corpus, and under the federal statutes ap- | issued upon such judgment or decree, unless peals were taken to the United States Su- the time during which such party may be preme Court. It was contended that there legally detained has expired." Section 22 was absolutely no evidence to sustain the of the same act provides: "If it appear that conviction of the petitioners, and that upon the prisoner is in custody by virtue of prothat ground they should have been discharg- cess from any court legally constituted, he ed; but the court, speaking through Mr. Jus- can be discharged only for some of the foltice Day, said (218 U. S. 448, 31 Sup. Ct. lowing causes: (1) Where the court has ex47 [54 L. Ed. 1101]): "The attack is thus ceeded the limit of its jurisdiction, either as not upon the jurisdiction and authority of to the matter, place, sum or person; (2) the court to proceed to investigate and deter- where, though the original imprisonment was mine the truth of the charge, but upon the lawful, yet, by some act, omission or event sufficiency of the evidence to show the guilt which has subsequently taken place, the parof the accused. This has never been held to ty has become entitled to his discharge; (3) be within the province of a writ of habeas where the process is defective in some subcorpus. Upon habeas corpus the court ex- stantial form required by law; (4) where the amines only the power and authority of the process, though in proper form, has been iscourt to act-not the correctness of its con- sued in a case or under circumstances where clusions." the law does not allow process or orders for imprisonment or arrest to issue; (5) where, although in proper form, the process has been issued or executed by a person either unauthorized to issue or execute the same, or where the person having the custody of the prisoner under such process is not the person empowered by law to detain him; (6) where the process appears to have been obtained by false pretense or bribery; (7) where there is no general law, nor any judgment, process if in a civil suit, nor any conviction if in a criminal proceeding. No court or judge, on the return of a habeas corpus, shall, in any other matter, inquire into the legality or justice of a judgment or decree of a court legally constituted." In Re Gregory, 219 U. S. 210, 31 Sup. Ct. 143, 56 L. Ed. 184, an interesting and instructive opinion was written by Mr. Justice Hughes on behalf of all the members of the court. It was an original petition for writ of habeas corpus to inquire into a detention under a conviction in the police court of the district of Columbia of engaging in a gift enterprise business within the district. The rule was discharged and the petition dismissed. Said the court: "The only ques-order or decree of a court to authorize the tion before us is whether the police court had jurisdiction. A habeas corpus proceeding cannot be made to perform the function of a writ of error, and we are not concerned with the question whether the information was sufficient or whether the acts set forth in the agreed statement constituted a crime that is to say, whether the court properly applied the law-if it be found that the court had jurisdiction to try the issues and to render the judgment." Numerous cases are then cited. The court then cites the opinion of Mr. Justice Day in Harlan v. McGourin, supra, and quotes from it with approval. Other cases are approvingly noted, including Ex parte Parks, supra. The opinion concludes thus: "In hearing this application this court does not sit to review the correctness of the conclusion of the police court as to the violation of the statute by the petitioner, or of the decision of the court of appeals of the district as to the sufficiency of the information filed against him. The question here is not one of guilt or innocence, but simply whether the court below had jurisdiction to try the issues; and, as we find that the statutes conferred that jurisdiction, the application for a writ of habeas corpus must be denied." [2] It is manifest from the foregoing decisions and statute that, when a petition is presented to a judge for a writ of babeas corpus to discharge a prisoner held under judicial process, the question of the jurisdiction of the court to render the judgment, which is the foundation of the process by which the prisoner is held, lies at the very threshold of the habeas corpus proceeding, and if it appears from the petition, return, or in any other legitimate manner, that the court that rendered the judgment by virtue of which the process issued from which discharge is sought had jurisdiction of the person of the prisoner and of the subject-matter of the suit in which the judgment was rendered, then the judge to whom the petition is presented should decline, for lack of jurisdiction, to discharge the prisoner, as if the court that rendered the judgment upon which the process issued by which the prisoner is held had jurisdiction of the person of the prisoner and the subject-matter of the suit, then the case of the prisoner is not one for discharge upon writ of habeas corpus but for review by appeal or on writ of error, as no court upon habeas corpus can sit as a court of review to retry cases which have by virtue of a final judgment or been legally decided upon full jurisdiction decree of any competent court of civil or by other courts, especially other courts of Section 21 of the chapter on habeas corpus (Hurd's Stat. 1909, p. 1232) contains, among other things, the following provision: "No person shall be discharged under the provisions of this act, if he is in custody, * that the circuit court of Cook county is It is clear, in view of the holding of the courts and the statute of this state, that the order of discharge of Edward S. Gard entered by Judge Petit was a usurpation of judicial power, and that the order entered by Judge Scanlan in the contempt proceedings was not annulled thereby, but possesses to-day the same vitality it possessed upon the day upon which it was entered. question in People v. Superior Court, supra, | lutely void. In the Murphy Case we thus on page 198 of 234 Ill., on page 878 of 84 express our view upon this subject (212 III. N. E., it was said: "In this case it appeared | 589, 72 N. E. 904): "The contention or view from the face of the petition for a writ of habeas corpus that the question thereby raised had, as a matter of law, been adjudicated against Lipsey by this court when his case was here on writ of error, and it therefore appeared from the petition that Lipsey, so far as imprisonment by virtue of that judgment was concerned, could not by the superior court, or any judge thereof, be discharged, admitted to bail, or otherwise relieved, and for that reason the writ should not have issued. It is contended, however, that even if this be true the superior court was not without jurisdiction; that, having general jurisdiction in habeas corpus, the court had the power and authority to issue the writ even though the prisoner could not lawfully be discharged. We have held that jurisdiction is authority to hear and decide a cause, and that it does not depend upon the correctness of the decision made. People v. Talmadge, 194 Ill. 67 [61 N. E. 1049]. 'Jurisdiction of the tribunal does not depend upon actual facts alleged, but upon authority to determine the existence or nonexistence of such facts and to render judgment according to its findings.' Bailey on Jurisdiction, § 2. The language last quoted seems to us to be accurate. Applying that state ment of the law to this petition for habeas corpus, it is apparent that the petition conferred no jurisdiction upon the superior | court. The fact alleged was that the judgment in the criminal case was void. It also appeared from the petition, as a matter of law, that this court, upon a writ of error, had determined that alleged fact to be untrue and had determined that the judgment was valid. That being the case, the superior court was without authority to determine the existence or the nonexistence of the alleged fact. That question had already been determined by a tribunal whose finding the superior court had no authority to review. The superior court was therefore without jurisdiction in the premises and without right or power to order the issuance of the writ. People v. Murphy, 212 Ill. 584 [72 N. E. 902]; In re Williams [150 Ala. 489, 43 South. 490] 10 L. R. A. (N. S.) 1129 [124 Am. St. Rep. 79]; Commonwealth v. Lecky, 1 Watts [Pa.] 67 [26 Am. Dec. 37]; State v. Dobson, 135 Mo. 1 [36 S. W. 238]; Martin v. District Court, 37 Colo. 110 [86 Pac. 82, 119 Am. St. Rep. 262]; Doyle v. Commonwealth, 107 Pa. 20." [3] It is clear from the petition and return that Judge Scanlan had jurisdiction to commit Edward S. Gard for contempt. Those jurisdictional facts appear on the face of the petition and return. Judge Petit was without jurisdiction to enter the order of discharge, and the order of discharge, being [4] It is strenuously contended on behalf of the respondent that he was not bound to hold Edward S. Gard under the order entered by Judge Scanlan in the contempt proceedings in defiance of the subsequent order entered in the habeas corpus proceedings by Judge Petit, as it is said it was not his duty, as sheriff, to stop and inquire whether Judge Petit had jurisdiction to issue the order of discharge or not, but that he had the right to assume the order of discharge was a valid order and to obey it, and he has in support of this position cited a large number of authorities to the effect that an officer is protected by process regular upon its face. We have no quarrel with the authorities cited by the respondent upon that proposition. The rule therein announced, however, only applies where process regular upon its face is invoked for the protection of an officer who has acted under such process without notice of its invalidity and in good faith, and does not apply where the officer has notice that the process under which he is acting is void and has been issued by a court that is without jurisdiction to issue the same. Tefft v. Ashbaugh, 13 Ill. 602; Gorton v. Frizzell, 20 Ill. 292; Tuttle v. Wilson, 24 Ill. 553. In the Tefft Case, supra, on page 603 of 13 Ill., it was said: "It appeared that Heath arrested the plaintiff by virtue of a capias ad satisfaciendum and. placed him in the custody of the jailor. This proof showed, prima facie, that he was acting within the limits of his official duty. The writ protected him unless it appeared on its face that it was issued by a court having no jurisdiction of the person of the plaintiff, or unless he had notice in some other way that it was issued without au 2. EMINENT DOMAIN (§ 59*)-CONDEMNATION— supra, on page 295 of 20 Ill., it was said: | the elevation of the company's tracks, and for a "Being void [meaning the process] the de- subway to be constructed thereunder. fendant could not have justified under it in [Ed. Note.-For other cases. see Municipal an action against him for false imprison- Corporations, Dec. Dig. § 649.*] ment. The sheriff had notice, by the recital of the affidavit set out in the writ, that the justice of the peace had no jurisdiction or power to issue it and that he could not execute it without being a trespasser. An officer cannot justify under a void writ." In the Tuttle Case, supra, on page 561 of 24 Ill., it was said: "The rule that a ministerial officer is protected in the execution of process issued by a court or officer having jurisdiction of the subject-matter and of the process, if it be regular on its face and does not disclose a want of jurisdiction, is a rule of protection, merely, and beyond that confers no right. It is held to be personal to the officer himself and affords no shelter to the wrongdoer, under color of whose process, if it be void, the officer is called upon to act." [5] The order of discharge entered in the habeas corpus proceeding by Judge Petit was absolutely void, and the petition and return in the habeas corpus proceeding showed it was void. The respondent would therefore have been justified in disobeying it and in holding Edward S. Gard. The respondent was, however, between two fires. The order entered by Judge Scanlan required him to hold and imprison Gard, and the order of Judge Petit required him to discharge Gard. He was therefore bound to act-that is, obey one order and disobey the otherand he was bound to act at his peril, and acting, undoubtedly, upon the best light he had, he determined to obey what subsequently proved to be the void order, and, now that it has been held by this court (the court of last resort) that the order entered by Judge Petit is void, that order no longer stands in the way of the execution of the order entered by Judge Scanlan. While the order entered by Judge Petit had the effect to delay the enforcement of the law for a time, it will not have that effect longer. The writ of mandamus will issue according to the prayer of the petition. Writ ordered. (251 Ill. 629.) CITY OF CHICAGO v. WALKER et al. (Supreme Court of Illinois. Oct. 25, 1911. Rehearing Denied Dec. 7, 1911.) 1. MUNICIPAL CORPORATIONS (§ 649*)-OPENING OF STREET-ORDINANCE. Objection to an improvement ordinance for the opening of a street from one to the other of two other streets that it makes no provision for acquiring, by a condemnation or otherwise, the right to cross the line of a railroad occupying part of the space between the two other streets, is obviated by another ordinance, accepted by the railroad company, providing for 3. EMINENT DOMAIN (§ 178*)-DEFECT—Sub SEQUENT APPEARANCE. Defect of parties at the inception of a condemnation proceeding, because of one not having been made a party, is cured by his appearance being subsequently entered in the proceeding. [Ed. Note.-For other cases, see Eminent Domain, Dec. Dig. § 178.*] 4. MUNICIPAL CORPORATIONS (§ 649*)—OPENING STREETS-ORDINANCES. There having in addition to an ordinance for the opening of a street, which, if at grade accepted by the railroad company, providing for would cross a railroad, been passed an ordinance, elevation of the company's tracks, and for a subway to be constructed thereunder, whereby the city will enjoy an easement in the right of way at the intersection for subway purposes, the opening of the street cannot be defeated be cause of the city not having condemned the right of way under the tracks. [Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 649.*] 5. EMINENT DOMAIN (8 233*) STREET-CONDEMNATION ING. OPENING - RIGHT OF HEAR A manufacturing company having by contract with a railroad company a right to have a switch track connecting with its factory mainright in condemnation proceedings under an tained, and having by cross-petition set up that ordinance for opening a street across the track, it cannot be deprived of that right without an opportunity to be heard on the question in such proceedings. [Ed. Note. For other cases, see Eminent Domain. Dec. Dig. § 233.*] Appeal from Circuit Court, Cook County; Mazzini Slusser, Judge. Proceeding by the City of Chicago against Henry H. Walker and the Illinois Vinegar Manufacturing Company for opening a street. From a judgment for the city, the other parties appeal. Reversed in part and remanded. This was a proceeding brought by the city of Chicago in the circuit court of Cook county, under the local improvement act (Hurd's Rev. St. 1909, c. 24, §§ 507-605), for the opening of South Rockwell street, in Chicago, from West Eighteenth place to West Nineteenth street. The appellants appeared and filed legal objections to said proceedings, which were overruled, and the case was then submitted to a jury upon the ques tions of compensation and benefits. This The jury fixed the compensation to be paid the owner of the west 33 feet taken from block 8 at $1,375, and assessed the block, excepting the street, $200, and fixed the compensation to be paid the owner of the east 33 feet of block 9 at $1,455, and assessed block 9, excepting the proposed street, $245. appeal has been prosecuted from the final | judgment, based upon the verdict of the jury, and numerous errors have been assigned. The property sought to be taken is the west 33 feet of block 8 (which is the property of Henry H. Walker), the east 33 feet of block 9 (which is the property of the Illinois Vinegar Manufacturing Company), in McClanahan & Martin, for appellant HenWalker's Douglas Park addition to Chicago, ry H. Walker. John P. Ahrens, for appeland that part of the 4.72 acres of the S. E. lant the Illinois Vinegar Mfg. Co. Philip 1/4 of section 24, town 39 N., range 13 E., J. McKenna and Eugene H. Dupee (William of the third principal meridian, conveyed by | H. Sexton, Corp. Counsel, of counsel), for Allan Robbins to the Chicago, Burlington appellee. & Quincy Railroad Company, and known as tract "A," lying within the 33 feet west of and adjoining and the 33 feet east of and adjoining the east line of the W. 2 of the S. E. 4 of section 24 aforesaid (which is the property of the Chicago, Burlington & Quincy Railroad Company). The property of Henry H. Walker is occupied by the Chicago Steel Foundry Company by a two-pany where it is intersected by said proposstory brick building, the Illinois Vinegar Manufacturing Company occupies its property with its vinegar plant and equipment, and the Chicago, Burlington & Quincy Railroad Company occupies its property, in part, by switch track, which crosses said proposed street and connects with the shipping platform of the Illinois Vinegar Manufacturing Company, located upon block 9. The following plat shows the situation of the property proposed to be taken and the improvements and tracks situated thereon: HAND, J. (after stating the facts as above). [1] First. The first contention made by appellants is that the ordinance for the opening of said street makes no provision for acquiring, by condemnation or otherwise, the right to cross the main line of the Chicago, Burlington & Quincy Railroad Com ed street, and that under the authority of Hutt v. City of Chicago, 132 Ill. 352, 23 N. E. 1010, and kindred cases (as it will be necessary to have future legislative action by the city council of the city of Chicago before said street can be opened by connecting the street situated upon the south side of said line of railroad-that is, the land sought to be condemned-with Rockwell street north of said line of railroad), the street cannot be opened and the land condemned paid for by special assessment. That objection to the improvement ordinance | loading platform, and that the opening of was obviated by the introduction in evidence said proposed street will either require the of an ordinance of the city of Chicago which had been accepted by the Chicago, Burlington & Quincy Railroad Company and which provided for the elevation of the main tracks of the Chicago, Burlington & Quincy Railroad Company in the city of Chicago, and which ordinance expressly provided for a subway to be constructed upon Rockwell street at the intersection of said main line of railroad and said street; and, when the improvement and elevation ordinances are considered together, it is clear provision had been made by the city for the entire improvement-that is, the opening of Rockwell street from West Eighteenth place to West Nineteenth street-and there existed no reason why such improvement could not be made and paid for by special assessment. [2] Second. It is next contended that the city cannot acquire the property sought to be taken in this proceeding for street purposes by reason of the fact that the city heretofore sought to acquire, by condemnation, this same property, and that proceeding is a bar to this proceeding. We are of the opinion the former proceeding is not a bar to this proceeding. The former proceeding occurred more than five years ago, and did not cover the same property as this, and there is nothing in this proceeding to impeach the good faith of the city of Chicago. City of Chicago v. Goodwillie, 208 Ill. 252, 70 N. E. 228. [3] Third. It is further urged that there is a defect of parties in this proceeding, in this: that the Chicago Steel Foundry Company was not made a party. This was true at the inception of the case, but the appearance of the Chicago Steel Foundry Company was subsequently entered, and thereafter there was no defect of parties. Grier v. Cable, 159 Ill. 29, 42 N. E. 395. [4] Fourth. It is also alleged that the elevation ordinance does not authorize the extension of the proposed street across the right of way of the Chicago, Burlington & Quincy Railroad Company's main line. The elevation ordinance provides for a subway at the point in question, and, regardless of the question as to where the fee of the part of the street at that point will rest, the city will enjoy an easement in the railroad company's right of way for subway purposes at that intersection, and the opening of the street cannot be defeated by reason of the fact that the city has not condemned the right of way underlying the main line in this proceeding. [5] Fifth. It is contended that the court erred in declining to permit the Illinois Vinegar Manufacturing Company to make proof that it had an easement in the switch track of the Chicago, Burlington & Quincy Railroad Company, which crosses said proposed elevation of said switch track or its removal. and that in any event said appellant's property will sustain great damage and be largely depreciated in value for the purposes for which it is now used. The offer of proof was that in 1895 an arrangement was entered into between the Chicago, Burlington & Quincy Railroad Company and the Illinois Vinegar Manufacturing Company, whereby. in consideration of the right of the railroad company to extend the foundations of its retaining walls underneath the surface of the land of the Illinois Vinegar Manufacturing Company, the Illinois Vinegar Manufacturing Company should have the right to use the switch track connected with its loading platform; that said arrangement was consummated by the construction of said retaining walls and the switch track; that the Illinois Vinegar Manufacturing Company has had the use of said switch track since that time and is now using said switch track in connection with its plant; and that to remove or elevate the switch track would necessarily require many changes in the construction and operation of its vinegar plant. The Illinois Vinegar Manufacturing Company had filed a cross-petition fully setting up all the facts relied upon by it as showing its interest in the switch track and the damage to its property by the elevation or removal of the switch track, and we are of the opinion the proof offered by it to sustain the allegations of its cross-petition should have been admitted. It is urged by the city that the Illinois Vinegar Manufacturing Company has an adequate remedy for any damage which it may sustain against the city if the city should interfere with its switching privileges as they now exist, and that for that reason the proof was properly excluded. We cannot assent to that view. If the Illinois Vinegar Manufacturing Company, by contract, has a right to have the switch now connected with its shipping platform maintained, it is manifest it cannot be deprived of that right by condemnation when it has filed a cross-petition setting up such right, without having an opportunity to be heard in the condemnation proceedings upon that question. This view is fully sustained by the following authorities: Chicago, Peoria & St. Louis Railway Co. v. Wolf, 137 Ill. 360, 27 N. E. 78; St. Louis, Jacksonville & Chicago Railroad Co. v. Springfield & Northwestern Railroad Co., 96 Ill. 274; Lake Shore & Michigan Southern Railway Co. v. City of Chicago, 151 Ill. 359, 37 N. E. 880; Chicago, Burlington & Quincy Railroad Co. v. City of Naperville, 166 Ill. 87, 47 N. E. 734. The appellants have urged in their briefs other grounds of reversal, but we deem them to be without force. |