People ex rel. Holvey v. Kapp

Full title: People ex rel. Edward Holvey, Appellees, v. John W. Kapp et al., Appellants

Court: Appellate Court of Illinois, Third District

Date published: May 8, 1933

271 Ill. App. 102 (Ill. App. Ct. 1933)

Opinion

Gen. No. 8,573.

Opinion filed May 8, 1933.

1. COURTS — Appellate Court without jurisdiction of constitutional questions. The Appellate Court is without jurisdiction to pass upon the constitutionality of statutes.

2. APPEAL AND ERROR — when case may not be reargued upon second appeal. Where an appeal was taken from a judgment sustaining a demurrer to a petition for mandamus, and pursuant to the mandate of the Appellate Court the circuit court thereafter overruled said demurrer and awarded the writ of mandamus, defendants may not on appeal from the latter judgment have reviewed questions which were before the court on the first appeal.

Appeal by defendants from the Circuit Court of Sangamon county; the Hon. CHARLES G. BRIGGLE, Judge, presiding. Heard in this court at the October term, 1931. Affirmed. Opinion filed May 8, 1933.

HUGH J. DOBBS, for appellants.

A. M. FITZGERALD and H. C. MOORE, for appellees.

PER CURIAM.

This case was before this court at a former term. See People ex rel. Holvey v. Smith, 260 Ill. App. 166, and the opinion there set out and published.

The former cause was an appeal from the circuit court of Sangamon county by the appellees herein, from a judgment of said court entered upon the sustaining of a demurrer by appellants herein to the petition of the appellees herein, praying for the issuance of a writ of mandamus, as set out in said petition. Pursuant to the mandate of this court in said cause, the circuit court of Sangamon county overruled said demurrer and appellants herein refusing to plead further, said court awarded the writ of mandamus by a judgment entered, from which order and judgment appellants have brought this appeal.

No new question, within the jurisdiction of this court, is raised by this appeal that was not before this court on the former hearing.

As to the point raised and cases cited tending to show that certain portions of the statutes of Illinois, providing for the commission form of government, are unconstitutional, it is sufficient to say that no such questions appear by the record to have been raised in the court below, are not within the jurisdiction of this court and we have no power to pass upon such questions. This case is merely an attempt to reargue the former case.

The judgment of the circuit court of Sangamon county is, therefore, affirmed.

Affirmed.