188 Ill. 150 | Ill. | 1900
delivered the opinion of the court:
The verdict of the jury empaneled by the justice of the peace on the certificate filed by the appellee commissioners was in the nature of a judicial ascertainment of the amount of damages to be paid by the town to Stewart in the event the commissioners finally determined to establish and open the road. The statute made it the duty of the justice of the peace to enter this verdict upon his docket, “in the nature of a judgment.” This verdict, and the entry thereof on the justice’s docket, is a final judicial determination of the amount of damages which the land owner shall receive, unless an appeal be prosecuted to a higher court in the same manner as an appeal is taken from a judgment entered by a justice in other civil cases. (Hurd’s Stat. 1899, sec. 46, chap. 121, entitled “Roads and Bridges;” Ravatte v. Race, 152 Ill. 672; Chicago, Santa Fe and California Railway Co. v. Lorance, 180 id. 180.) In Ravatte v.Race, supra, we said (p. 678): “The appeal from this judgment must be taken to a higher court in the same way as an appeal from any other justice’s judgment is taken. There can be no such thing as an appeal from the verdict of a jury, or judgment rendered thereon, to three supervisors.” This view is not at variance with the true construction of section 60 of said chapter 121. Said section 60 provides: “Upon such appeal the said supervisors shall have the same power and authority that is by this act conferred on the commissioners, not only in regard to the laying out, altering, widening or vacating any road, but shall have the same power to cause a jury to be called to assess damages, whenever the state of the proceedings require it, and the supervisors cannot agree with the owners of the land in regard to the same.”
The power and authority thus conferred upon the supervisors to cause a jury to be called to assess damages is expressly restricted to cases where “the state of the proceedings” requires that course to be taken, — that is to say, where that step in the proceeding has not already been taken. When, as in this case, a jury had been empaneled, a verdict rendered fixing the damages to which the land owner is entitled, and such verdict entered upon the justice’s docket “in the nature of a judgment," and the same had not been appealed from to a higher judicial tribunal, and the commissioners had decided the cost of the proposed road, as shown by the adjudication thereof, would be an unreasonable burden on the tax-payers of the town, the appeal to three supervisors is an appeal from the decision of the commissioners, and serves only to bring before the supervisors the action of the commissioners in refusing to establish the road. The decision of the jury as to the assessment of damages, and the entry thereof on the docket of the justice of the peace in the nature of a judgment, under the certificate filed by the commissioners in the case at bar, is unaffected by the appeal. If a board of highway commissioners, .on the hearing provided for.by said sections 33 and 34 of said chapter 121, should refuse to grant the prayer of a petition for the establishment of a new road, it would become the duty of the commissioners to file their decision with the clerk of the town, and it would thereupon become a final order and therefore appealable. If an appeal should be perfected from such an order and the supervisors should determine to grant the prayer of the petition, the supervisors thereupon, by force of the provisions of said section 60, would become invested with the power and authority possessed by the highway commissioners in the first instance, and, as the damages to which the owners of the lands over which the road the supervisors decided should be established would pass had not been assessed by a jury at the instance of the commissioners, “the state of the proceeding” before the supervisors would be such as to require that such supervisors should cause a jury to be empaneled to assess such damages. But when such damages have been assessed in the cpurse of the proceeding before the commissioners, the “state of the proceeding,” on appeal, is not such as to require that that assessment should again be made.
The decision of the jury empaneled at the instance of the supervisors is without legal effect, and the circuit court correctly ruled that the order of the supervisors based thereon, and enforceable only through payment of the amount of damages fixed by such decision, should not be enforced by mandamus.
The judgment is affirmed.
Judcgment affirmed.
