| Ill. | Apr 15, 1857
The eight foregoing defendants were owners of land on the route of a state road, each of whom appealed from the award of damages by the commissioners.
The act of 11th February, 1853 (Acts 1853, p. 194), provided for the location and establishment of a state road from Peoria to Pock Island. When reviewed, located and reported by the commissioners, the road was established by the act, and the damages assessed became payable absolutely. Fío discretion was left to be exercised by the county court or board of supervisors.
This proceeding has been resisted in the court below, and here, upon the supposition that the county authorities possessed the powers and discretion conferred by the 38th section of the law in relation to roads (Pev. Stat. p. 488, Sec. 38), and that the proceedings to establish a public road must be under that act. But we regard the proceeding as being wholly under the act of 1853, and independent of the judgment of the county court. Their jurisdiction and authority is that of passive obedience in carrying the act into effect by paying the damages which may be assessed, and causing the road to be opened by the supervisors, as established by the viewers under the act.
There was no necessity, therefore, on the part of the landholders, to show an order of the county court establishing the road, for that was done by the act. Fior could the court defeat it, by a refusal to pay the damages; they became due and payable as matter of debt, when duly assessed, and the county court could not lawfully withhold them. People ex rel. Higgins v. The City of Chicago, 18 Ill. R. 276; The County of Sangamon v. Brown et al., 13 Ill. R. 207, was a proceeding under the 38th section of the general law, giving the power to the county court to locate and establish roads, and, therefore, unlike this, the act established this road. The commissioners were empowered, both to locate it, and assess the damages done to owners of land over which they located it. This they did and reported to the county courts. (See Acts, 1853, p. 195, Secs. 2, 3, 4, 5.) Section six required counties to pay the damages so assessed, and section seven required the road, so located, to be opened and worked as a public highway. Section six also allowed appeals to be taken as then provided by law, for laying out roads and appraising damages.
This must be done under the provisions of the 38th section of Rev. Stat., title Roads, p. 488, for the act in relation to the “Eight of Way,” Cap. 92, so far as public highways are concerned, is repealed in the matters of assessing damages, as held in the County of Sangamon v. Brown et al.
The 38th section has prescribed no particular mode or time of appealing. The 4th section of the act in relation to the “Right of Way” (Eev. Stat. p. 478), provided for taking appeals in such cases, in the.same manner, etc., as from justices of the peace. But as that act is, as to public highways, repealed by the act iu relation to “ roads,” in the following chapter, which makes other and specific provision for public highways, and, in general terms, simply gives an appeal from the decisions of the commissioner’s court, without prescribing in what manner it shall he taken. This is the state of the law in relation to taking appeals in cases of laying out roads and appraising damages.
The act of 1853, under which these proceedings are had, simply provides for an appeal, as now provided by law, in such cases.
How, then, should appeals he taken ? Doubtless an appeal taken in the mode prescribed for taking appeals from justices of the peace would be a valid mode of exercising that right. But we cannot say that it is the indispensable mode, under section 38, of revised statutes, and the 6th section of the act of 1853.
There are many modes in which the right of appeal may he exercised; and, among them, we cannot deny the circuit court jurisdiction of the case, in the mode adopted here, of filing certified copies of the proceedings of the commissioners to view, locate and assess damages. The giving of bond and sureties is not essential, in all cases, as part of an appeal, but only in those cases in which it is required by statute, or by the order of the court, allowing the appeal in cases where the court possesses power to prescribe such terms. Hone have been prescribed by statute, or order of court, in this case, and we cannot, therefore, deny or oust the jurisdiction.
As the county has no power, discretion or judgment to refuse payment of the damages, or to open the road as located, the defendant is absolutely entitled to the amount, and may have judgment therefor.
The eight foregoing cases were all under the same proceeding, being different owners on the route of the same highway. The only difference is, that in the first case against John Harvey, no damages were allowed him by the commissioners. Erom this refusal to allow him damages, his right of appeal was as complete as each of the others to whom different sums had been awarded by the commissioners.
Judgment will he affirmed in such case for the amount recovered in the circuit court.
Judgment affirmed.