In People ex rel. Farwell Co. v. Kelly, 361 Ill. 54, the judgment was considered as a condemnation judgment and § 13 of article 2 of the constitution requires that it be paid forthwith on demand. In People ex rel. Farwell v. Kelly, 367 Ill. 616, the judgment was also considered as a condemnation judgment, and in addition it was said respondents conceded that the holder of the judgment was not limited to the fund raised by the Judgment Tax Fund Act. The same concession appeared in People ex rel. Farwell v. Kelly, 367 Ill. 631.
That consequence is inherent in the rule formulated in Central Union Co. v. Edwardsville, supra. If direct review of the amended order were obtained in the Illinois Supreme Court, rather than denied for lack of a substantial constitutional question, that court would pass not only upon the constitutional questions but upon all other questions as well. Groome v. Freyn Engineering Co., 374 Ill. 113, 28 N.E.2d 274; People v. Kelly, 367 Ill. 616, 618, 12 N.E.2d 612, 613; Geiger v. Merle, 360 Ill. 497, 505, 507, 196 N.E. 497, 500-501.Affirmed.
Nevertheless, Illinois recognizes that a city has no higher duty than to pay the judgments against it and that it has no discretion to depart from statutory methods of payment. People ex rel. Farwell v. Kelly, 367 Ill. 616, 618-19, 12 N.E.2d 612 (1937). Furthermore, Illinois acknowledges that the money awarded in an eminent domain proceeding is the condemnee's property even during the pendency of the condemnee's appeal, when, pursuant to statute, the county treasurer withholds it.
Indeed, it has been stated in Illinois that "A city and its officers can have no higher duty than the payment of an honest debt reduced to judgment against the City. . . ." People ex rel. Farwell v. Kelly, 367 Ill. 616, 12 N.E.2d 612 (1938); 26 Ill.L.P., Mandamus, § 82 at 71.
Although the constitutional basis for our direct appeal is no longer present, we choose in our discretion to retain jurisdiction over this case. See McGill v. Illinois Power Co., 18 Ill. 2d 242, 244 (1959); People ex rel. Farwell v. Kelly, 367 Ill. 616, 618 (1937). An appellate issue is moot when it is abstract or presents no controversy.
But in view of our decision in Rylander v. Chicago Short Line Railway Co. 17 Ill.2d 618, which holds that section 5(b) of the Workmen's Compensation Act has no application to an employee's common-law right of action against a third-party tortfeasor, it is unnecessary to consider the constitutional questions raised by the plaintiff. We retain jurisdiction, however, to consider other questions raised by the plaintiff on appeal and by the defendants on cross appeal even though these matters, considered alone, would not warrant a direct appeal. Goodrich v. Sprague, 376 Ill. 80; People ex rel. Farwell v. Kelly, 367 Ill. 616. The first of these questions concerns the dismissal of count 2 of the complaint.
The appeal is properly before this court. Ill. Rev. Stat. 1951, chap. 110, par. 199; People ex rel. Farwell v. Kelly, 367 Ill. 616. Section 10 of article II of the Illinois constitution provides that "No person shall be compelled in any criminal case to give evidence against himself."
The rule, however, is that where this court acquires jurisdiction of a cause on the ground of the existence of a constitutional question, it has jurisdiction to pass upon all questions proper to be passed upon and disposed of in the case. (People v. Kelly, 367 Ill. 616; Burket v. Reliance Bank and Trust Co. supra.) In so doing, this court will not weigh the evidence but will review it to determine whether there was any evidence, taken most favorably with all its reasonable intendments, to support the plaintiff's claim.
Resistance is predicated upon the premise that where there is a constitutional question in the cause at the time an appeal is prosecuted, this court will entertain jurisdiction even though one of the parties thereafter waives his constitutional point. People v. Kelly, 367 Ill. 616; Kowalczyk v. Swift Co. 317 id. 312. Defendant Weinacker argues that a person who holds stock in an Illinois banking corporation as pledgee, and who is shown on the corporate records to have been such pledgee, is not liable as a stockholder within the contemplation of section 6 of article II of the constitution.
In People v. City of Cairo, 50 Ill. 154, this court held that a surplus existing in an improvement fund should be used to discharge a debt owing by the city of Cairo, and we cannot find where this authority has been overruled or departed from. In People v. Kelly, 367 Ill. 616, we said: "A city and its officers can have no higher duty than the payment of an honest debt reduced to judgment." It appears to us that there is no question of a debt being owing to the petitioner; that it is of long standing, and that the appellants at the time the order was made by the superior court had funds which they could make available for the payment of this debt. It is claimed, however, that the writ of mandamus awarded is not broad enough to compel the city officers to take the surplus money from the garbage fund to apply in discharge of this judgment.