240 Ill. 399 | Ill. | 1909
delivered the opinion of the court:
The defendants in error contend that the relators can not prosecute this certiorari proceeding. The relators were not in any sense parties to the proceeding before the commissioners to vacate the highway. They do not own any land over which the vacated highway passed and they do not own any land which abuts upon that highway. They do not have any direct or immediate interest in the question of the vacation of this highway. They have only such interest as is possessed by all other members of the public residing in the vicinity of the road in question and desiring to travel over that particular piece of the highway. Under these circumstances they could not, in their personal or individual capacities, be permitted to maintain this suit. The case of People v. County of Vermilion, 210 Ill. 209, is decisive so far as that question is concerned, but this suit was not so instituted. It was brought in the name of the People of the State of Illinois, upon the relation of four persons who were residents and tax-payers of the town of Johnson, residing in the vicinity of the highway in question, to whom the road was an important and convenient one for their own travel. The application for the writ was made and the cause was carried forward by the State’s attorney of Christian county, acting for and on behalf of the People of the State. While in the case above referred to, the title indicates that the action was in the name of the People, at the relation of a private individual, it does not appear that the matter was instituted and controlled by the State’s attorney, and the cause evidently was as it would have been had the suit been instituted by the relator in his own name, without using that of the People of the State. It was plainly so regarded by this court, as no reference is made in the case to the assertion of any right by the public. Where the writ is asked in a case which does not involve a private right and where the injury is one affecting the public, it must be sought and prosecuted by the State’s attorney or the Attorney General. (Board of Supervisors v. Magoon, 109 Ill. 142.) The public officer so seeking and prosecuting the writ may himself be relator, or some member of that portion of the public which has a public interest therein may act as relator. If the relator is a private person, it is necessary only that he be one of those members of the public who are injuriously affected by the wrong complained of. He must not be one who intermeddles in a matter in which he has no interest of any kind whatever. 4 Ency. of Pl. & Pr. 165.
Proceedings in reference to the laying out of public highways are of that class in which the record may be lawfully reviewed in certiorari at the suit of the public. Readington Township v. Dilley, 24 N. J. L. 209; 4 Ency. of Pl. & Pr. 163.
The present proceeding is one which was rightfully instituted and carried on by the prosecutor in the name of the People. The individuals acting as relators were proper persons to act in that capacity.
It is not the law, however, that a person who cannot, in his individual capacity, institute and prosecute a proceeding of this character by reason of the fact that he has no private interest in the matter, can institute and prosecute such a proceeding by beginning it in the name of the People, ■with himself as relator. It may be prosecuted in the name of the People only at the instance of the Attorney General or the State’s attorney and only where the public has an interest in the matter, and the relator, if a private person, must be, as above indicated, one of that portion of the public directly affected.
It appears from the return that two of the commissioners signed the petition for the vacation of the public highway, which was addressed to all of the commissioners,, and that these two commissioners who so signed the petition, with the third commissioner, considered the petition and the three signed the order vacating the highway. In determining whether or not the highway should be vacated the function exercised by the commissioners was judicial in its character. (Drainage Comrs. v. Griffin, 134 Ill. 330.) They were required to use their discretion in determining whether it was right that the highway should be vacated. The two commissioners who signed the petition were moving parties or actors in the proceeding, and in their capacity as commissioners they were called upon to determine whether or not they- would do the thing which in their individual capacities they had asked themselves, as commissioners, to do.
In Gray v. Jones, 178 Ill. 169, Ellis, who was a justice of the peace, and certain others, had petitioned for the laying out of a new road. The prayer of the petition was granted. One of the petitioners, Jones, made a collusive arrangement with the commissioners and Ellis to appeal to three supervisors for the purpose of having the order laying out the road confirmed. The petition for appeal was filed with Ellis in his capacity as justice of the peace. He assumed jurisdiction and selected the three supervisors to hear the appeal. It was determined that as Ellis was one of those who instituted the proceeding by signing the petition for laying out the road, he was disqualified to entertain the petition for appeal and select the supervisors. This court there held that wherever judicial functions are to be exercised by an officer, he is disqualified to act if he is a complainant or moving party in the proceeding in which the decision is to be rendered. It follows that the two commissioners who signed the petition were not competent to act as commissioners in passing on the petition, and for that reason the record of the proceedings should have been quashed.
It is unnecessary to consider the question which results from the fact that one of the commissioners was the owner of a part of the land over which the highway ran.
The judgment of the circuit court will be reversed and the cause will be remanded to that court, with directions to quash the record of the proceedings of the highway commissioners.
Reversed and remanded, with directions.