The opinion
Mr. Justice Daily, dissenting:
While I agree with the result reached in the majority opinion, I am compelled to dissent for the simple reason that a franchise is not involved, within the meaning of section 75 of the Civil Practice Act, so as to give us jurisdiction to entertain the appeal.
It is fundamental that this court only has such appellate jurisdiction as is given to it by law, and that it must, of its own motion, inquire into jurisdiction even though such question has not been raised by the parties. (Freese v. Jeffords, 7 Ill.2d 189 ; Central Standard Life Ins. Co. v. Davis, 7 Ill.2d 266 ; In re Estate of Kaindl, 411 Ill. 608 ; Liberty National Bank v. Metrick, 410 Ill. 429 ; Seeds v. Chicago Transit Authority, 409 Ill. 566 ; Perlman v. Thomas Paper Stock Co. 378 Ill. 238 ; People ex rel. Sweitzer v. Gill, 364 Ill. 344 .) Neither consent of the parties nor their desire that this court should consider a case can confer jurisdiction and, just as certainly, neither can the desires of this court. The present opinion totally ignores these principles.
As distinguished from the situation where the decision involves the continued existence of one municipal corporation and the creation of another, (People ex rel. Doney v. Village of Skokie, 15 Ill.2d 288 ; Winne v. People ex rel. Hess, 177 Ill. 268 ,) or where the proceeding is in quo warranto to determine whether a school district has been validly organized, (People ex rel. Beedy v. Regnier, 377 Ill. 562 ; People ex rel. Koensgen v. Strawn, 265 Ill. 292 ,) this court has consistently held that a franchise is not involved in detaching territory from one school district and attaching it to another, inasmuch as neither the legal existence nor the exercise of franchise privileges is put in issue. (Community Unit School Dist. v. County Board of School Trustees, 6 Ill.2d 320 ; Trico Community Unit School Dist. v. County Board of School Trustees, 6 Ill.2d 323 ; People ex rel. Groff v. Board of Education, 383 Ill. 166 .) A proceeding of the latter type involves, rather, as the majority opinion in this case conclusively reflects, only questions relating to the construction of school laws to determine which of two lawfully organized school districts has authority over certain territory. People ex rel. Groff v. Board of Education, 383 Ill. 166 .
There is no doubt but that the present case falls within the latter category, for it involves nothing more than the construction of statutes, the validity of which are not questioned, to determine which of the two school districts involved has authority over disputed territory. If the past decisions of this court are to be adhered to, a franchise is not involved. Nor, in the absence of an issue validly involving a franchise, can it be said that we may take jurisdiction merely to construe the statutes. Both under section 75 of the Civil Practice Act and the law which preceded it, this court has consistently held that questions relating to the application or construction of a statute do not confer jurisdiction to entertain a direct appeal. Clark v. Kern, 171 Ill. 538 ; Perrine v. Bisch & Son, 409 Ill. 175 ; Taylor v. Krupp, 14 Ill.2d 36 .
Apart from .my primary concern that we do not have jurisdiction on direct appeal in this case, the clear application of People ex rel. Groff v. Board of Education, 383 Ill. 166 , and Community Unit School Dist v. County Board of School Trustees, 6 Ill.2d 320 , and the total disregard by the majority of the rule of law they announce indicates to me, to use the words of Mr. Justice Roberts dissenting in Smith v. Allwright, “an intolerance for what those who have composed this court in the past have conscientiously and deliberately concluded, and involves an assumption that knowledge and wisdom reside in us which was denied to our predecessors.” 321 U.S. 649, 666 , 88 L. ed. 987, 999.
This feeling does not stem from this decision alone but from the tendency'of numerous decisions in the recent past to ignore or overthrow, with resulting confusion to bench and bar alike, the concepts upon which the jurisdiction of this court upon direct appeal were based. Until La Salle Nat. Bank v. County of Cook, 12 Ill.2d 40 , this court had consistently held that where the only question involved on appeal was the validity of a zoning ordinance as it applied to certain property, such question involved only the application and construction of the ordinance and did not present a constitutional question so as to authorize a direct appeal. (American Smelting & Refining Co. v. City of Chicago, 409 Ill. 99 ; Village of Riverside v. Kuhne, 397 Ill. 108 ; Pollack v. County of Du Page, 371 Ill. 199 .) Yet, in the La Salle National Bank case, it was held that such a question involves a construction of the constitution, even though the opinion did no more than to make a factual determination as to whether the zoning ordinance in that case, as applied to the property in question, bore a real and substantial relation to the public health, safety, morals and welfare.
Again, since People v. McGowan, 415 Ill. 375 , in which I was the reluctant author of the court’s opinion, we have taken jurisdiction of every misdemeanor involving a search and seizure, even though a decision on the issue did not call for a construction of the constitution, but called only for an application of existing and no longer debatable law to make a purely factual determination of whether a search was reasonable or unreasonable. Yet, where a misdemeanor was involved, our predecessors had held this court would not take jurisdiction merely to make the factual determination or to apply the settled constitutional law. (People v. Totten, 378 Ill. 385 ; People v. Martens, 338 Ill. 170 ; People v. Hord, 329 Ill. 117 ; People v. Blenz, 317 Ill. 639 .) My sympathy goes out to counsel in a recent case who tried to reconcile the two lines of cases and concluded that he “could not fully perceive the rationale of the court.”
Now we come to the present decision which unsettles what counsel and litigants had reason to believe was the settled law on the question of when a franchise was involved in school cases so as to give us jurisdiction upon direct appeal. To again quote from Mr. Justice Roberts in Smith v. Allwright, the growing practice of this court to disregard the settled precepts by which our jurisdiction has been heretofore determined “tends to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only.” 321 U.S. 649, 669 , 88 L. ed. 987, 1000.
We have no jurisdiction in this case and it should therefore be transferred to the Appellate Court.