author: Mr. Justice Brown

text:
    City of Chicago v. Walter Bullis.
    Gen. No. 18,589.
    1. Civil Service Act—when appointee under, entitled to recover compensation. An officer who is an appointee under the Civil Service Act, who has been wrongfully discharged, may, upon the discharge proceedings being quashed, recover his salary for the period during which he was so illegally kept from performing his duties, and this notwithstanding the pendency of new charges predicated upon the same matter which founded the basis of the original charges, the quashing of which original charge was because of irregularity in proceedings."

      2. Civil Service Act—distinction between office and employment. The distinction between an office and employment, so far as the right to compensation goes, is that under the former the recovery of compensation may be had regardless of efforts to earn in other lines of occupation during a period of illegal deprivation of tenure.
    3. Civil Service Act—what essential to recovery of compensation annexed to office. In order to recover compensation annexed to an office by one who has been illegally deprived thereof, it is essential that proof of legal right to such office be made; proof of de facto right is not sufficient.
    4. Civil Service Act—what office and not employment. The position of patrolman in the city of Chicago is an office, and not an employment.
    5. Ordinance—what competent in proof of. An ordinance may be proven by the introduction of a pamphlet containing the same, purporting to be published by authority, notwithstanding such pamphlet contains matter other than ordinances.
    6. Ordinance—when objection to manner 'of proof of, insufficient. An objection to the manner of proving an ordinance must be specific in order to avail. ,
    7. Statutory law—what does not effect repeal. Where there is apparent no conflict or intention to supersede, a re-enactment of an earlier statute has been held a continuance, not a repeal, even though a later act expressly repeals the earlier.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed January 13, 1908.
    Michael F. Sullivan, Clyde L. Day and George W. Miller, for appellant; Edward J. Brundage, of counsel.
    A. D. Gash, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal from a judgment of the Superior Court of Cook county against the city of Chicago in favor of Walter Bullís, the appellee, for $2,660.20, which was an amount sued for and recovered by Bullís as pay or salary as a patrolman of the city of Chicago, which had not been paid him. Bullís, it is admitted, held the position of patrolman in the police department of the city of Chicago, under the classified civil service from April 14, 1898, to November 1, 1903. On this last date he was suspended by the head of the. police department. After a hearing on charges brought against him before the Civil Service Commissioners he was found guilty by the Police Trial Board and his dismissal from the police department ordered. This finding and decision was approved by the Civil Service Commission. Bullís secured a writ of certiorari from the Superior Court of Cook county to the Civil Service Commissioners, and the Superior Court on the return of the Civil Service Commissioners quashed the same and ordered that the proceedings of the Police Trial Board and the Civil Service Commissioners in and about the discharge be held for naught. The Civil Service Commissioners and the city of Chicago appealed to this court, where the judgment of-the Superior Court was affirmed. City of Chicago v. Bullis, 124 Ill. App. 7. In the opinion in that case the court says (quoting from People v. Kipley, 171 Ill. 44): “ ‘An office is a mere right to exercise a public function or employment.’ Such is the very right involved in this case. * * * A patrolman legally in office has the right to remain in it while it exists so long as he conducts himself properly and is capable of discharging and does discharge efficiently and faithfully the duties of the office and until he arrives at the age limit, if there be one, and while he so remains he is entitled to the salary attached to the office. ‘Offices, which are a right to exercise a public or private employment and to take the fees and emoluments thereunto belonging, ’ etc. 2 Blackstone’s Com. 36.” The court upholds the decision of the Superior Court on the ground that no notice was shown by the return to have been given appellee of the time and place of trial, and that whether or not Bullís could have been legally tried without such notice, in the absence of a rule of the Civil Service Commission requiring it, he could not be so tried in the face of the valid rule which existed and did require it.

From the decision of this court the Civil Service Commissioners and the city of Chicago appealed to the Supreme Court, which again affirmed the judgment. Powell et al. v. Bullis, 221 Ill. 379. The Supreme Court noticed the contention that as the “right of Bullís to hold the office of policeman” was not a property hut a personal right, the Superior Court had no right to issue the writ and rejected it as untenable. It sustained the judgment of the Superior Court on the same ground taken by the Appellate Court.

June 1, 1906, Bullís was restored to duty. Charges under date of July 24, 1906, were again made against him before the Civil Service Commission, by the Chief of Police, who had been changed since the charges of 1903.

This suit was brought June 19, 1906, before the said charges of 1906 were filed, but at the time of the trial of this cause in the Superior Court in January, 1907, they were pending and undisposed of before the Civil Service Commission.

The present suit was for the salary of Bullís as patrolman of the city of Chicago from November 1, 1903, to June 1, 1906, which had not been paid him on account of his attempted discharge.

The cause was submitted to the court without a jury, and the court found in favor of the plaintiff for $2,660.20. From that judgment this appeal was taken, and it is here assigned for error that the court below erred in refusing a motion made during the trial to dismiss the action as prematurely brought, on the ground that the charges of-1903 against the plaintiff had never been disposed of before the Civil Service Commission, and having been refiled with additional specifications in 1906, were pending and undisposed of when the present suit was tried. It was contended that if thereafter plaintiff should be ordered discharged by the Civil Service Commission, such discharge would date back to the time of his first suspension in 1903. The denial of another motion to continue the trial of the present cause for the same reason was also denied, and this also is claimed to he erroneous. The view of the law by the trial judge which resulted in his denial of these motions also caused him to exclude from evidence the said charges and proceedings of 1906, and to refuse to hold as a proposition of law applicable to this case that “If the charges preferred against the plaintiffs by the general superintendent of police are still pending and undetermined, and have been partially heard by the Civil Service Commission, then this action has been prematurely brought.” These rulings, therefore, are also charged to be erroneous.

It is also, under the assignments of error, argued by the appellant that the position of police patrolman is not an office and a patrolman is not an officer, but that the position is a mere employment, and the person holding it a mere employe, and that consequently he is not entitled to his salary while unemployed for the city, or that at least the court erred in so applying the rule of law that the title to an office carries with it the right to the salary, as to exclude as im- . material and not tending to reduce the damages, evidence that during the time of his enforced separation from his duties as a policeman the plaintiff received from other employers compensation for- services.

It is also argued that even if the position of police patrolman is an office and not a mere employment, it was incumbent on the plaintiff, before he could recover in this case, strictly to prove that he was an occupant of the office de jure and not merely de facto, and that this he failed to do. He did not show by the proof offered, it is said, either that the office filled by him had been legally created, or that he had been legally appointed thereto. Moreover, various parts of the documentary proof that was offered and admitted in evidence, it is insisted, were improperly admitted. It is claimed that they wanted the necessary authentication. It is further urged that the judgment is excessive by the amount of one month’s pay.

This last objection to the judgment is plainly based on a misapprehension or misconception. There is no denial that the pay for thirty-one months was withheld from Bullís, nor that the salary attached to the office was at the rate of $91.66 a month. Computation shows that even if, as contended by the appellant, one month’s pay was in any event, through an authorized suspension of thirty days, forfeited by appellee, which it is not necessary for us to decide, the finding is below the salary unpaid him.

Nor do we think that the position in regard to the dismissal or continuance of the suit taken by the appellant is tenable.

The charges of 1903 against Bullís were carried to their full conclusion by the Civil Service Commission, and the entire proceedings, including the order of discharge, were quashed and held for naught by the Superior Court by a judgment afterward affirmed by the Appellate and Supreme Courts. That ended those proceedings altogether. It does not matter what reason was given to justify the judgment quashing the return and proceedings by any one of the three courts. -The judgment was a final one as to those proceedings, and was so regarded by the city and the police department, for the appellant was put back at his work on June 1, 1906, and an entirely new proceeding was begun ne'arly two months afterward by filing with the Civil Service Commissioners and serving him with a new document signed by the new Chief of Police, setting forth the charges preferred against him. This suit had then been pending for a month. We think the trial court was right in holding the whole matter immaterial, excluding from evidence the record of the pending proceedings before the Civil Service Commission and denying the motions recited.

We do not regard the rulings on the admission of various pieces of documentary evidence offered by the plaintiff erroneous. Specific objection in argument in tiffs court is made that one ordinance introduced from the “Council Proceedings,” with a title page and heading, “Published by authority of the City Council of the City of Chicago—Official Beport,” with a facsimile of the city clerk’s signature, was not properly authenticated, and that section 65 of the Cities and Villages Act, which provides that when ordinances are printed in book or pamphlet form,, purporting to be published by authority of the board of trustees or the city council, such book or pamphlet shall'be received as evidence of the passage and legal publication of such ordinances as of the date mentioned in such book or pamphlet in all courts and places without further proof, does not apply; and counsel state that specific objection was made to the same effect in the court below. We do not so read the record. Before this ordinance was offered, other ordinances, which were finally ruled out, offered from “council proceedings” which did not show or recite that they were published by the authority of the city council, had been objected to by counsel for the city (for example, see Bee. pages 37 and 38), but it seems to us from the record, the transcript of which is, however, obscurely and carelessly made up, with many evident errors in stenographic transcription, that counsel had admitted that where the pamphlet or report contained the heading, “Published by authority of the City Council of Chicago,” it was admissible. (Bee. page 40.) In this condition of the objections this colloquy between counsel and court occurred:

“Mr. Cash (Counsel for plaintiff) : "Now, I offer ordinance passed January 20, 1902, Council proceedings 1901-1902, p. 1877, classifying patrolmen. I offer the title page of that book and the heading, ‘Published by Authority of the City Council of the City of Chicago, Official Beport, and the Clerk’s signature—■ fac simile of the Clerk’s signature.
The Court: Let me see that ordinance. Is there any objection to this 1
Mr. Sullivan (counsel for defendant): The same objection. If it is ordered published as counsel states,-—•
The Court: I know, but is there any objection to it now?
Mr. 'Sullivan: No.
The Court: Well it will be received. No objection. ’ ’

Despite the ambiguity of this, it seems to us that the whole tenor of the dialogue leading up to this shows that it means that as to this ordinance no objection was made after counsel for the city had assured himself that the pamphlet did purport .to be published by authority of the city council, and that not only was no specific objection made to its admission, but that all objection was waived, although the next page contains an exception to the action of the court in admitting it. But in any event we think it fell under the provision of section 65 of the City and Village Act mentioned, and was properly admitted. And so also with the Appropriation Ordinances of February 8, 1901, March 5, 1903, March 4, 1904, February 18, 1905, and March 26, 1905, all of which were introduced from pamphlets purporting on their face to be published by authority of the city council. We think they were properly proven.

We see no reason why, because the pamphlets containing other council proceedings besides the ordinances themselves, the ordinances themselves, which they contain, with the preface, “The following is the ordinance as passed,” are not in the language of the statute, “printed in book and pamphlet form and purported to be published by authority of the city council.”

The objections, moreover, made to them were general and not specific.

We think, therefore, the questions in the case left to be decided by us are not complicated by objections to incidental procedure in the court below, but are to be solved from the record as it stands, and are the primary and substantial ones indicated by the first errors assigned: First, does the proof show that the office filled by the appellee has been legally created? and second, does it show that he was legally appointed thereto % If these are answered in the affirmative, his right to the salary follows, and the ruling of the court that evidence of the appellee’s earning or having the opportunity or capacity to' earn during his enforced separation from his duties as a policeman, compensation for services rendered other parties, is immaterial. City of Chicago v. Luthardt, 191 Ill. 516, and cases therein cited, especially Andrews v. Portland, 79 Maine, 484.

That the distinction between an office and a mere employment is exactly this, so far as the right to compensation goes, is well settled and is practically conceded by counsel, who, however, insist that the position of a police patrolman is an employment and not an office. The contrary, we think, is the settled law. Chicago v. Luthardt, supra. Persons appointed police officers by a municipal corporation in any form, and especially under a law prescribing their tenure of office and protecting them from discharge, are not agents, servants or employes of the corporation. They are appointed by the corporation in obedience to the statute law of the state, to perform a public service not peculiarly local or corporate. The selection by the municipality has been deemed expedient by the legislature in the distribution of the powers of the government. They are not to be regarded as servants or agents of the corporation, but as public or state officers, with such powers and duties as the statute confers upon them. Dillon on Municipal Corporations, secs. 974 and 975, and cases therein cited. To hold otherwise would be to make the city responsible for the unlawful or negligent acts of its policemen—a very undesirable result for the appellant in this case.

But the appellant is right in its contention that to entitle an officer, unlawfully removed or inhibited from his duties, to the emoluments which appertain to the office as an office, he must prove his legal right to the office—in other words, that he is an officer de jure and not merely de facto. That proposition is not only consistent with sound logic and right reason, but it has been often and recently expressly decided by our Supreme Court. Stott v. The City of Chicago, 205 Ill. 281; People ex rel. Kisselberg v. City of Chicago, 210 Ill. 479; McNeill v. City of Chicago, 212 Ill. 481; Moon v. Mayor, 214 Ill. 40; Kenneally v. City of Chicago, 220 Ill. 485. The court decided in these cases that to entitle one to recover the emoluments pertaining to an office as appurtenant to that office, and not as compensation for services actually performed, he must prove that the office existed and that he was lawfully appointed to it.

It also decided that in the cases before them one or the other of these matters necessary to the plaintiff’s recovery had not been proven. But it did not, we think, intend in any of the cases to decide that there were no police officers de jure in the city of Chicago, nor that it was impossible to so plead and to so prove the case of one who was a de jure officer that the right to his official emoluments would be sustained. Nor do we think, despite an incidental remark in the Moon case (supra), that “as explained in Stott v. City of Chicago, the office of policeman is not created by statute, but by municipal ordinances,” it intended to foreclose the contention in subsequent cases where “allegata and probata” were complete and in proper shape, that by statutes relating to the city of Chicago and ordinances in pursuance of them, the office was created.

In the present case we cannot see where the plaintiff failed in his proof. He began by calling attention to the act of February 13, 1863, entitled “An act to reduce the charter of the city of Chicago and the several acts amendatory thereof into one act and to revise the same. ’ ’

Section 1 of chapter II of that act provides that the “officers of the corporation,” other than the mayor and aldermen, shall be “a clerk, a comptroller, a board of public works” * * * (many other named officers) “and as many bridge tenders, firemen, * * * policemen, * * * and such other officers and agents as may be provided for by this Act or the common council may from time to time direct. ’ ’

Chapter X of the act treats of the “Police Department of the City of Chicago.” The first section of that chapter establishes an executivedepartment of the municipal government of Chicago, to be known as the Board of Police, and provides that the board shall consist of three commissioners and the mayor. The fourth section provides that said board shall assume and exercise the entire control of the police force of said city, and shall possess full power and authority over the police organization, appointments and discipline within said city. The fifth section defines the duties of the board of police in preserving the public peace; and the sixth section is:

“The duties of the police force shall be executed under' the direction and control of said board and according to rules and regulations which it is hereby authorized to pass from time to time for the more proper government and discipline of its subordinate officers and the police force of said city. The said police force shall consist of a superintendent of police, three captains of police, six sergeants, ninety police patrolmen, and as many more police patrolmen, sergeants and deputy superintendents as may be authorized by the common council on the application of the board. The said offices hereby created shall be severally filled by appointment in the mode prescribed by this Act, and each person so-appointed shall hold office only during such time as he shall faithfully observe and execute all the rules and regulation of the said Board, the laws of the state and the ordinances of the city.”

February 16, 3865, an act was passed by the legislature, entitled “An Act to amend an Act entitled An Act to reduce the Charter of the City of Chicago, etc., approved February 13, 1863.” Section 15 of that act reads:

■ “The duties of the police force shall be executed under the direction and control of said board and according to the rules and regulations which it is hereby authorized to pass, from time to time, for the more proper government and discipline of its subordinate officers and the police force of said City. The said force shall consist of a general superintendent of police, one deputy superintendent of police, three captains of police, sergeants of police not exceeding twelve, and as many police patrolmen not exceeding two hundred as may be authorized by the Common Council on the application of the board of police commissioners, and each patrolman so appointed shall hold office only during such time as he shall faithfully observe and execute all the rules and regulations of said board, the laws of the State and the ordinances of the City; Provided, that for incompetency, neglect of duty, or other sufficient cause, the said board may at any time remove the superintendent and deputy Superintendent of police or the fire marshal and assistant marshals.”

It will be observed that with the exception of adding a deputy superintendent and increasing the sergeants to a possible twelve and limiting the patrolmen to a possible two hundred, the phraseology of this section 15 of the Act of 1865 does not materially differ from that of section 6 of chapter 10 of the Act of 1863. On the apparent ground that it covered fully the same subject, section 20 of the later act repeals, with other sections of the former act, section 6 of chapter 10. It is claimed by the appellant that because the words, “The offices hereby created,” are not found in the later act, it is shown that the legislature intended by the later act to reduce or alter the position of a patrolman from an “office,” if it had been so declared by the former act, to a mere employment. We do not assent to this. The legislature in its first act did create an office—as an office is defined in law;.it made its intention to do so cumulatively clear by incidentally alluding to it as an office then created. In the later act, which practically re-enacted the former act, with an increase in the number both of the classes and individuals in the police department, it adopted everything material in the former act but those numbers, and the formal repeal of the superseded act in no way detracted from the significance of the fact that in first describing the positions the legislature spoke of them as “offices.” Indeed, where there is apparent no conflict or intention to supersede, a re-enactment of an earlier statute has been held a continuance, not a repeal, of the latter, even though the later act expressly repeals the earlier. Endlich on Interpretation of Statutes, sec. 490.

The next act of the legislature relating to the police force of Chicago was an act of March 9, 1867, entitled “An Act supplementary to an Act to reduce the Charter, etc., approved February 13, 1867, and the several amendments thereto.” The provisions affecting the question here are these:

“Chapter 3, sections 1 and 2. The Board of Police, in their annual estimate of police expenses, made to the city comptroller; shall, if in their judgment the public weal require it, recommend to the Common Council such additional police patrolmen, and also such additional number of sergeants, not exceeding twenty, as may be necessary.
“The Common Council may, on such recommendation of said board, provide by ordinance for such increase of the patrol force; Provided, however, it shall require three-fourths of all the Aldermen elected to pass such ordinance. Such vote to be taken by ayes and nays and entered on the records of the Council.”

In this act the legislature committed to the city council the determination of the number of occupants, without limit, of the office of “police patrolman,” theretofore created by statute.

April 10, 1872, the legislature passed, and on April 23, 1875, the city of Chicago by election adopted, “An Act to provide for the incorporation of Cities and Villages.”

We think that this act as passed and adopted by the electors of Chicago recognized the existence of the police officers of Chicago previously provided for by statute. Certain officers, it is declared by section 1 of article 6 of that act, shall be elected by the - voters. Section 3 of said article provides that all officers, except where otherwise provided, shall be appointed by the mayor, by and with the advice and consent of the council. The act provides (section 11, chapter 1) that all ordinances in force when a city shall organize under the act shall continue in force, and that the organization shall not be construed to effect a change in the legal identity of- such a city. It gives to the city council the right to regulate “the police” of the city and to prescribe the duties and powers of “policemen.” (Items 66 and 68 of section 1, article 5.) It says that “policemen,” among others, shall be conservators of the peace, and then gives the powers of “all officers created conservators of the peace by this Act.”

It would seem that in Sheridan v. Colvin, 78 Ill. 237, the Supreme Court recognized the power of the council to vest the appointment of policemen in the head of the department, then the city marshal, even under this Act of 1872. But in any event, by the act to regulate the civil service of cities, passed March 20, 1895, and shortly afterward adopted by Chicago, the method of appointment provided for by the City and Village Act, if that required appointment by the mayor, was changed, for it was in the Civil Service Act provided (section 3) that the Civil Service Commissioners should - classify all the offices and places of employment in the city, and (section 10) that the head of the department or office in which a classified position was to be filled should fill such place by the appointment of the person certified to him by the commissioners therefor. •

There was then in existence an ordinance of the city (which was introduced in evidence), passed June 28, 1875, creating an executive department of the municipal government of said city, to be known as the police department, and providing that the force should consist of one general superintendent of police, one deputy superintendent of police, four captains of police, twenty sergeants and the police patrolmen then in the employ of the city, which might be increased or decreased in number from time to 'time. The ordinance abolished the Board of Police, and was upheld as valid in Sheridan v. Colvin, supra.

The city marshal was made head of the department of police by that ordinance, as it would appear from the opinion in Sheridan v. Colvin, supra. That section, however, is not in evidence herein. The superintendent of police was expressly named and declared to be the head of the department in a subsequent ordinance. Revised Code of Chicago, as passed April 8, 1897, sec. 1478.

By various acts the legislature has, since the Act of February 13, 1863, before cited, recognized the state character of the office of “policemen in cities” (June 14, 1883), giving them special powers (May 33, 3887) outside of their own city, specifying necessary qualifications for “special policemen” (June 39, 1893), etc.

We think the statutes of the state have created, therefore, the office of policeman or police patrolman in the city of Chicago and recognized it since as so created. But however that may be, the operation of the statutes and the ordinances of the city of Chicago introduced here, together, have certainly had the effect of creating the office, and the ordinances and the action of the Civil Service Commission and of the superintendent of police have placed therein the plaintiff with a tenure of office which has not been interfered with except by the erroneous and canceled action of the Civil Service Commission.

The statute of March 9, 1867, hereinbefore quoted, allowed the common council to increase the number of patrolmen, which had been by the Act of February 16, 1865, limited to 200. By ordinance of May 3, 1867, it did increase the number to 250; on August 23, 1869, to 325; on August 15, 1870, to 400, and from time to time thereafter, as the city grew, to a greater number.

In 1895 the Civil Service Act came into effect. Under it the commissioners placed the “Police Service” under Class A, ‘ ‘ Official Services, ’ ’ as distinguished from Classes B and C of “Skilled Labor Service” and “Labor Service,” respectively, and under the classification placed 2,504 patrolmen. Under that act also, in 1898, Walter Bullis was certified by the commission to the superintendent as eligible, and sworn in as a first class patrolman, in pursuance of said certification, reported back to the commission as appointed and sworn in by the superintendent of police, and continued to serve as patrolman, except for his unauthorized separation from his duties, until this suit was brought.

It is shown by the record that on February 8, 1901, the city council appropriated for the salaries of 2,500 patrolmen and that on January 5, 1903, by a vote of sixty-six to one it passed the following ordinance or order—for we do not agree with the contention of the defendant that this order differed from an ordinance:

“Ordered: That the superintendent of police be and he is hereby authorized to increase the number of police officers on the police force by filling vacancies wherever they exist and are necessary, the total number of officers on the force, however, after such increase is made, not to exceed, the number authorized to be appointed under the appropriation budget of 1901.”

In 1903 the appropriation was made for 2,380 patrolmen; in 1904 for 2,306 patrolmen; in 1905 for 2,278; in 1906 for 2,196; while it is agreed that there were in fact in 1905 only 2,196 in service, and in 1906, 2,166.

We think the deduction can be made clearly from the evidence that in the years for which the plaintiff sues for the salary belonging to his office, he was de jure an officer and entitled to it, and that it was appropriated for him but not paid to him by the city of Chicago. Therefore the judgment of the Superior Court is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Bernhard Gerhards, Administrator, v. Chicago Junction Railway Company.
    Gen. No. 13,549.

      Negligence—what does not constitute. Held, under the evidence in this case, that it was not negligence to “kick” a railroad car from a switching train, and also that it was not negligence to conduct the affairs of a railroad yard in the usual, regular and practicable way of doing railroad work.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed January 13, 1908.
    Statement by the Court. This appeal was taken from a judgment of nil capiat and for costs by the Circuit Court of Cook county against the plaintiff (the appellant here) in an action therein brought by him against the Chicago Junction Railway Company (the appellee here), for causing by its negligence the death of his intestate. The judgment was rendered on the verdict of a jury.
    There were, after the cause was brought, and before it finally went to the jury, some amendments in the pleadings not necessary to mention. When the case was finally submitted to the jury, the declaration consisted of five counts. The first charged the negligence of the defendant to consist in shoving or switching a freight car of such size and dimensions that it extended beyond the track on which it was being switched such a distance that when it reached the point opposite where a car on another track, under which Gerhards, the plaintiff’s intestate, was working, was located, “it would be likely to strike the blocks or jacks upon which said car in its raised position was resting, without in any manner warning or notifying Gerhards- of its likelihood so to do. By reason whereof, when the-said car so being switched by the defendant had reached a point opposite the car under which said Gerhards was working, it struck the jacks or blocks with great force, knocking the car from its raised position down to and upon the said Gerhards, killing him.”
    The second count alleged that the defendant moved and operated a train of cars along a railroad track near the car under which Gerhards was working, and detached and uncoupled one of the cars from the train of cars so switched, and switched the same away from said train, without any guard or control over it, and by reason thereof the said car struck a certain “brake-beam” lying along said track, and shoved the same against the jacks or blocks supporting the car under which Gerhards was working, and thereby knocked that car down upon Gerhards and killed him.
    The third count avers generally the negligent moving and operation of a car along a railroad track adjacent to the car beneath which Gerhards was working, by reason whereof the car struck the jacks or blocks supporting the said car Gerhards was working under.
    The fourth count says the defendant carelessly and negligently failed to observe the brakebeam, and carelessly and negligently failed to adopt any precautions, to avoid striking the same, and by reason thereof one of the cars it was moving along the railroad track struck said brakebeam and caused the same to strike the jacks or blocks supporting the car under which Gerhards was working.
    The fifth count charges the defendant with carelessly and negligently suffering and permitting a certain brakebeam to be and remain in such close proximity to the railroad track on which it was switching cars that whilst the defendant was engaged in moving its engine and cars a certain car struck said brakebeam and threw the same over and against the jacks or blocks supporting the car under which Gerhards was working.
    At the trial evidence was offered for the plaintiff, and at its conclusion the defendant moved for a peremptory instruction in its favor, which was denied. The defendant offered no evidence. The jury returned a verdict for the defendant.
    A motion for a new trial was denied and judgment given on the verdict. This appeal followed. In this court it is assigned as error: That the court erred in giving and refusing instructions; that it erred in its rulings on evidence and in overruling the motion for a new trial.
    Edmund S. Cummings, for appellant.
    Winston, Payne & Strawn, for appellee; John Barton Payne and John D. Black, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

The place where the death of plaintiff’s intestate occurred was on land between Forty-sixth and Forty-seventh streets and a block and a half west of Halsted street in Chicago. It was traversed by many railroad tracks running in a southerly and northerly direction and spreading out like a fan in the vicinity of Forty-seventh street. The land was in fact a switching yard. The appellee, the Chicago Junction Bailway Company, leased the tracks from the Union Stock Yard & Transit Company.

• A few of the tracks ran straight north and south. One of these tracks, not far from the center of the yard from east to west, is known in this record and in the argument before us as track No. 1. The Chicago Junction Bailway Company used it as a switching track for its railroad switching business at the Union Stock Yards.

The accident occurred October 21, 1902. Some time prior to that time the Chicago Junction Railway Company, by a verbal agreement, had leased all the tracks east of the track No. 1 to Armour & Co. for a repair and storage yard. Track No. 1 and the tracks west of it were not leased to Armour & Co. The tracks leased to Armour & Co. were kept in repair by the employes of the Chicago Junction Railway Company. The Chicago Junction Railway Company switched Armour’s cars in and out of these tracks leased to Armour & Co., and were paid a regular switching charge for so doing.

The appellant’s intestate, Bartholomaus Gerhards, was employed by Armour & Co. as a car repairer in this leased yard. On the day of.the accident he went to work with John Ritter and a man named Nolan,also car repairers, to repair one of Armour’s refrigerator cars that was standing on the track known in this case as track No. 2, which was the track immediately to the east of track No. 1, and was the most' westerly of the tracks leased to Armour. This refrigerator car was a short distance north of Forty-seventh street.

These three men had previously on that morning repaired a car on the track next east of No. 2, and at about nine o ’clock went to work on the car in question. Nobody else but they worked on it. They took out the trucks from the south end of the car and rolled them forward. To do this it is quite plain that the brakebeam hanging from the south end of the car, a heavy piece of timber with cast iron shoes and brake rods and couplings attached to it—the timber being a four by six or six and three-quarters and from six feet six inches to six feet eight inches long—had to be removed from the car. The plaintiff’s witness Ritter swears to this—which is self-evident—although he says at another time that he does not know whether the brakebeam was taken off before the trucks were taken out or not, as he did not help to take it off. As we have said, however, it is plain that it was so taken off, and Bitter testified that it was at some time taken off, and that as he did not help take it off, it must have been Gerhards and Nolan who did it. He testifies also that he saw it after it was taken off and it had been laid between track No. 1 and No. 2. In order to get the trucks out it was also necessary to jack up the car, and two jack-screws had been put under each south corner of the car when the accident happened. The wheels of the north end of the car seem to have been blocked so that they could not move. At about half past ten or eleven o’clock Bitter and Gerhards were under the car at work, Bitter under the middle of the car and Gerhards under the south end. Nolan was between tracks No. 1 and No. 2, north of where the brakebeam had been laid. There were other people employed in repairing the cars about there, but only one other eye-witness of the accident, apparently—a man named Shebak, who was working on the trucks of a car standing to the north of the car under which Gerhards was working and on the same track. Shebak saw the accident and at the trial of this cause detailed the manner of it. There had been switching going on all the morning on track No. 1. At about half past ten or eleven a “big furniture car” was “kicked” north by a switching train on track No. 1. There was nobody on the “kicked” car. When the witness Shebak saw it, it was about fifty feet south of Gerhards ’ car, and about two hundred or three hundred feet north of Forty-seventh street, and running three or. four miles an hour. Shebak saw the switching train after kicking the car north run south again to the other side of Forty-seventh street, where switch tracks from the east ran into track No. 1.

The furniture car, as it came along track No. 1, caught by some one of its parts—its sill, step or truck, the witness thought—a brake lever attached to the brakebeam that was lying between tracks No. 1 and No. 2. This brake lever was a piece of iron from two to three feet long, an inch thick and three inches wide, and was projecting from the brakebeam towards track No. 1.

The effect of the collision was to drag the brakebeam along a plank which lay parallel with the tracks and between them, until it struck the blocks on which the jack-screws at the south end of Gerhards’ car were standing and knocked -them out from under the jacks, which fell and let the south end of the car down, crushing and killing Gerhards. Bitter was able to crawl out from under the car nearly uninjured.

The space from the center of track No. 1 to the center of track No. 2 was. twelve feet and nine inches, and that between the nearest rails of the two tracks was seven feet and eight inches. Both witnesses for the plaintiff, Shebak and Bitter, testify that switching was constantly going on on track No. 1. Bitter says there was switching on track No. 1 constantly, “off and on, just as they required cars in there,” from seven in the morning until six in the evening, and Shebak says they were switching cars on that track “pretty nearly all day”—“every few minutes.”

We are unable to see in this narrative any evidence of negligence on the part of the defendant. It was not negligence to “kick’'’ one of its own cars from a switching train onto its own track; nor was it rendered negligence by the fact there was no one on the car. It may be said to be within the knowledge of everyone who ever saw a railroad yard that this is a usual, regular and often the only practicable way of doing the railroad’s work.

There is no evidence of negligence on the part of the railroad in its not observing the brakebeam and its position, or in permitting it to be there, for there is no evidence even how long it had been there or that the employes of the railroad had any opportunity to see it, while there is evidence that it was placed where it lay by Gerhards himself, or his fellow-servant Nolan, within a comparatively short time before the accident.

In the face of this absence ,of proof that the defendant was negligent, the plaintiff could not in any event recover, and this renders unnecessary a discussion of the objections of the appellant to the rulings of the court below, except perhaps as to the admission of Bitter’s answer that it must have been Gerhards and Nolan who took the brakebeam off the car, because he, Bitter, did not help. We cannot see that this answer was prejudicial. It was preceded and followed by statements which clearly showed the jury that it was a conclusion of the witness, which did not exclude the possible hypothesis that Nolan might have, alone and unaided, laid the brakebeam near track No. 1. The conclusion, however, in the sense in which the jury must have understood it, was a legitimate one from the other facts stated by witness. The brakebeam was a large and heavy appliance and was so described that the jury as well as Bitter could form an opinion as to the ability, or likelihood of one man’s handling it after it was removed. But in any event, we think it makes no difference whether Gerhards and Nolan or Nolan alone placed the brakebeam in its dangerous position. Counsel say if Nolan did it alone, then Gerhards could not be charged with contributory negligence, and that it would be the combined negligence of Nolan and the defendant which caused the death of Gerhards, and that for this defendant would be liable.

The vice in this reasoning is that there is in it no ground for the assertion that in such ease there was any negligence of the defendant combining with the negligence of Nolan to. cause the accident. The negligence would be in such case solely the negligence of Nolan, as we view the evidence. The question is not whether the defendant has proved contributory negligence, but whether the plaintiff has proved any negligence on the part of the defendant.

As to the rejection of evidence offered by the plaintiff that employes of Armour & Go. sometimes worked on cars west of track No. 1 and crossed that track to get to them, we are unable to" see the relevancy or materiality of that evidence in this controversy any better than did the trial court. The accident did not occur through any want of care in the observation of men crossing the tracks, but from an entirely different cause.

Our views being as indicated in regard to the merits of the case, we do not feel called on to discuss the instructions given and refused. Even if they were not accurate, their inaccuracy would not have been ground for reversal under the circumstances of this ease. The Supreme Court said in Waggoner v. Wabash Railroad Company, 185 Ill. 154: “Being satisfied that no other verdict than that which was returned could have been properly rendered, we would not reverse the'judgment below for error in the giving of instructions.”

We do not mean, however, to imply that we find the instructions as applied to the evidence in the cause obnoxious to the objections urged against them by the appellant.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    City of Chicago v. Richard F. Conway.
    Gen. No. 13,554.
    1. Judgment—what obviates error in rendering, in excess of the ad damnum. Any error in rendering judgment in excess of the amount fixed by the ad damnum is obviated by a stipulation under which the ease was tried to the effect that the plaintiff might have the same benefit of all claims and causes of action, appearing from the statement- of facts, that he might have, if said causes of action were specially pleaded in appropriate special counts.
    2. Local impbovements—to what extent municipality liable to contractor. A municipality as a trustee and bailee of a special assessment fund is directly liable to a contractor who has constructed the improvement for which the fund was collected to the amount of the obligations held by him against the municipality, if the fund in the hands of such municipality, out of which said obligations are by their terms to be paid, is actually in its hands or is constructively, in the purview of the law, so in its hands.
    3. Local improvements—what not collection by municipality of amount assessed. The amount assessed against property for a local improvement is not deemed to have been collected where such property becomes delinquent and, in default of other bidders, is bought In by the municipality—-the contract between the municipality and the contractor containing a clause as follows:
    “In case the city of Chicago should become the purchaser of any special assessment certificate at any sale for the delinquent special assessments in default of other bidders, such purchase shall not be deemed a collection of such special assessment, and no act of the city done or suffered shall be construed as a collection of any special assessment or part thereof, until the money due -thereon shall be actually paid into the city treasury.”
    4. Local improvements—when illegal abatements upon, chargeable against municipality in favor of contractor. Abatements by the municipality, although made in good faith, if upon an erroneous view of the law, are illegal, and the amount thus paid out is chargeable against the municipality, and in favor of the contractor, notwithstanding a clause in the contract between such municipality and contractor in words as follows:
    “No act of the city done or suffered shall be construed as a collection of any special assessment or part thereof until money due thereon shall be actually paid into the city treasury.”
    5. Local improvements—when municipality chargeable with interest upon fund subject to claim of contractor. The municipality is chargeable with interest in favor of a contractor where (1) there is an express agreement, (2) money has been wrongfully obtained, and (3) money is illegally withheld.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed on remittitur.

    Opinion filed January 13, 1908.
    January 13, 1908, order of January 13, 1908, vacated by consent. January 20, 1908, reversed and judgment here for $18,475 in favor of appellee.
    George A. Mason and Lyman, Lyman & O’Connor, for appellant; Edward J. Brundage, Corporation Counsel, of connsel.
    Tolman, Redfield & Sexton, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

The appellee recovered judgment in the Circuit Court of Cook county February 4, 1907, against the appellant for $20,176.17. This judgment was entered on a finding by the trial judge, by whom the cause was heard without a jury on a stipulation of facts entered into by the parties. The essential facts shown in this stipulation will appear in this opinion. The suit was in assumpsit and the declaration on the common counts, to which the general issue of non-assumpsit was pleaded, but by the stipulation on which the ease was tried it was agreed that under the common-counts and general issue each of the parties to the cause might have the same benefit and advantage of all claims, causes of action and defenses appearing from the statement of facts as though said causes of action and defenses were specially pleaded in appropriate special counts and special pleas in an action of assumpsit. This agreement we think eliminates from the case the alleged error of the court in rendering judgment for an amount exceeding the ad damnum. It is not necessary to pass on the question whether the order giving the plaintiff leave to amend the declaration and the additional record filed in this court showing an amended declaration are sufficient in themselves to obviate the objection made to the judgment by the defendant in this regard, or on the question whether the assignments of error made by the defendant are sufficient to cover it. The stipulation is that the plaintiff may have the same benefit of all claims and causes of action appearing from the statement of facts that he might have if said causes of action were specially pleaded in appropriate special counts. An “appropriate special count” which covered all the claims or causes of action which the plaintiff might have, would conclude with an ad damnum sufficiently large to cover them. It is by no means true that a special and individual count is necessarily without a conclusion of an ad damnum. On the contrary, each count must state a cause of action in itself and logically may and should be completed by the ad damnum clause. It is for convenience and brevity that the ad damnum clause is generally placed only at the end of a declaration of several counts and made to refer back to each of them. This technical objection, therefore, to the judgment appealed from, may be disregarded.

The material facts of the controversy are these: The plaintiff is the owner of all the unpaid and outstanding vouchers and special assessment bonds issued as hereinafter set forth on account of a certain improvement ordered by the city council of Chicago on June 16, 1896, under the special assessment laws then in force. The improvement was for the paving of a system of streets known as the St. Lawrence avenue system. The special assessment in question was confirmed by the County Court of Cook county as Docket No. 21,165. The plaintiff was the contractor for the construction of said improvement, and the vouchers provided for by the law for a portion of the contract price and the bonds for the remainder were all delivered to him. Their form and tenor will be hereafter described. The larger portion of them has been paid, but it is stipulated that the amount due on said outstanding vouchers and bonds, for interest and principal, according to the terms thereof, on January 31, .1907, after crediting all payments made on account of them, was $20,176.17, which is the amount of the judgment in this cause rendered February 4, 1907. This' statement, however, is subject to a qualification hereinafter noted.

The suit was not brought nor did the judgment go against the city on the ground that the vouchers and bonds were, when issued, the absolute obligations of the city. It is conceded by the plaintiff that they were not.

The law in force concerning them when they were issued was this: The aggregate amount of any assessment against property and each individual assessment could be by ordinance (and was in this case) divided into seven installments equal in amount, except that all fractional amounts were to be added to the first installment, so as to leave the remaining installments of the aggregate equal in amount and each a multiple of $100. All installments except the first bore interest at the rate of six per cent, per annum. For the purpose of anticipating the collection of the second and subsequent installments, the city might issue bonds (as it did in this case) in sums of any multiple of $100, payable out of said installments and bearing interest not to exceed six per cent, per annum, payable annually.

The form of the bond should be as is shown in Exhibit B attached to the stipulation of facts in this case.

“United States oe America.
State oe Illinois.
Bond
County oe Cook.
Series No. 4.
No. E. 1494
City oe Chicago.
IMPROVEMENT BOND.

The City of Chicago, in Cook County, Illinois, for value received, promises to pay to bearer on the thirty-first of December, A. D. 1901, the sum of One Thousand Dollars with interest thereon from date hereof at the rate of six per centum per annum, payable annually on presentation- of the coupons hereto annexed. Both principal and interest of this bond are payable at the office of the Treasurer of said City of Chicago.

This bond is issued to anticipate the collection of a part of the fifth instalment of special assessment No. 22344, levied- for the purpose of improving St. Lawrence Avenue System, which said instalment bears interest from the 23rd day of August, A. D. 1896, and this bond and the interest thereon are payable solely out of said instalment when collected.

Dated this 20th day of July, A. D. 1897.
Carter H. Harrison, Mayor,
L. E. McG-ann,
Commissioner of Public Works.
Countersigned:
B. A. Waller,
City Comptroller.
Attested:
Wm. Loeefler,
City Clerk. ’ ’

The bonds, it was provided by law, might have coupons attached to . represent the interest to accrue thereon, and in the present case the form of the coupon is given by the stipulation by the following example:

“The City of Chicago
Coupon No. E. 1238
$60.00.
Promises to pay bearer at the office of the City Treasurer in said City on the 31st day of December, 1902, the sum of sixty dollars, being the annual interest on improvement bond No. E. 1238, Series No. 6, dated May 17, 1897, issued in anticipation of the collection of the seventh deferred instalment of special assessment No. 22344 named in said bond, said sum to be paid solely out of the fund levied for such purpose when collected.
B. A. Waller,
City Comptroller.”

The payment for any improvement might be made in these bonds, and the first installment of the assessment levied for it was to be applied in this manner. From the amount of the first payment when it should be collected, should first be paid all the costs of making the assessment, including court costs. The remainder of said payment might then be paid to the person entitled thereto on the contract for said work; if not collected when payments fell due, vouchers therefor might be issued payable out of said first installment when collected. Said voucher was to bear no interest.

There were these two following provisions also in the law which came into force July 1, 1897.:

“No person or persons or bodies corporate taking any contracts from the city * * * and agreeing to be paid out of special assessments” (as was the case of the plaintiff here) * * * shall have any claim or lien upon the city * * * in any event except from the collection of special assessments * * * made or to be made for the work collected for, but the municipality shall cause collections and payments to be made with all reasonable diligence. And in such case, if it shall appear that such assessment * * * cannot be levied or collected, the municipality shall not nevertheless be in any way liable to such contractor or contractors in case of failure to collect the same, but shall so far as it can legally do so, with all reasonable diligence, cause a valid special assessment or assessments * * * to be levied and collected to defray the cost of said work until all contractors shall be fully paid, and any contractor shall be entitled to summary relief of mandamus or injunction to enforce the provisions hereof.”
“No person or persons accepting the vouchers or bonds' as provided herein shall have any claim or lien upon the city * * * in any event for the payment of such vouchers or bonds or the interest thereon, except from the collections of the installment for which said vouchers or bonds are issued, but the municipality _ shall not nevertheless be in any way liable to the holders of said vouchers or bonds in case of failure to collect the same, but shall with all reasonable diligence, so far as it can legally do so", cause a valid special assessment or assessments * * * to be levied and-collected to pay said bonds and vouchers until all bonds and vouchers shall be fully paid. Any holder of vouchers or bonds or their assigns shall be entitled to summary relief by way of mandamus or injunction to enforce the provisions hereof.”

"While these exact words were inserted first in an Act of June 14, 1897, which practically codified and made consistent former legislation on the subject, yet the provisions in the former acts of April 29, 1887, June 15, 1891, and June 17, 1893, were to the same effect and placed upon the city of Chicago no greater and no less obligations in regard to the vouchers and, bonds in question. So that whether they are governed in these respects by the law in force when the assessment was ordered and confirmed, or by that when "they were issued, makes no difference to the questions raised here.

The instruments "themselves are not the obligations of the city, but rather of the property owners, who by law are held to pay the assessment which constitutes the fund out of which they are to be paid and on which they are a charge. But the city has obligations connected with them to their owners and holders. By a violation of those obligations it may undoubtedly make itself directly liable to such holders. It is also a trustee and bailee of the fund so raised, and by a violation of its duties in that capacity may render itself directly liable to the holders of the instruments.

It is on the ground of such a violation of its obligations and duties that the present suit was brought and that the judgment was obtained below.

The claim of the plaintiff is this: The city council duly awarded to appellee as the lowest and best bidder the contract to do the work in this public improvement for $104,162.65, payable out of the proceeds of a special assessment. The appellee completed the improvement to the satisfaction of the city and received vouchers and bonds for the amount of the contract to the principal sum of $104,162.65. The city ordered the special assessment and received on it, according to its own computations, $136,545.53, of which $32,382.88 was interest on the principal of the various installments. It paid at various times to the appellee, as shown by the summary from the comptroller’s books attached to the stipulation of facts, on account of the principal, $101,697.63. Of this amount, as the stipulation in its body, in connection with the summary, shows, $44,837.07 was paid for the retirement in full (apparently with $400 of coupons—at all events there is a discrepancy of $400) of instruments aggregating in the principal $44,437.07, and the balance of $56,-860.56 was paid at various times on account of the principal of outstanding vouchers and bonds now in the hands of the plaintiff, as more particularly hereafter detailed.

Besides the $101,697.63 of principal thus paid to the plaintiff, the summary from the comptroller’s books shows the following charges, which we suppose refer to payments to the contractor of interest on the instruments which were retired in full and cancelled:

Interest, $18,113.42.
Interest Warrant B, 141.27
$18,254.69.

This, added to $101,697.63, would give $119,952.32, paid to the contractor for principal and interest.

The further charg.es against the fund in the comptroller’s books are these, which will enter into the discussion of this case:

Cost,
$9,880.09,
Excess abatements and
Refunds,
5,251.18,
Tax certificates,
481.97.

The aggregate of these charges is $14,613.24, which, added to the sum paid to the contractor, makes $135,-565.56. Charged against the “Cash Receipts,” which the summary of the comptroller’s books credits to the fund, this amount leaves a balance on those books only of $979.97, which is all. that the appellant admits is due from it on the instruments held by the appellee, because all that is properly in its hands to pay. As hereinafter noted, however, it contends that if this is not all that it holds in the fund from which these instruments are payable, it is chargeable at worst with a much less amount than that claimed by appellee.

The instruments which are outstanding in the hands of the appellee are:

A voucher for $5,325, due July 24,1899;
Bonds to the principal amt. of 11,200, due Dec. 31,1900;
Bonds to the principal amt. of 12,000, due Dec. 31,1901;
Bonds to the principal amt. of 15,600, due Dec. 31,1902;
Bonds to the principal amt. of 15,600, due Dec. 31,1903.
Total, $59,725.
On this principal sum of $59,725 there has been paid at various dates shown in an exhibit attached to the stipulation of facts, between December 31,1903, and the beginning of this suit, $56,860.56, the last payment having been made on January 1,1905. This leaves due on the principal sum $2,865, and also on account of interest as claimed by appellee:
First: The interest coupons on the bonds, which were all outstanding on them Dec. 31,1903. These amounted on October 31, 1906, with the interest on them provided for by their terms (according to a computation stipulated to be correct), to....................... $6896.16.
Second: Interest accruing on the non-interest bearing voucher after its maturity on July 24, 1899, the partial payments being taken into account as reducing from time to time the principal sum on which interest is calculated.
This amounted (also according to the computation stipulated to be correct), October 31, 1906, to.................................... $1699.25.
Both these items of interest are, however, evidently calculated at 6 per cent, although neither coupons nor voucher specified any rate of interest before or after maturity—a matter hereafter to be further noted.
Third:' Interest accruing on the principal of the bonds after their maturity, and the consequent absence of coupons, taking into account the partial payments by which the principal was reduced. The' bonds bear interest at 6 per cent after date, and the interest is computed at that amount and stipulated to be correctly calculated. This amounted Oct.
31, 1906, to.................................................... $8417.91.
These items of principal and interest to Oct. 31,1906, make in the aggregate,—$19,878.32.
Upon this amount was calculated in the claim of the appellee and allowed by the Court in the judgment appealed from, interest at 6 per cent for the three months from Oct. 31, 1906, to Jan. 31,
1907, amounting to.................................... 297.85,
which makes the aggregate for which judgment was rendered on Feb. 4,1907, $20,176.17.

The stipulation of facts contains, indeed, as its eighth clause, the statement that: ‘ ‘ The amount now due upon said vouchers and bonds for interest and principal according to the terms thereof, after crediting thereon all payments made on account as aforesaid, is $20,-176.17.” This, however, taken in connection with the exhibits which are practically made a part of the stipulation, is subject to the facts noted above—that in reaching this amount interest has been calculated at six per cent, after maturity on a voucher and on coupons which name no rate, and that interest on interest at six per cent, has been charged from October 31, 1906, to January 31, 1907.

The stipulation of facts recites that “at the date of maturity of each of said vouchers, bonds and coupons, and again just prior to the bringing of this suit, the plaintiff demanded of the financial officers of the city that they pay said vouchers, coupons and bonds, but the city has failed and refused to pay the same or any part thereof.”

The grounds of this demand and of this suit are threefold and are connected respectively with the three charges heretofore noted as made against the fund involved for (a) “costs,” (b) “excess, abatements and refund,” (c) tax certificates.

In the dealings of the city with the fund which were the basis of each of these charges, it is claimed by the appellee that the city made itself, on more than one ground, directly liable for certain amounts to him as the holder of outstanding obligations against the fund.

He claims also that in each case the city was, not only at the time this suit was begun, liable to him for the amount of the various sums in the first instance improperly diverted from, or properly to be credited to said funds; but also (up to the amount due on the obligations held by him) for interest on those sums from the time they were so improperly diverted or withheld from said fund to the time the suit was brought. In other words, he claims that the fund which should be considered in the city’s hands liable for the payment of his obligations with interest as heretofore detailed should be increased from $979.97, shown by the comptroller’s books, by various additions of diverted sums and interest thereon, which diverted sums the city should, in the performance of its duties as trustee, have placed and left in said fund, but did not—to an amount computed by him at $22,166.77— a sum more than sufficient to answer the claim on the obligations made by him of $20,176.17.

We note here, however, that we feel ourselves at liberty, under the stipulation of facts and its exhibits attached, to revise and correct the computation of interest on each side of this account, to make them accord with our view of the rights involved.

We are of the opinion that the city, as trustee and bailee of this fund, is directly liable to the appellee up to the amount of the obligations held by him, if the fund in its hands out of which said obligations are by their terms to be paid is actually in its hands or is constructively in the purview of the law so in its hands. If the city ought in law, in consideration of its duties as trustee, bailee, agent, depositary, or otherwise, of the fund for the contractor and obligation holder, and of its neglect or violation of those duties, to be charged with certain sums which should belong to and go into that fund, then for those amounts, as well as for that admitted by it to be in its hands (up, of course, only to the sum of the obligations belonging to the contractor, correctly computed), we deem it answerable to said contractor in this action for money had and received—widened also as it is by the stipulation that the plaintiff may have the same benefit and advantage of all claims, causes of action and defenses appearing from the statement of facts as though said causes of action were specially pleaded in appropriate special counts in an action of assumpsit.

We shall take up each of the items of wrongful diversion or withholding alleged, therefore, and discuss what, if anything, should be added on account thereof to the $979.97 admitted now to be in the hands of the city belonging to the fund. But this we shall do, for convenience, in the inverse order of their previous mention.

It is claimed, as we have indicated, that the charge to the fund for “tax certificates” of $481.97 was unwarranted, and the amount should be added to the fund. We think this clearly an unfounded contention. It is argued by appellee, as we understand his contention, that inasmuch as the stipulation of facts recites that there were no bidders when certain lots, against which the assessment had been certified to the county treasurer for collection, were offered for sale, it is to be understood that there was no sale, but that the city canceled the assessment on the consideration simply of bookkeeping entries on the county collector’s and' on the city’s books, and that this did not relieve the city from the obligations it would have been under to the plaintiff had the warrants been collected as to these lots. We think this too technical and narrow a view of the matter. The contract of the city with the appellee itself provided:

“In case the city of Chicago should become the purchaser of any special assessment certificate at any sale for the delinquent special assessments in default of other bidders, such purchase shall not be deemed a collection of such special assessment, and no act of the city done or suffered shall be construed as a collection of any. special assessment or part thereof, until the money due thereon shall be actually paid into the city treasury.”

Any reasonable construction of this provision puts out of the question involved here anything relating to these tax certificates and the charge therefor, and it is unnecessary to inquire into the discrepancy between the “$902.39,” said in the body of the stipulation of facts to be represented by tax certificates and tax deeds, and the “$481.97” only, charged on the comptroller’s books against the gross receipts, which are made also to include this sum.

Another item claimed by the appellee to have been wrongfully charged to the fund is that which appears on the books of the comptroller under the titles, “Excess, Abatements and Refunds,” and amounts to $5,251.18.

The stipulation of facts as to this amount shows that “the officers and agents of the city of Chicago during the years 1896 and 1897” (the dates are not more definitely stated) “voluntarily made abatements to property owners of the amounts assessed against them under the following circumstances:

After the special assessment had been confirmed by the order and judgment of the County Court of Cook county, and the amount of the benefits and of the proportionate cost of the improvement to each particular lot fronting upon the said improvement had been ascertained and confirmed by the court, the city of Chicago, by its then officers, undertook to ascertain the actual expense of constructing' the pavement in front of each particular lot, and where it appeared that by reason of the physical condition of the property a less amount of filling and grading was necessary for one lot than for another, or for any reason the cost of the improvement in front of a particular lot was less than the amount assessed against it, the city of Chicago issued an abatement certificate to such property owner for the amount so ascertained and delivered the same to the county treasurer, to which officer the said assessment had then been certified for collection according to law, and directed him not to collect said amount from said property owner, but to credit the account of said property owner with the amount of said certificate mentioned as ‘paid by the city of Chicago,’ and directed him, after thus crediting said abatement certificates' and collecting the balance, to turn in said certificates to the city on final accounting of the collection as so much money collected. This was done after the contract for said improvement had been awarded and signed and while the improvement aforesaid was in process of construction and without any order of court or judicial proceeding to determine whether the amounts previously adjudicated by the court as the amounts of benefits and the proportionate costs of the improvement for each particular lot was excessive, and without any proceeding to charge to the other lot owners an equivalent amount.”

It is conceded, as we understand, that this action of the city was unwarranted and illegal, and inconsistent with the rule that special assessments cannot be lawfully levied on the basis of the cost per front foot of the improvement, but must be levied on the basis of the proportionate benefit which the property owner receives from the whole improvement, considered as a unit; but it is stipulated that “This action of the city was taken in good faith and without any fraud on the part of its officers and in compliance with a theory of the law then entertained by them that an assessment should be spread and collected on the front foot basis— that is to say, according to the actual cost of constructing the improvement in front of each particular lot.” The appellant claims that the principal amount in question, $5,251.18, was never actually received by the city, and relying on a strict construction of the last half of the clause in the contract hereinbefore recited, in discussing the tax certificates, viz.: “And no act of the city done or suffered shall be construed as a collection of any special assessment or part thereof until the money due thereon shall be actually paid into the city treasury,” insists that the city should not be held to have collected or be responsible in any character for the amount of these unlawful abatements.

"We have already indicated that we think the mere fact that the money is not now in its hands does not relieve the city from liability if it is through a violation of its duty only that said money, once actually or constructively collected, is not now available in the fund involved.

The effect sought to be given to the clause in question is too wide. It cannot be properly construed to be an agreement that the city should not be liable for actual future affirmative wrongful acts of its responsible officers, even if it should be held to cover neglects. Such a construction would make the contract void, as against public policy.

We think, moreover, that these amounts thus unlawfully “abated” in the manner described must be considered in law to have been actually paid into the treasury of the city and then by the city wrongfully and tortiously paid out to the various property owners who profited by the “abatements” and “refunds.” There is in our mind no proper distinction between the ‘ ‘ abatement ’ ’ in this fashion and a refund. ’ ’ Any fancied distinction is, at the very most, a mere matter of bookkeeping. The appellant says the abatement orders were a “nullity” in law. But they did not prove to be a nullity in fact. The city ordered the county treasurer to take them as money, the county treasurer took them and receipted for them as money and turned them into the city as money. The city, in its capacity as “trustee,” “bailee,” “agent” or “instrumentality,” took them as money, receipted for them as money, credited them to the fund as money received, and then charged them on the other side as disbursements. We do not think the city is in a situation to claim that they were anything but unlawful and unwarranted disbursements from the fund which belonged to the obligation holder. If they were unlawful and unwarranted disbursements, they were unlawful diversions, and if the amount of them was unlawfully diverted, it was, when demanded by the appellee from the city, unlawfully withheld from him. If these views are correct, the cases cited by the appellee, which decide that mandamus and hot assumpsit is the proper action against a municipality which neglects to make a sufficient assessment to meet the cost of an improvement, do not apply and we need not discuss or distinguish them. We think the $5,251.18 must be added to the $979.97 admitted and be considered a part of the fund liable for the obligations belonging to the plaintiff.

We are brought also by these considerations to an- • other contested question in the case, viz.: Whether, even conceding that $5,251.18 should be on this “abatement” account considered as in the fund liable to plaintiff, interest on the said $5,251.18 should be credited to said fund and made a part of it. The appellee puts forward several theories on which it is said that the city should be liable for such interest, and the trial court, it is said by appellee, calculated interest on the amount in question at the rate of six per cent, per annum for ten years, and added it to the fund to be held liable. This calculation is also the one adopted by the appellee as the proper one to be. made, and in accordance therewith he claims as interest, to be added on this account to the fund, $3,150.70.

The appellant, on the other hand, argues that a municipality is not liable for interest in any event, except by express 'agreement, unless the money on which it is charged is both wrongfully obtained and illegally withheld, and that in the present case, whatever may be concluded as to its being “wrongfully withheld” after demand was made for it, or whatever may be said as to its having been “obtained” at all, it was confessedly not “wrongfully” obtained. Therefore, it is said, the city should not be in any event charged with this interest or any part of it. To these propositions are cited: Vider v. City of Chicago, 164 Ill. 354; City of Peoria v. Construction Co., 169 Ill. 36; City of Danville v. Danville Water Co., 180 Ill. 235.

These last two cases do use the words in relation to the obligation of municipalities for interest, that they are not chargeable with it on claims against them, except where there is an express agreement, or where “money is wrongfully obtained and illegally withheld by them,” but we think that too much emphasis should not be placed on the conjunction, and that the true meaning of the opinions is that municipalities are liable for interest in three cases—where there is an express agreement, where money has been “wrongfully obtained” by them, and where money is “illegally withheld” by them. This accords with the more precise statement in Vider v. City of Chicago, supra, where it is said that “The conclusion to be drawn from these decisions is that counties” (municipal corporations) “do not pay interest on their contracts, except in pursuance of an express agreement to do so, but that in actions originating in torts they are liable to the same extent as private persons.”

The word torts may here be properly read as meaning tortious or illegal acts. It is evidently not a form of suit that is referred to, but the character of the act, and whether it is wrongful or not. In this case the depletion of the fund was a wrongful act, and the amounts so previously refunded to property owners were illegally withheld from its true owner, when, according to the stipulation of facts, “at the date of the maturity of each of said vouchers, bonds and coupons he demanded that they pay said voucher, bonds and coupons,” and it “failed and refused to pay the same. ’ ’

Moreover, the .cases cited are not quite analogous to the one at bar. The obligations, the amount of which is sought to be recovered here, do bear interest by their terms, and so far as they evidence a contract of the city at all they show that the city was bound in its capacity as an “instrumentality” to conserve the fund collected to pay them.

We think that interest on a proper basis is chargeable to the city, to be credited to the fund, but it is our opinion that too ranch interest is claimed by the appellee.

The interest is calculated by him from January 1, 1897, to January 1, 1907, but the “abatements” are said by the statement of facts to have been made ‘ ‘ during the years 1896 and 1897,” and by Exhibit D, annexed thereto, they seem all to have been -made in 1897. Therefore the calculation of interest for ten years is a calculation in any event for a part of a year too much. But this is not all that should be considered, for the abatements seem by Exhibit D, although all made in 1897, to have been distributed through each instalment—that is, a “refund” of $87.21 has no date, but abatement certificates were evidently given in 1897 for $721.27 on the first instalment and $740.45 on each of the other six. That is, abatement orders of $721.27 were given for the instalment payable in 1897 and $740.45 on each of the instalments payable respectively in 1898, 1899, 1900, 1901, 1902 and 1903.

The plaintiff holds a voucher for $5,325.56, which was payable out of the first instalment, but not until July 24, 1899; coupons to the amount of $720, payable out of the fifth instalment, due December 31, 1901; coupons payable out of the sixth instalment to the amount of $936, due December 31, 1901, and to the amount of $936, due December 31, 1902; coupons payable out of the seventh instalment to the amount of $936, due December 31, 1901, $936 due December 31, 1902, and $936 due December 31, 1903. He also holds bonds which were payable out of the fourth instalment to the amount of $11,200, due December 31, 1903, and which were then entirely unpaid; bonds which were payable out of the fifth instalment, to the amount of $12,000, due December 31, 1901, and then entirely unpaid; bonds which were payable out of the sixth instalment, to the amount of $15,600, due December 31, 1902, and then entirely unpaid; and bonds which were payable out of the seventh instalment, to the amount of $15,600, due December 31, 1903, and then entirely unpaid.

This leaves $120 in coupons due December 31, 1901, according to Exhibit A, unaccounted for, but as they cannot be placed from the data in the record, they must be disregarded in this statement. From this statement it appears that, so far as the record shows, the appellee had claims on the fund on the following respective dates for the following respective sums only, out of the respective instalments:

From the 1st instalment,
$5,325.56, July 24,1899;
From the 4th instalment,
From the 5th instalment,
From the 6th instalment, and
From the 7th instalment,
11,200,
12,720,
936,
16.536,
936,
936,
16.536,
Dec. 31,1900;
Dec. 31,1901;
Dec. 31,1901;
Dec. 31,1902;
Dec. 31,1901;
Dec. 31,1902;
Dec. 31,1903.

We cannot see that any interest should begin to run in favor of the fund on account of these abatements until the appellee suffered from some default on their account. It was only then an “unlawful withholding” began. The first default that could have been made was when the Voucher for $5,325.56 became due on July 24, 1899, and then as it was payable only from the first instalment, the abatements made from the other instalments did not concern it. It is true that had the other instalments not been paid by the property owners before they became due, interest on them would have been payable annually, but the property owner had a right to pay them at once upon the confirmation of the assessment, and the very theory of the appellee’s claim is that he did pay them in 1897, and immediately received a refund. We think the first interest credited to the fund should be on $721.27, from December 31, 1897, to February 4, 1907 (the date of the judgment appealed from)—nearer nine years than ten—and that it should be computed not at six per cent., but at the legal rate of five per cent. This would amount to $327.97. The next interest that should be credited should begin to run when the next default is shown, which was on December 31, 1900. Here arises a question, however, as to what amount the interest should be calculated on. Abatement certificates had been given on the second, third and fourth instalments, amounting in the aggregate to $2,221.35, but of this amount only $740.45 was of the fourth instalment, from which the default in $11,200 was made on December 31, 1900. We think, however, that as in this case no question arises between different owners of bonds payable from different instalments, that the contractor and holder of all the obligations on the assessment was entitled to payment from the fund in full before any part of it would belong or be due to any other person, and that illegal depletion of prior instalments, therefore,, although the obligations specifically payable from those instalments have been met in full, should render the city chargeable with interest on such depletion from the next default.

By a later act (May 9, 1901), amending the act concerning local improvements, of June 14, 1897, section 86 of the latter act, which treats of bonds to anticipate the collection of the second and subsequent instalments, was amended. The legislature does not alter anything material in the section as it stood, except the rate of interest the bonds should bear, and did not otherwise change their prescribed form. But it made very clear the meaning of the section by adding thereto these words:

“Provided, nothing herein contained shall be construed to prevent the payment of any voucher or bond out of an instalment having a surplus to its credit other than the one against which the same is issued, the intent and meaning thereof being that in case, from any cause, the instalment against which such bond or voucher is drawn has not sufficient money to the credit thereof to pay the same, the entire amount of the assessment or any instalment thereof may be applied toward the payment of any such vouchers or bonds issued against the assessment.”

This was a legislative construction of the section in the sense we have adopted.

Interest at five per cent, per annum on $2,221.35, from December 31, 1900, to February 4, 1907, is $676.45. There was nothing due from the fifth, sixth or seventh instalments until December 31, 1901, but on that date sums greater than the abatements made from each of those instalments in 1897 were due, and we think interest should be credited to the fund on $2,221.35, from December 31,1901, to February 4,1907, which is $565.08.

The aggregate amount to be added to the fund on account of these unlawful abatements is not $8,401.88, but $6,820.39.

The third and last item concerning which there is contention is thus stated in the stipulation of facts:

“On December 31, 1896, out of the money which the city collected from the property owners on said special assessment as aforesaid, the city, by its then officers in charge of the administration of special assessments, transferred from said special assessment fund warrant 22,344 the sum of $4,353.11, which the, city claimed for the cost of engineering and superintendence and the cost of making and collecting said assessment, to another fund, known as Fund W. The actual cost of inspection of said improvement, $2,-453.50, was also transferred to said Fund W, making an aggregate of $6,807.27 so transferred. Said sum of $6,807.27, together with six per cent, of the estimated cost of all other improvements made by special assessment during the year 1896 and several years prior and subsequent to said year, were merged into said Fund W, and together constituted a single fund, from which were paid the pay-rolls of the special , assessment department of the city of Chicago, including the pay-rolls of all inspectors and engineers, as well as the accountants, administrative officers, and all other employes of said department, including the expenses of making and collecting the assessments. No account was kept as to the expense of making or collecting any particular special assessment, nor of the actual cost of the engineering and superintendence of any particular special assessment. It cannot now be ascertained what was the expense to the city of Chicago of the engineering and superintendence, making and collecting the special assessment above referred to, nor of any other particular assessment. The amounts thus transferred in the aggregate to ‘Fund W’ were more than the total cost of administration of the special assessment department, and the balance of said ‘Fund W’ was again transferred to the general fund of the city of Chicago and used for general corporate purposes.”
“On December 31, 1896, the city, by its then officers, also transferred from said special assessment fund the sum of $3,072.82, and credited the same to the account of its sewer department and used said sum of money, together with other similar sums transferred from other special assessment funds, in the payment of the expenses of said sewer department, without keeping any account of the particular amounts expended by said sewer department on the separate and particular special assessment improvements. The work done by the sewer department consisted in constructing catch basins and connecting the same with the openings in the gutters of the streets so improved and with the sewers in said streets underneath said pavements, so as to provide for taking care of the surface waters on said streets, but the special assessment ordinance in the case in question contained no provision for the construction or adjustment of sewers and catch basins, and did not describe or refer to the same as a portion of said improvement.”
“The transfers to ‘Fund W’ and to the sewer department as aforesaid, were made in good faith and with a supposed lawful right so to do.”
“The original assessment proceeding above referred to was reversed on writ of error for a technical defect in the improvement ordinance (Jacobs v. City of Chicago, 178 Ill. 560), in that it did not specify the height of the curb with relation to the grade of the street. Proceedings were thereafter had for the confirmation of new assessments, and in said proceedings it was adjudicated by the County Court that the city could not include in the new special assessment, or collect from the property owners as part of the cost of the improvement, the items which had been thus diverted from the particular special assessment fund ‘Warrant No. 22344’ by the officers of the city of Chicago for the alleged expense of engineering, etc., amounting to $4,353.77, and for the adjustment of sewers, amounting to $3,072.82, above referred to, but that the said item for inspection, amounting to $2,-453.50, could be and was. so allowed; and the said judgment of the County Court, upon appeal to the Supreme Court of Illinois, was duly affirmed, the opinion of said court being reported in the case of Gorton v. City of Chicago, 201 Ill. 534.”

The claim of the appellee as to this item is that the sums of $4,353.77 and $3,072.82, aggregating $7,-246.59, once paid by the property owners in cash, have been unlawfully diverted from the trust fund in the hands of the city belonging to him, and taken by the city and used by it for its own purposes, and that this has rendered the city directly liable for the said sums and interest thereon.

Moreover, it is urged by him that by the judicial determination in the County Court, the judgment of which was affirmed by • the Supreme Court, that the deficiency made by the use of these sums could not be made up by a supplemental assessment, there has been, in effect, an adjudication that the sums in question were unlawfully used in the first instance.

The contention of the appellant is that the adjudication in the County Court is not binding in this case, since it was between other parties, and that the two items were necessary and legitimate expenses to charge to the fund, that the stipulation of facts does not show any improper disbursement of them, and should be strictly construed. But if the fund should be considered as depleted by these amounts, yet, for further reasons, to be noticed hereafter, appellant says no interest on them should be charged.

As to the principal of the sums, we do not read the stipulation of facts as do appellant’s counsel. A part of the sum in which it is claimed the fund was depleted, viz.: $4,353.77, was, according to the said stipulation, transferred on the books of the city to a particular fund—“Fund W,” so called—-and in the first place that fund as a whole was used for many expenses other than the improvement in question, of which no such account was kept that the expenses connected with this special assessment and improvement and paid from it can be ascertained. Then a balance of the funds in the aggregate transferred to Fund W were transferred to the general fund of the city of Chicago and used for its general corporate purposes. It is needless to say that a trustee cannot thus deal with funds in its hands without becoming directly liable for them.

As to the $3,072.82 credited to the sewer fund, it is not only true, according to the stipulation, that the special assessment ordinance involved in this case contained no provision for the construction and adjustment of sewers and catch basins, and did not describe or refer to the same as a portion of said improvement, but also that the appellant used said sum of money, together with other similar sums transferred from other special assessment funds, in the payment of the expenses of said.sewer department, without keeping any account of the particular amounts expended by said sewer department on the separate and particular special assessment improvements.

It does not even need the further recitals of the stipulation, that “Proceedings were thereafter had for the confirmation of new assessments, and in said proceedings it was adjudicated by the County Court that the city could not include in the new special assessment, or collect from the property owners, as part of the cost of the improvement, the items which had been thus diverted from the particular special assessment fund ‘Warrant No. 22,3áá’ by the officers of the city of Chicago, for the alleged expense of engineering, etc., amounting to $3,072.82, above referred to,” to bring us to the conclusion that these sums were diverted from the trust fund in question here, and that the city should be charged directly with them in this proceeding. It does not matter whether the decision of the County Court is an adjudication for us of this question. It certainly decided the question before it as we should have expected it to do.

Seven thousand, two hundred and forty-six dollars and fifty-nine cents must be added to the amount for which the city is to be held chargeable on account of the principal of these last items. Under the rule which we have declared, as to the charge of interest we think the city is properly accountable for it on this item also.

The counsel for appellant contend to the contrary, not only on the grounds on which they object to the allowance of interest on the abatement orders— grounds which we have hereinbefore disposed of—but because, they say, that at most if the transfer to other funds of this amount was illegal, it could be but a matter of bookkeeping, and that as the city had the money, in one fund or the other, it cannot be said to have made way with or converted it.

To allow the force of this argument to the full extent claimed for it by counsel, would be unwarrantably to give to the city the benefit of its own wrong. It, by its action, debited money on a particular date (December 31, 1906) from a trust fund, and credited it to non-trust funds, from which it proceeded to pay corporate liabilities not properly chargeable to the specific trust fund. It was a notification to all concerned of the diversion of the money, which in the case of an individual trustee would charge him with interest from that date. It is an argument not without force, to say that the $7,246.59 was on that date of December 31, 1896, “wrongfully obtained” by the city, and should from that date bear interest. We do not wish to place our decision on that ground, however, and there is no showing in the stipulation of facts of the dates when this money was expended by the city for unauthorized purposes, and it cannot be said to have been “illegally withheld” because of its wrongful transfer on the city’s books, until there was a default and demand in connection with the obligations on the trust fund. The sums belonged to the first instalment, and the first default shown by the record here was in the sum of $5,325.56 on July 24, 1899.

From the moment that this payment was refused, that amount, at least, was “illegally withheld.” The next default was on $11,200, December 31, 1900. Our decision is that the city, on this portion of the fund, is chargeable with interest at five per cent, on $5,325.56 from July 24, 1899, to February 4, 1907, and on $1,-921.03 from December 31, 1900, to February 4, 1907. These items of interest are $2,005.20 and $585.37 respectively, which, added to $7,246.59, make $9,837.16. The amount for which we hold the city chargeable to the trust fund involved is therefore the sum of $979.97, $6,820.39 and $9,837.16—in the aggregate $17,637.42, and for this sum we think the city was answerable in this suit and under the stipulation on which it was tried as for money had and received. Its payment will not extinguish, except pro tanto, the outstanding obligations on the fund, for the tenth clause of the stipulation is: “This suit merely involves the plaintiff’s claims against the city for payment of said vouchers, bonds and coupons, on account of the city’s action in taking from and charging against the moneys collected by it through said special assessment proceeding the sums of money above referred to in paragraphs three and four hereof (i. e., the transfers to Fund W and the Sewer Fund), in allowing abatements to property owners as stated in paragraph five hereof, and in bidding in certain property at tax sale, as stated in paragraph seven hereof, and is not to be considered as affecting any other rights or causes of action which the plaintiff may have or become entitled to.”

The amount for which the plaintiff was given judgment below was based on two computations, as we have indicated. The one which fixed the amount for which the city was answerable to the trust fund, we have shown, we think, was too much. That which fixed the amount due to the plaintiff on the obligations held by him, we think also too much, despite the stipulation as, to its correctness, in that the interest on a voucher which bore no interest on its face has been calculated at six per cent, after maturity, five per cent, being the proper rate; because the same rate, excessive by one per cent., has been used in calculating interest on overdue coupons which provided for no rate on their face; and because interest, according to Exhibit A, was, in computing the amount of the judgment, plainly compounded from October 31,1906, to January 3,1907. But this is not material in our decision, because the amount computed to be due on the said obligations, after making all such allowances, would very considerably exceed the sum for which we hold the city chargeable.

If the plaintiff will, within ten days, remit on the judgment of the Circuit Court the sum of $2J538.75, we will affirm the same, and the balance will, of course, draw interest from its date below. If not, the judgment will be reversed and the cause remanded.

Affirmed on remittitur.

January 13,1908, order of January 13,1908, vacated by consent.

January 20, 1908, reversed and judgment here for $18,475, in favor of appellee.