writ of error in cases prosecuted according to the course of the common law and in those cases where a writ of error was invoked in a purely statutory proceeding, when neither property rights nor personal liberty was involved.

The legislature has committed to the county court the final decision of the question at issue in this case. The judg-. ment of the Appellate Court will accordingly be affirmed.

Judgment affirmed.

Farmer and Vickers, JJ., took no part in the decision of this case.