People ex rel. Lydston v. Hoyne

Mr. Justice Vickers delivered the opinion of the court: This case comes to this court by a certificate of importance granted by the Appellate Court for the First District. A petition for mandamus on the relation of G. Frank Lydston was filed in the circuit court of Cook county. The purpose of the mandamus proceeding was to compel the State’s attorney of said county to sign a petition for leave to file an information in the nature of quo warranto, which said petition alleged that certain persons therein named were unlawfully elected and acting as trustees for the American Medical Association, an Illinois corporation not for profit. A general demurrer to the petition for mandamus was sustained by the circuit court, whereupon ,the relator elected to abide by his petition, and final judgment being entered against him, he prosecuted an appeal to the Appellate Court. The Appellate Court reversed the judgment of the circuit court and remanded the cause. After the rendition of said judgment reversing and remanding the cause, the Appellate Court, by stipulation of the parties, set aside its judgment and overruled the demurrer and entered a final judgment awarding a peremptory writ of mandamus commanding the State’s attorney of Cook county to sign said information in the nature of a quo warranto in accordance with the prayer of the petition for mandamus. The final judgment of the Appellate Court overruling the demurrer and awarding a writ of mandamus is the judgment brought into review by this appeal. The first question that presents itself is as to the jurisdiction of the Appellate Court "to enter a judgment overruling the demurrer and awarding a peremptory writ of mandamus. This question has not been argued in the briefs. Manifestly, all of the parties were anxious to avoid the'delay that would necessarily be incident to a remandment of the cause to the trial court, and, in so far as they had the power to do so, they have apparently waived all objections and consented to the character of the order entered by the Appellate Court, but if the Appellate Court had no jurisdiction of the subject matter under the law- the consent of parties could not confer that jurisdiction upon it. Section n of article 6 of the constitution provides as follows: “After the year of our Lord 1874, inferior Appellate Courts, of uniform organization and jurisdiction, may be created in districts formed for that purpose, to which such appeals and writs of error as the General Assembly may provide may be prosecuted from circuit and other courts, and from which appeals and writs of error shall lie to the Supreme Court, in all criminal cases, and cases in which a franchise or freehold or the validity of a statute is involved, and in such other cases as may be provided by law. Such Appellate Courts shall be held by such number of judges of the circuit courts, and at such times and places, and in such manner, as may be provided by law; but no judge shall sit in review upon cases decided by him, nor shall said judges receive any additional compensation for such services.” The only jurisdiction that can be conferred, under this section of the constitution, upon the Appellate Courts is an appellate jurisdiction, and the legislature could not, if it attempted to do so, confer original jurisdiction on those courts. (Hawes v. People, 124 Ill. 560.) Section 11 of the Appellate Court act, as amended in 1881, confers jurisdiction upon the Appellate Courts to issue writs of mandamus, certiorari, supersedeas, and all other writs not prohibited by law which may be necessary to enforce the due administration of justice in all matters within the jurisdiction of said courts. This statute was construed by this court in Hawes v. People, supra, and it was held the statute only authorized the issuance of such writs when they were necessary in furtherance of the appellate jurisdiction. When the Appellate Court has acquired appellate jurisdiction of a cause, then such court may issue such supplemental writs as may become necessary in order to enable the court to exercise the jurisdiction conferred upon it by law. But this statute is nothing more than a legislative declaration that the granting of a power carries with it, by implication, all such additional powers as are necessary to the complete exercise of the power which is expressly given. This statute does not confer original jurisdiction upon the Appellate Courts, and it could not be sustained as a valid constitutional law if it did. This court, in the case of People v. Circuit Court of Cook County, 169 Ill. 201, held that the Appellate Courts could exercise appellate jurisdiction only, and that such courts could not issue original writs of prohibition, and the doctrine of Hawes v. People was reaffirmed. Overruling a demurrer and awarding a writ of mandamus is the exercise of original and not appellate jurisdiction. The Appellate Court’s jurisdiction being purely appellate, it had no power, under the law, to overrule the demurrer and award a mandamus. The proper judgment was entered in the first instance, and in vacating that judgment and entering the judgment here under review the Appellate Court erred, for which its judgment must be re-, versed and the cause remanded to that court, with directions to enter a judgment reversing and remanding the cause to the circuit court of Cook county. Reversed and remanded, with directions.