Moore v. Mayfield

47 Ill. 167

• Court: Illinois Supreme Court
• Decided: January 15, 1868
• Status: Published

Opinion

Per Curiam:

The cross-motion of the defendant, to dismiss this writ of error, on the ground that the decision of the circuit court was final, must be allowed. The language of the 49th section of the election law (Rev. Stat. 1845, 224), which controls this question, is explicit, that on an appeal to the circuit court from the decision of the justices, in the matter of a contested election such as this, the decision of that court “ shall be final.” A similar provision in the 38th section of chapter 93 of the Revised Statutes, entitled “Roads,” was before this court for consideration, in the case of Coon v. Mason County, 22 Ill. 666. The county court of Mason county had ordered a road to be opened, and refused to allow the owner of a tract of land through which the road passed, any damages therefor. From that decision the owner of the land appealed to the circuit court, and the order of the county court being there affirmed, he sued out a writ of error to bring the decision of the circuit court in review before this court. Upon a motion to dismiss the writ of error, it was held that the provision of the road law above cited, which declares that the decision of the circuit court, upon an appeal of that character, should “ be a final decision,” prohibited the prosecution of a writ of error, as well as an appeal. We regard that case as decisive of this, in that regard.

It is contended, however, that the provision of the statute in this case is in conflict with the 5th section of the 5th article of the constitution, which declares that “the supreme court may have original jurisdiction'in cases relative to the revenue, in cases of mandamus, habeas corpus, and in such cases of impeachment as may be, by law, directed to be tried before it, and shall have appellate jurisdiction m all other cases.”

Whether this clause of the constitution was designed to give to this court appellate jurisdiction in all cases except those specified, in which it is given original jurisdiction, not subject to any legislative restrictions or limitations in that regard, or merelyto define the general character of its jurisdiction as being appellate only, except in the cases specified, it is not necessary here to consider, as the proceeding to contest an election under our statute is not a “ case,” within the meaning of that section of the constitution. This is merely a statutory proceeding for re-canvassing the votes cast at an election, in which the illegal votes may be rejected and those which are legal may be counted, and the result ascertained, and the finding of that result is not a judgment in the sense in which that term is used in the law giving the right to prosecute a writ of error, nor is the proceeding by means of which that result is reached, a “case,” within the meaning of the constitution.

That term would refer more properly to an action at law or a suit in chancery, but this proceeding is neither one nor the other.

We think the legislature have the power to declare that the decision of the circuit court in a matter of this character shall be final," and that in the act under consideration they have done so. The writ of error will be dismissed.

Writ of Error dismissed.