The opinion
Mr. PRESIDING JUSTICE TRAPP dissenting:
In granting administrative review to petitioners but denying such to objectors, this statute violates the equal protection and due process provisions of the Illinois and United States Constitutions.
In Hecker v. Illinois Central R.R. Co., 231 Ill. 574 , 83 N.E. 456 , the Supreme Court examined the provisions of the Civil Practice Act conceming appeals from the appellate court and held that it was unconstitutional as to the provision which granted appellee an appeal to the supreme court but denied such appeal to an appellant. It was said that the legislature cannot allow an appeal to one party from an adverse decision and deny it to another.
In Funkhouser v. Randolph, 287 Ill. 94 , 122 N.E. 144 , a statute authorizing organization to a special drainage district included a provision that a court’s finding that the district should be organized was conclusive as to objectors but was not conclusive upon the petitioners if the findings were against them. Holding the provision void, the court said:
“The restrictions on such appeal or writ of error on the review of the facts found are only against the defendants in case the finding is against them. Unilateral restrictions of this character on the right of review are repugnant to the constitutional provisions guaranteeing every person equal protection of the law. Every citizen has a right, under such guaranties, to insist that his rights of life, liberty and property shall be determined by the same rules which settle and determine similar rights of others.” 287 IE. at 105.
We can perceive no distinction by reason of the form of judicial review provided in the statute.
To meet the standards of equal protection, the statutory distinctions drawn must have some relevance to a purpose of reasonable classification. (Rinaldi v. Yeager, 384 U.S. 305 , 16 L.Ed.2d 577 , 86 S.Ct. 1497 .) In Lindsey v. Normet, 405 U.S. 56 , 31 L.E.2d 36 , 92 S.Ct. 862 , an Oregon statute upon forcible entry and retainers required that a tenant who wished to appeal an adverse judgment must post bond in twice the amount of rent due and forfeit the entire amount if the judgment was affirmed. It was held that such provision had no reasonable relationship to any valid state objective and violated due process. In North Carolina v. Pearce, 395 U.S. 711 , 23 L.Ed.2d 656 , 89 S.Ct. 2072 , it was said that if appellate review is established, it must be free of unreasoned distinctions that can only impede open and equal access to the courts.
In People v. Sholem, 238 Ill. 203 , 87 N.E. 390 , the statute did not provide for an appeal by the attorney general from an order of a county judge assessing the inheritance tax. The court said:
“A statute which was so framed that literally it is only available to one of the parties to review the proceedings should be so construed as to extend to the other party the same means for the correction of errors. The right to review should be held reciprocal rod alike demandable by either party. [Citation.] The legislature had the power to regulate appeals and writs of error, but in so doing it has no right to discriminate between the parties and allow to one party an appeal from an adverse decision and not allow it upon equal terms to the other. [Citation.] If the legislature intended the provision in section 11 to permit an appeal only by the persons interested in the property of the estate assessed, then that provision, under these authorities, would be unconstitutional.” 238 Ill. at 208-209 .
If the Legislature, by this statute, intended that administrative review should be available only to petitioners, upon these authorities the statutory provision is unconstitutional.
The cited Mills Prairie opinion did not undertake to consider the issue of constitutionality raised here. Again, the principal opinion has not undertaken to discover any rational, relevant or reasonable basis for distinguishing between petitioners and objectors for purposes of administrative review.
The motion to vacate the order of dismissal should be granted.