People ex rel. Goldman v. Harrison
79 N.E. 164
Ill.
1906
Check Treatment
Mr. Justice Vickers

delivered the opinion of the court:

Under our statutes and numerous decisions of this court the finding of facts by the Appellate Court is final and conclusive ‍​​‌​‌‌‌​​‌​‌‌​‌​‌​​​‌​​​‌​​‌​​​‌​‌‌​‌‌‌​​​​‌‌‌​‌‍as to all matters of fact in controversy in this cause. (Hurd’s Stat. 1905, chap. 100, sec. 88; Williams v. Forbes, 114 Ill. 167; Siddаll v. Jansen, 143 id. 537; Northwestern Brewing Co. v. Manion, 145 id. 182; Lenz v. Harrison, 148 id. 598; Aachen and Munich Fire Ins. Co. v. Crawford, 199 id. 367.) The only question that can be determined by this court in a case where the reversal in the Appellate Court is the result оf a finding of the facts wholly or in part different ‍​​‌​‌‌‌​​‌​‌‌​‌​‌​​​‌​​​‌​​‌​​​‌​‌‌​‌‌‌​​​​‌‌‌​‌‍from the trial court, is whether the Appellate Court has еrred in applying the law to the facts so found. (See cases above cited.) If, however, the Aрpellate Court had no jurisdiction of the subject matter of this cause, then its judgment, and all other proceedings anterior and subsequent' thereto, are coram non judice and of no effect. (7 Am. & Eng. Ency. of Law,—2d ed.—595.)

Where the Appellate Court assumes jurisdiction of a cause in which appellate jurisdiction is еxclusively in this court, and adjudicates therein, and an appeal from such void judgment is prosecuted ‍​​‌​‌‌‌​​‌​‌‌​‌​‌​​​‌​​​‌​​‌​​​‌​‌‌​‌‌‌​​​​‌‌‌​‌‍to this court, it is our duty to reverse the erroneous decision and remand the cause to the Apрellate Court with directions to that court to dismiss the appeal. (Chaplin v. Comrs. of Highways, 126 Ill. 264; Perry v. Bozarth, 198 id. 328.) Thе Appellate Court has no jurisdiction in cases involving a franchise, freehold or ‍​​‌​‌‌‌​​‌​‌‌​‌​‌​​​‌​​​‌​​‌​​​‌​‌‌​‌‌‌​​​​‌‌‌​‌‍the validity of a statute, and such jurisdiction cannot be conferred by consent of parties. (Fleischman v. Walker, 91 Ill. 318; Richаrds v. Lake Shore and Michigan Southern Railway Co. 124 id. 516; Perry v. Bozarth, supra.) But a city ‍​​‌​‌‌‌​​‌​‌‌​‌​‌​​​‌​​​‌​​‌​​​‌​‌‌​‌‌‌​​​​‌‌‌​‌‍ordinance is not a statute within the meaning of section 88 of the Practice act. (Wood v. City of Chicago, 205 Ill. 70.) In that case it is said: “Wе. are authorized to take jurisdiction of an appeal from the circuit court where the validity of a statute is involved; but an ordinance is not a statute, and we have no jurisdiction of this appeal under that provision.” It is true, the validity of an ordinance may depend upon the construction of the constitution or the validity of a statute, and where such question is properly presented this cоurt would take jurisdiction, primarily for the reason that the validity of a statute or the construction of the constitution was involved, and not because the validity of an ordinance was involved as an incident to the decision of the other questions. The validity of city ordinances may be attacked for a number of reasons, such as, that they were not properly published by a duly authorized municipal cоrporation; or that they are not within the inherent or delegated powers of the'municipality; or that they do not relate to a subject within the scope of the municipal government; or that they are in violation of the constitution or laws of the United States or the State or contrary to thе charter or general principles of the common law; or because they are unreasonable or are not properly passed by the legislative branch of the municipal government; or because of uncertainty or other want of proper form; or because not enacted in good faith and for a legitimate purpose of the local government. (McQuillin on Mun. Ordinаnces, sec. 14, and cases there cited.) If the manner in which the validity of the ordinance is called in question necessarily involves the validity of a statute or a construction of the constitution, and thаt question is raised and decided, then the appeal from such decision would lie direct to this cоurt. On the other hand, if the ground upon which the ordinance is attacked is such that neither the validity of a statute nor the construction of the constitution is involved the appeal should be to the Appеllate Court. In the case at bar the validity of the ordinance was not attacked upon any grоund in the trial court. It is true, the replication of appellant charged that the ordinance wаs unconstitutional and void; but no propositions of law requiring the court below to pass on that or any other question were presented to the trial court and no holding was made on the question now urged in this court. If appellant desired to raise the question of the validity of the ordinance on the ground that it was in violation either of a statute or the constitution, he should have embodied that question in a written proposition to be held as the law and preserved an exception to the ruling. Even а constitutional provision designed to protect the civil rights of a citizen may be waived, and will be sо waived unless the question is raised and the right insisted upon in the trial court. It cannot be ■ raised for the first time in this сourt. (Chiniquy v. People, 78 Ill. 570; Farwell v. Shove, 105 id. 61; People v. McCoy, 132 id. 138; Board of Supervisors v. Highway Commissioners, 164 id. 574; Chicago, Burlington and Quincy Railroad Co. v. City of Ottawa, 165 id. 207; Mechanics’ Savings Ass. v. People, 184 id. 1295 Cummings v. People, 211 id. 392.) It is too lаte to raise the question of the validity of the ordinance, after the appellant has treated it as valid, until the case reaches this court.

There being no question of law presented for the decision of this court, the judgment of the Appellate Court will be affirmed.

^ Judgment affirmed.