text:
    Christiane C. Taubenhan et al. v. Margaret Dunz.
    1. Wills—Bequest—Words oe comprehensive import.—Words of comprehensive import in a bequest, should receive their full extent of operation, unless some very distinct ground can be derived from the context for regarding them as employed in a special and restricted sense.
    2. Presumption that testator intends to dispose oe his whole estate.—It is presumed that a testator, when he makes and publishes his will, intends to dispose of his whole estate, unless the presumption is rebutted by its provisions or evidence to the contrary.
    3. Same.—While the law favors the heir to the extent that the heir will take what is not, by the words of the will, devised or bequeathed to another, no presumption of an intent to die intestate as to any part of an estate is to be made, where the words of the testator will carry the whole.
    4. All bequests to one person—Words conveying whole estate. —-Where the bequests in a will were all to one person (not related to the testator) and the last bequeathing words were “also all the loose property in, on and around the homestead, consisting of one cow, two hogs and a lot of wood and all other property of every kind,” and besides the property specifically devised by the will, the testator owned another lot and chattel property, furniture, notes, accounts, etc., held, that the words “and all other property of every kind ” carried the whole estate.
    Appeal from the Circuit Court of Carroll county; the Hon. John V. Eustace, Judge, presiding.
    Opinion filed November 8, 1886.
    This is an appeal from an order of the Circuit Court of Carroll county, dismissing the petition of appellants, which was filed in the County Court of Carroll county, and which alleged that appellants were the sisters and only heirs at law of Charles Medler, deceased, and claimed that they are entitled, as such heirs at law, to all the property left by the said Challes" Medler, remaining after the payment of the specific legacies mentioned in the will, and that all such specific legacies had been paid.
    The last will and testament of Charles Medler, deceased, is in words and figures following, to wit:
    In the name of God, amen:
    I, Charles Medler, of the age of sixty-nine years, of the city of Mount Carroll, in the county of Carroll and State of Illinois, being of sound mind and memory, do make, publish and declare this my last will and testament in the manner followring, that is to say: I will and direct that all my just debts
    and funeral expenses be paid in full. Second. I give and bequeath unto my friend, Margaret Dunz, the homestead and all the lots and parcels of land adjoining, being lots 2, 3 and 4; also a strip of land twenty-three feet in width off the north side of lot 7, all in block lo, in the N. Halderman plat of the town, now city, of Mount Carroll; also one lot in the east part of the city of Mount Carroll now owned by me and described by deed; also all interest I now have in a certain promissory note for two hundred dollars, given by Charles Stober, dated November 19, 1873, and secured by a certain trust deed of the same date, on lot 11, in block 5, in West Carroll, as laid out by David Eminert, and signed by Charles Stober and wife; also three thousand dollars in money, to be paid to her by my executor; also all the loose property in, on and around the homestead, consisting of one cow, two hogs and a lot of wood, and all other property of every kind.
    Lastly, I hereby revoke and annul all former and other wills by me made.

      In witness whereof, I have hereunto set my hand and seal this thirty-first day of December, 1882.
    Carl Medler. [seal.]
    Attestation of witnesses.
    The inventory of the estate shows that besides the real estate specifically devised by the will, the deceased owned another lot valued at about §70, and chattel property consisting of furniture, liquors, etc., value not given, cash on hand at the time of the decease, §849 and notes and accounts, face value §8,489.
    Mr. James Shaw, Mr. Wm. Vocke and Mr. Harvey Storck, for appellants;
    that the heir is not to be disinherited unless by express words or necessary implication, cited 1 Redfield on Wills, *426 ; Saylor v. Plaine, 31 Md. 158; Wood v. Mitcham, 92 N. Y. 375; Crane v. Doty, 1 Ohio, 279 ; Areson v. Areson, 3 Denio, 458; Moone v. Heaseman, Willes, 141; Hay v. Earl of Coventry, 3 T. R. 83; Moore v. Denn, 2 B. & P. 247; Wheaton v. Andress, 23 Wend. 452; Haxtun v. Corse, 2 Barb. Ch. 506; Grim’s Appeal, 89 Penn. St. 333.
    Where bequests are made by words of enumeration, which are followed in the same clause by collective words, or words of general description, the latter may be confined to matters ejusdem generis: Rawlings v. Jennings, 13 Ves. 39; Dole v. Johnson, 3 Allen, 364; Johnson v. Goss, 128 Mass. 433; Fraser v. Alexander, 2 Dev. Eq. 348; Parish v. Cook, 78 Mo. 212; Wrench v. Jutting, 3 Beav. 521; Timewell v. Perkins, 2 Atk. 102; Pippin v. Ellison, 12 Ired. 1 L. 61; Hotham v. Sutton, 15 Ves., Jr., 319; Cook v. Oakley, 1 Peere W., 302; Collier v. Squire, 3 Russ. 467; Crichton v. Symes, 3 Atk. 61; Bullard v. Goffe, 20 Pick. 252; Doe v. Bowt, 7 Taunt. 79.
    Mr. James M. Hunter and Mr. George L. Hoffman, for appellee;
    as to the construction of wills, cited Updike v. Tompkins, 100 Ill. 406; Blanchard v. Maynard, 103 Ill. 60 ; Welsch v. Belleville Savings Bk., 94 Ill. 200; 1 Bedfield on Wills, 429; Ill. Land & Loan Co. v. Bonner, 75 Ill. 327; Hardle v. Outlaw, 2 Jones Eq. (N. C.) 75 ; Jackson v. Hansel, 17 Johns. 281; Heslop v, Gatton, 71 Ill. 528; Bergan v. Cahill, 55 Ill. 160 ; Johnson v. Johnson, 98 Ill. 564; Rountree v. Talbot, 89 Ill. 246.
    It is presumed that a testator, when he makes and publishes a will, intends to dispose of the whole of his estate, unless the presumption is rebutted by its provisions or evidence to the contrary: Higgins v. Dwen, 100 Ill. 554; Irwin v. Zane, 15 W. Va. 646 ; Jarman on Wills, 4th Ed., 143 (n) C.
   Moran, J.

The question for determination is, what is the correct construction of the words in the last clause of the will, and all other property of every kind.”

Appellant’s contention is, that those words are to be construed as bequeathing only property ejusdem generis with loose property in, on and around the homestead, and that as to such portion of his estate as was not specifically disposed of in his will, Charles Medler died intestate.

It is contended for appellants that where bequests are made by words of enumeration, "which are followed in the same clause by collective words, or words of general description, the latter are to be confined to matters ejusdem generis. The earlier cases in England, which are cited by counsel, give a degree of support to .their contention, but an examination of those cases shows that a rule can not be drawn from them, as each case depends upon the peculiar phraseology of the will.

In Rawlings v. Jennings, 13 Vesey, 39, where the bequest was to the wife, of certain bank stock, together with all testator’s “household furniture and effects, of what nature or kind soever,” that he might be possessed of at the time of his decease, the master of rolls held that the bequest was to be confined to articles of the nature of those specified, and did not comprise the general residue. But immediately following the general clause of the will, the testator gave bequests of money to different persons, and among others a pecuniary legacy to his said wife, and the court laid stress on that fact, observing that part of the property being given to her afterward, the word effects must receive a more limited construction.

Mr. Jarman, in his work on Wills, remarks on this case, that •¿he words of the will were very general, “ but the manner in which the testator, after making the bequest in question, had g..ne on to give specific and pecuniary legacies, seemed hardly reconcilable with the supposition that the prior gift to the wife was intended to embrace the general residue, as it is more natural, though certainly not invariable, for the testator to reserve his residuary disposition until the end of his will.”

In Dole v. Johnson, 3 Allen, 364, by the third clause of the will, the testator gave to his wife “ all my real and personal estate * * so long as she shall remain my widow.” By the fourth clause he gave “all my household furniture, wearing apparel and all the rest and residue of my personal property.” The personal estate having been in one clause for life and the personal property in the other absolutely, the court considering that the things named in the fourth clause are chattels of strictly personal use, regard the meaning of the whole will as made more consistent by restricting the word property in that clause to chattels ejusdem generis with those enumerated therein, and regarding productive personal property as covered by the words “all my personal estate,” in which not an absolute but a life interest was given by the third clause of the will.

But in the later case of Brown v. Cogswell, reported in 5 Allen, 556, the same judge held that under a clause of a will giving “ all my household furniture, wearing apparel and all the rest and residue of my personal property, saving-and excepting one feather bed,” the legatee therein named took the whole of the residue of testator’s personal property, although no intention is expressed in the will to dispose of the testator’s whole estate, and the will, in subsequent clauses, gives various specific legacies in money, and although various collateral heirs at law of the testator, one of whom is nearer in degree than the legatees therein named, are not mentioned in the will. It was argued that the case was governed by Dole v. Johnson, and the court observed that while no reason was seen to question the correctness of that decision, yet it was to be observed “ that it was a case of great difficulty, by no means free from doubt, and which carried the doctrine upon which it rests as far as it can safely extend.”

Johnson v. Goss, 328 Mass. 433, was a case like Dole v. Johnson, in that the court makes the same distinction between articles of personal use and convenience and personal property of a productive nature, such as mortgages and bank stock. The bequest was “ all my personal property, my household effects, horse and carriage, my life insurance and two mortgages on real estate,” which are described. The court said, “ It is clear beyond doubt that the testator did not intend to use the words ‘all my personal property,’ in their ordinary sense, because he proceeds to give his wife and other legatees large portions of his invested and productive personal property. And it was accordingly held that mortgages not described by the testator in the clause did not pass under the terms.

In Fraser v. Alexander, 2 Dev. Eq. 348, the testator directed, that “all my property, consisting of lands, stock of every kind, household and kitchen furniture, wagon and farming tools, be sold at public sale, and the money thence arising ” to be given to three certain churches. It was claimed that negro slaves passed by the general words “ all my property.” The court held that the words following, viz: “ stock,” etc., qualified the use of the preceding larger term, but the decision is made to rest mainly on the fact that the negroes are -referred to in another clause. The court say: “ But whatever doubt might arise on that clause standing by itself, it is removed by the subsequent one, which relates to the negroes specially. From that it is clear they were not intended to pass by the first, because they are directed to be disposed of by private sale, a manner different from the articles enumerated in the first. This difference being in the contemplation of the testatrix, she must be considered as purposely withholding them from the former provision for the sale of the latter, although she afterward makes no actual disposition of the proceeds that does not bring the proceeds again within the operation of the clauses from which they had been designedly excluded.”

Farish v. Cook, 78 Mo. 212, is simply an adjudication that the words in a will “ all my worldly goods,” do not embrace real estate where the context of the will shows that they were not understood to do so by the testator ; the court say, “But the subsequent language indicates by its enumeration, that he did not intend it should include real estate, for he continues, consisting of household furniture, clothing, beds and bedding, money and cattle.’ He wills her his worldly goods, and tells what they are, thus restricting the meaning to personal property. He next wills the debts due him, which, as rights of action, do not ordinarily fall under the designation of 1 goods.’ He next proceeds to dispose of his real estate, making special mention of it, which naturally excludes that kind of property from the operation of the language which he had restricted to certain kinds of personal property.”

In Wrench v. Jutting, 3 Beav. 521, the testator gave “ all his household furniture, plate, linen, china, books, pictures and all other goods of whatever kind,” and then proceeded to declare that certain specified portions of his property should be divided as follows: “£50 to B, £100 to C, etc.; £3,000 to £1,000 or whatever remaining sum or sums, to A.” Lord Langdale said that if the first clause had been the only one in the will there would have been strong reason for extending the operation of the words “ all other goods,” but that the testator showed by subsequently stating his intention as to a particular part of it that he used the words in a restricted sense.

Ternewill v. Perkins, 2 Atk. 102, held that the words “ whatever I have or shall have at my death,” were restrained by the enumeration in" the words, “ as plate, jewels, linen, household goods,” etc.

Pippen v. Ellison, 12 Iredell L. 61, cited by counsel to show that the word “property,” as used in the will under consideration, would not include choses in action, is modified by the court in Hurdle v. Outlaw, 2 Jones’ Eq. 75, where it is said that the restricted meaning which the court in the former case applied to the word, “property” was not necessary to the decision, and the judge who wrote the opinion in the former case, states that in it he was guilty in that regard of uttering an obiter' dictum.

Hotham v. Sutton, 15 Vesey, 319, is cited by counsel for the statement of Lord Eldon that it appears to be settled that the words, “ other effects ” in general, mean effects ejusdem generis, but the case shows that it appearing from the context that the testator understood the words in the large sense, they were so construed, and everything but money, which was specially excepted, was held to pass under a bequest of “ plate, linen, household goods and other effects (money excepted).”

In Crichton v. Lymes, 3 Atk. 61, the words “ all my goods, wearing apparel of what nature soever, except my gold watch ” were held not to include the entire personal estate, Lord Harwicke, saying: “ This was not intended to be a residuary clause, for she afterward gives a legacy of £50.”

Collin v. Squire, 3 Russ. 467, held that the stock which had been included in a prior marriage settlement, could not reasonably be considered to pass under the words, “every other article belonging to me both in and out of my house and which may not be mentioned herein.”

From the foregoing statement of the grounds of decisions in the cases cited and relied on by appellants, it is apparent that, while they give general support to the doctrine that general words will receive a limited construction when preceded or followed in the bequeathing clause by words of enumeration, yet in nearly every case the construction was based, not merely on the fact of the enumeration and the general words found in the same clause, but mainly and in some of the cases wholly, upon the ground that from subsequent bequests made by the testator in the will, it was demonstrated that he used the general words in the restricted sense, and did not suppose or intend them to carry the residue of his property.

A few cases furnish instances where the doctrine contended for seems to have been carried very far, but they are among the early decisions, and are not followed in the more modern cases. Fir. Bedfield in his work on Wills, Vol. 1, 442, note, says that “ The courts of equity, even in England, do not seem to apply the rule ejusdem generis with so much strictness as formerly.” In support of this observation many cases might be cited. In Nugee v. Chapman, 29 Beav. 290, Lord Romilly said: “ In these cases, where general words are construed to be ejtisdem generis with the particular words which preceded them, there is often a great refinement of law, and the construction given is not always that which was intended by the testator himself. It is not uncommon for persons who intend to include everything and who do not write accurately, to specify many items and then to add a general expression.’’ And the court determined that under a bequest as follows: “ As regards my worldly goods I give and bequeath all my furniture, plate, books and other personalty, to my wife,” the wife took everything.

In Grover v. Davis, 29 Beav. 222, the bequest was to the wife, of clothing, balance of clothing, money due and to become due. “ Also the whole of my property and effects, that is to say my box, clothes, bedding, etc., etc., I bequeath to my wife,” was held to convey the whole residue, including a reversionary interest in real estate.

In Swinfen v. Swinfen, 29 Beav. 207, the words “ I give to Mrs. Swinfen, my son’s widow, all my estate at Swinfen or thereto adjoining, also all furniture or other movable goods here,” were held to carry the money in the house. The words “ movable goods here ” were to be taken in their ordinary unconfined sense, and were not to be cut down by their being preceded by the word “furniture.”

In Bennett v. Bachelor, 3 Brown’s Ch. 26, the will, after devising to one Jenny Powell, real estate, and giving her specific bequests, gave to her also “ all my household goods, books, linen, wearing apparel, and all other not before bequeathed goods and chattels that I shall be in possession of at the day of my decease (except the plate and legacies before and hereafter given and bequeathed); also I give and bequeath unto said Jenny Powell all money that shall be due from tenants and other persons.”

It was contended that this would not pass leasehold estates, or money in the funds, but it was held a good residuary clause.

In Dean v. Gibson, 3 L. R. Eq. Cases, 713, the will was “ that my personal property, consisting of money and clothes, shall be equally divided among my three sisters.” All the personal property was held to have passed, the court saying; “ She attempted to enumerate the items of which her personal estate consisted and failed to mention them all.” There was no other bequest.

In Hodgson v. Jex, L. R. 2 Ch. D. 122, the bequest was “ I give and bequeath to my sister, Anne Gray, for the term of her natural life, all my furniture, plate, linen, and other effects that may be in my possession at the time of my death.” In addition to the property mentioned in the will, testator left two promissory notes and money in the bank. The court say : It is alleged that the words “ other effects,” are to be cut down so as to mean that which is something like furniture, plate or linen. But the answer is, that the words of a will ought to have their natural meaning given them, unless there is some contrary intention appearing in the will. The mere fact that the testatrix enumerates some items before the words “ and other effects,” does not alter the proper meaning of those words. The residuary personal estate was held to pass.

In Arnold v. Arnold, 2 Mylne & K. 366, the bequest of “ my wines and property in England,” was held to apply to testator’s property in England of every description and was not confined to property ejusdem generis with the wines. Sir John Leach, hi. R., said: “ That the mere enumeration of particular articles followed by a general bequest, does not of necessity restrict the general bequest is obvious, because, as has been stated, a testator often throws in such specific words and then winds up the catalogue with some comprehensive expression, for the very purpose of preventing the bequest from being so restricted. Clearly, therefore, in the ordinary case, the gift of the wines would not be limited by the occurrence of the subsequent word ‘ property ’ which, be it observed, is as large and comprehensive a term as can possibly be used. * * * Indeed I have been unable to discover any instance in which the word property has been confined to articles of the description above enumerated, unless where other expressions occurred, from which it was clear that the word was not there used in its ordinary sense. The cases on this subject naturally •turn upon very nice distinctions; in most of them the general bequest sought to be restricted has been of ‘ effects,’ and I know of none in which the question has arisen on the word property,’ unless when it lias been introduced by way of exception or qualification to the prior gift.”

The rule is now well established by the later English cases, that words of comprehensive import in a bequest should receive their full extent of operation unless some very distinct ground can be derived from the context for regarding them as employed in a special and restricted sense. In addition to the cases above quoted from in support of this view, the following English and American cases may be cited: Martin v. Glover, 1 Coll. 269; In re Kendall, Trustee, 14 Beav. 608 ; Fleming v. Burrows, 1 Russ. 244; Jarnagin v. Conway, 2 Humph. (Tenn.) 50 ; Hurdle v. Outlaw, 2 Jones’ Eq. 75 ; Bunting v. Harris, Phill. Eq. 11.

The words used in different wills are so various that but little aid can be obtained in construing any particular one from decided cases. The will under consideration is obviously inartificially drawn. The bequests are all to one person, and the final clause is as broad and comprehensive as could possibly be used. All other property of every kind ” would carry all the property specifically bequeathed as well as everything else of which the testator was possessed at the time of his death. Unless these words are limited by the enumeration of loose property on and around the homestead, which precedes them, they must be giyen their full ordinary meaning and force. There is nothing in the will except that specific devises and bequests are made to the same person to whom the general bequest is made, and the enumeration of the loose property around the homestead that can furnish any argument for limiting the general words. These general words are the last bequeathing words in the will, and thus occupy the position that is naturally and usually given to a residuary clause. The whole context of the will must be regarded and each word and sentence must be given its ordinary meaning and operation, and must not be restricted unless such restrictioh is necessary to carry out the plain intention of the testator.

“The language used shall receive its ordinary interpretation, except where some other is necessary or clearly indicated.” Christie v. Phyfe, 19 N. Y. 344.

The reasons drawn by counsel for appellants from the form in which the will is drawn, and from the" fact that the beneficiary under the will had no claims on the testator, and his next of bin are not mentioned or provided for, are not without some force, but as reasons for a restricted construction of the broad words of this will, they are too slight and equivocal, and rest too much upon a foundation of surmise and conjecture to furnish that evidence of intention which, by the rule established by the cases we have quoted, is required to control such words. There is another rule, the application of which to the construction of this will, leads to the same result. “ It is presumed that a testator, when he makes and publishes his will, intends to dispose of his whole estate, unless the presumption is rebutted by its provisions or evidence to the contrary.” Higgins v. Dwen, 100 Ill. 554.

It is true, as counsel argues, that the law favors the heir to the extent that the heir will take what is not, by the words of the will, devised or bequeathed to another, but in the words of Gibson J., in Stehman v. Stehman, 1 Watts, 475, “ No presumption of an intent to die intestate as to any part of an estate is to be made where the words of the testator will carry the whole.”

The words of this will are, as we have seen, broad enough to carry the whole, and the law presumes that was the testator’s intention. The judgment of the circuit court was correct and must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: McAllister, P. J.

license: Public Domain

text:
    Mary W. Chase v. City of Chicago.
    1. Defective sidewalk—Evidence.—Where the particular hole or spot into which plaintiff’s foot was caught could not be pointed out or identified, although the undisputed evidence was that it was somewhere along the sixty feet of the sidewalk fronting a certain vacant lot of that width, it was competent for the plaintiff to show that the principal portions of said sixty feet of sidewalk were in a bad condition, having holes into which her foot might be caught, and to show how long such portions had been so, prior to the accident.
    2. Improper statements of counsel.—While an appellate court should be careful and critical in recognizing alleged improper statements of counsel in argument as affording ground for reversal, the court is of opinion that the statements made by counsel for the city in this case afford ground for reversal.
    Error to the Superior Court of Cook county; the Hon. Eollin S. Williamson, Judge, presiding.
    Opinion filed November 8, 1889.
    This was an action by Mrs. Chase against the city of Chicago, to recover for a personal injury, occasioned by plaintiff stepping into a hole in the sidewalk of one of the public streets and thereby breaking one of her legs. There was a tidal upon a sufficient declaration and plea of general issue, terminating in a verdict and judgment for defendant, and the plaintiff _ brings error to this court.
    It appears that on the evening of February IS, 1885, the plaintiff, who resided on West Monroe St. near Western Ave., went, in company with the wife of Doctor Angear and a Miss Emily Chase, to a church near Union Park, and after church and about nine o’clock, she started in company with the same persons to walk home, going westward upon the sidewalk upon the north side of West Madison street, a much traveled street; that the walking was good until they came to a portion of the sidewalk lying in front of a vacant lot .sixty feet in width at some point between Leavitt and Oakley streets; that there they found such portion covered with snow of considerable depth, with only a narrow path for travel, and they entered that path in single file, the plaintiff being in the rear; that she had proceeded part way across such portion of sidewalk, when plaintiff, having slipped a little to the right of the path, her right foot went down a distance from, sixteen to eighteen inches, and her foot became caught and held in a hole underneath, and she being thrown to the right and a° little backward, had her right leg broken a little above the ankle; that it was with much difficulty that her foot could be extricated from such hole; that she was disabled for many months, and at times suffered great pain as a consequence; that she employed Dr. Angear to set and care for her limb and paid him seventy-five dollars for his services, extending through a period of about three months. The foregoing facts appear without any substantial controversy. It further appears that plaintiff introduced evidence tending to prove that a considerable portion of said sidewalk in Iront of said vacant lot was, just prior to said injury and at the time the snow came, in a bad and unsafe condition; that it was made of stringers laid lengthwise and plank crosswise; that many of said planks were loose, some rotten, some broken; and there were holes in the walk so as not to be convenient and safe for travel; that it had been in such condition for at least three months before the accident, and had, some considerable time before, been reported as in a bad condition to the police department. It appeared that plaintiff’s husband went the next morning to the place, for the purpose of finding the particular hole into which her foot went, but, for some reason, did not succeed, and that particular hole could not be located and identified, although it was clearly shown to have been opposite said vacant lot.
    On the trial plaintiff called as a witness to show the condition of the sidewalk at the place in question, a Mr. Elvey, a coal dealer, who had his place of business on the other side of the street directly opposite said place. After stating his knowledge of the place by information received a day or two after the plaintiff’s injury, he was asked if he knew the condition of the sidewalk there about that time and previously. On answering in the affirmative, he was asked to state what that condition was. He testified: “ There were a number of bad the sidewalk had a number of bad holes in it; rotten, de cayed places; it had been out of order for a long time.”
    Whereupon the court said: “ I think your question or answer, if you will allow me to suggest, is a little too broad; there could not have been a number of holes in the same place-where the plaintiff was injured, in the s’ame identical place where she was injured.”
    Witness: “ I don’t know.” Counsel for plaintiff then said : “ I don’t think the court can confine him to one hole.”
    The Court: “ I think I can confine him to the place where she was hurt. I think the city is not chargeable with the condition of the sidewalk at any other place than where the injury occurred. Strike out the answer.” To which exception was duly taken by plaintiff.
    The bill of exceptions contains the testimony of each of the witnesses of the respective parties, and a statement that it is all the evidence introduced on the trial, which is followed by this statement concerning one of the counsel for defendant:
    “And thereupon, in his speech to the jury, Mr. Wasliburne, attorney for defendant, against the protests of attorney for plaintiff, among other things stated : That in his 'position as attorney for the city, it was customary for him to try cases brought against the city, some of which were meritorious and others based upon fraud and perjury; that it became his duty, as the representative of the taxpayers of the city, -to characterize this as one of the cases which had not-a shadow of merit—a case based upon fraud and perjury, and maintained by a conspiracy between John Gibbons, the attorney for the plaintiff, and Dr. Angear; that it was a blackmailing scheme to extort money from the city; that he hoped the jury would remember, after they retired to their jury room, that Mrs. Chase was very little interested in the result; that the amount of the verdict which they would give her would be divided into three equal parts, one third going to Mrs. Chase, one third to Dr. Angear and one third to John Gibbons; that he hoped the jury would not permit these men, who came from Iowa, this Iowa contingent, to profit by such a conspiracy. And thereupon, turning around in a threatening and boisterous manner, stood in front of John Gibbons where he was sitting, shook his fist in his face and hallooed out at the top of his voice, ‘Why didn’t you put Mr. Chase upon the witness stand, John Gibbons ? Why didn’t you put Mr. Chase upon the witness stand, John Gibbons? Why didn’t you put Mr. Chase upon the witness stand, John Gibbons? I will tell you why. Because you knew that that old, gray-haired man would not perjure himself for you, and you could not perpetrate this fraud and conspiracy with his assistance.’ That during this dramatic recital, attorney for plaintiff tried to get the ear of the court but could not be heard, and it was impossible for him to get up from the chair in which he was seated, without coming in contact with Mr. Washburne.”
    Mr, John Gibbons, for plaintiff in error.
    Mr. Hempstead Washburns and Mr. Clárenos A. Knight, for defendant in error,
   McAllister, P. J.

We propose to consider but two points arising upon this record, viz.: (1) Whether there was error in the striking out and excluding form the jury, the answer of the witness Elvey, as set out in our statement of the case-(2) Whether there was such misconduct of counsel for defendant, in his address to the jury, as requires a reversal.

As to the first point we are of opinion that the answer of the witness which the court excluded, was material and proper. There was nothing in plaintiff’s declaration to limit her to a particular hole or ' spot in the sidewalk, as being the one which caused the injury. The injury occurred in the night time, the sidewalk was covered with' snow to the depth of about a foot. The street was much traveled, and upon investigation the next 'day, the hole her foot went into could not be located. But the depth down her foot went, and the manner in which it was fastened and held there"—facts which were shown by undisputed evidence, not only tended to prove, but demonstrated that it was not the mere snow that held her so fast, but that her foot had been caught in a hole in the sidewalk itself. Here was the peculiarity of the case; the particular hole or spot could not be jointed out or identified, al though the undisputed evidence was, that it was somewhere along the sixty feet of the sidewalk fronting a certain vacant lot of that width. How, under such circumstances, was it not competent for the plaintiff, upon both the question of notice to and negligence of, the city authorities, as well as of the consequential injury to her, to show that the principal portions of said sixty feet of sidewalk were in a bad condition, having holes into which her foot might have been caught, as it was, and how long such portions had been so, prior to the accident ? We do not regard the point as debatable. The exclusion was error.

The second point may be said to involve two propositions: one, whether the words and conduct of one of the counsel for defendant, as set out in our statement of the case, were improper; and secondly, if so, whether the impropriety was such as to call for a reversal of the judgment.

From our examination of the record, we are of opinion that the statements of said counsel as respected other cases, that this case was based upon fraud and perjury maintained by a conspiracy between Gibbons, plaintiff’s attorney, and Dr. Angear,. was a black mailing scheme to extort money out of the city, that Mrs. Chase was very little interested in the verdict, that the amount of the verdict which the jury might give her would be divided into three equal parts, one third going to Mrs. Chase, one third to Dr. Angear, one third to John Gibbons, were improper, because not warranted by, and without any just foundation in the testimony adduced on the trial.

The remaining question is, were these statements and the conduct of the counsel in making them, sufficient to call for a reversal of the judgment. In answering that question, we shall waive the opportunity f.or homilies upon professional conduct, and endeavor to treat it in a practical way. The fact that plaintiff was injured in the manner and to the degree specified in our statement of the case, was shown by the testimony of the plaintiff herself, by the wife of Dr. Angear, who accompanied her to church and on her return, and by Miss Emily Chase, whom defendant introduced as a witness; about that there was no conflict. Then the evidence on behalf of plaintiff strongly tended to show that the sidewalk in front of said vacant lot had, for months before the falling of the snow which covered it at the time of the accident, been in such had condition as to render it highly probable that it had holes in it of a dangerous character, when covered with snow. The manner of the injury almost forced the conclusion that plaintiff’s foot caught (in some one of those holes. The evidence tending to show notice to the city, was sufficient to go to the jury; and there is no pretense that plaintiff was not in the exercise of ordinary care. Such was the case to be submitted to the jury, when the defendant’s counsel comes to them in the character, real or assumed, of special guardian of the interests of taxpayers, and makes the statements complained of.

There are cogent reasons why appellate courts should be careful and critical in recognizing alleged improper statements of counsel in argument, as affording ground for reversal.

But every case must depend upon its own circumstances. It would seem consistent with the ordinary principles upon which justice is administered, that, if in this case, the statements complained of were material, and this court can see from an examination of the evidence that they were likely to, and probably did, wrongly influence and mislead the jury to return "a verdict against the plaintiff to her manifest prejudice, this court should redress the wrong by reversing the judgment. We think such was the case, and on account of those statements and the other error pointed out, the judgment must be reversed and cause remanded.

Judgment reversed.


text:
    Sarah M. Parker, Ex., etc. v. Lake Shore & Michigan Southern Ry. Co.
    1. Negligence—When case may be taken from joky.—Where the evidence is undisputed as respects the want of ordinary care on the part of the person injured and culpable negligence is clearly shown, the trial judge may decide the question as matter of law, and take the case from the jury; but the evidence must show rashness, culpable negligence of the injured person, so clearly, as not justly or fairly to admit of any other conclusion.
    2. Amendments—Practice.—Where ^the supplemental bill of exceptions, purporting to amend the former one, was ordered signed and sealed long after the time for filing a bill of exceptions had expired, and was filed in this court by leave of court, held, that the practice in such case is to consider the matter open to inquiry, whether such amendment is entitled to any consideration or not; that in this case it was unauthorized and should be totally disregarded.
    Error to the Circuit Court of Cook county; the Hon. Loeik C. Collins, Judge, presiding.
    Opinion filed November 8, 1886.
    Mr. John T. Richards and Mr. John McGaffey, for plaintiff in error.
    Mr. Pliny B. Smith, for defendant in error.
   McAllister, P. J.

This was an action brought hv plaintiff in error, the widow, and as executrix of John C. Parker, deceased, against the defendant railroad company, to recover damages consequent upon the death of said Parker, occasioned, as it was alleged, by the negligence of the defendant.

There was a trial under the plea of general issue, and when plaintiff had put in her evidence and rested, the court, at the instance of defendant’s counsel, directed the jury, by instruction in writing, to find for defendant, which was accordingly done, and judgment having passed against plaintiff, she brings error to this court.

The propriety of that instruction is the only question involved or discussed by counsel.

It is indisputable that the plaintiff sought a recovery upon the ground of mere negligence on the part of defendant; hence, want of ordinary care on the part of the decedent, at the time in question, would defeat a recovery. C., B. & Q. R. R. Co. v. Johnson, Adm., 103 Ill. 512, and cases cited; Calumet Iron and Steel Co. v. Martin, Adm’x, 115 Ill. 358.

The general rule of law is well settled in this State, that the questions of negligence on the part of the defendant, and of want of ordinary care to avoid the injury on the part of the person injured, are questions of fact for the jury.

It is true, that in many cases in our reports, where the evidence has been undisputed as respected the want of ordinary care on the part of the person injured, and culpable negligence was clearly shown, the rule has been recognized, that the trial judge may, in such cases, decide the question as matter of law, and take the case from the jury. But it is always to be borne in mind, that, in order to preserve the province of the jury sacred as against invasion by the court, the evidence must show rashness—culpable negligence of the injured person—so clearly as not justly or fairly to admit of any other conclusion-

Bow, the evidence contained in the original bill of exceptions clearly tended to prove negligence on the part of defendant, as charged in the declaration; but we are of opinion that it did not show want of ordinary care on the part of Parker, the deceased, with that clearness and conclusiveness which would justify the trial judge in taking the case from the jury. For, taking the evidence as it is so presented, if there had been a verdict for the plaintiff, we can not say it would have been the duty of the court below, or of this court, to set it aside on that ground.

The counsel for defendant in error seems to have been conscious that his case needed strengthening, because, after the term had elapsed at which the judgment was entered, and after the time had expired for signing and filing a bill of exceptions, he caused a supplementary bill of exceptions to be signed and sealed by the trial judge, which purported to amend said original bill of exceptions by incorporating further and material evidence therein, as having been given on the trial, of which no mention is made in said original, which expressly states that it contains all the evidence given at the trial.

The judgment was rendered May 21, 1886. That term of May would expire by the third Monday of June. The original bill of exceptions was signed, sealed and filed within the time given by the court, July 13, 1886.

The said supplemental bill of exceptions, purporting to amend the former one, was ordered signed and sealed September 25th, long after the time for filing a bill of exceptions had expired. It is true it was filed in this court by leave of court. Notwithstanding that, the practice in the Supreme Court and in this court is to consider the matter open to inquiry, whether such amendment is entitled to any consideration. On examining the record of said amendment we find that it fails to show any notice to, or appearance by, the opposite party; and it fails to disclose by what such amendment was made. We are of opinion that it was unauthorized and should be totally disregarded. Seig v. Long, 72 Ind. 18; Jones v. The State, 64 Geo. 697; Dougherty v. The People, Ill. Sup. Ct. opinion, filed at Springfield October 6, 1886, unreported.

For the error in taking the case from the jury the judgment will be reversed and cause remanded.

-Judgment reversed.


author: Bailey, J.

text:
    George Hunt, Att’y Gen., etc., v. The Chicago and Dummy Railway Co.
    I. Attorney genebal—Common law powebs.—The court is of opinion that there is nothing in onr present constitution or statutes which necessitates a construction which would exclude the attorney general from the exercise of common law powers in addition to those conferred by the statute. As it was a part of the attorney general's common law duty to institute proceedings by information in chancery to restrain and abate public nuisances and purprestures, this information in chancery, to restrain a horse and dummy railway company from constructing or operating a railway upon certain streets of Chicago, was properly filed by the attorney general.
    2, Repugnant statutes—Repeal.—If two statutes are clearly repugnant to each other, the last enacted operates as a repeal of the former; and a subsequent statute revising the whole subject of the former one and intended as a substitute for it, although it. contains no express woids to that effect, operates as a repeal of such former statute.
    3. House and dummy railroads—Petition op adjoining property owners.—The provisions of subdivision 90, section 1, article 5, of the act to provide for the incorporation of cities and villages, so far as they apply to horse and dummy railroads incorporated under the general law, are repealed by the act of 1874 in relation to horse and dummy railroads, and as, under that act, no petition of the adjoining property owners is necessary, the information in this case presented no ground for equitable relief.
    Error to the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Opinion filed November 8, 1886.
    Mr. C. Beckwith, for plaintiff in error; that the “ act in regard to horse and dummy railroads” approved March 19, 1874, did not operate as a repeal of the city charier, cited Starr & Curtis’ Stat., 472.
    The bill was properly filed by the attorney general: R. S. Ch. 14, § 4.
    Mr. Francis Adams, for defendant in error;
    that the attorney general is not legally authorized to file the bill, cited § 1, Art. 5, of the Constitution of Ill.; Commonwealth v. Erie & N. E. R. R. Co., 27 Penn. St. 351; City of Quincy v. Jones, 76 Ill. 231; Field v. People, 2 Scam. 79.
    The act of 1874t in relation to horse and dummy railroads is a separate and independent act, complete in itself, and intended as a substitute for all previous legislation in regard to its subject-matter.
    A subsequent statute reversing the whole subject of a former one and intended as a substitute for it, although it contains no express words to that effect, operates as a repeal of the former: I & M. Canal v. Chicago, 14 Ill. 334; Culver v. Third Nat. Bk. 64 Ill. 528; Andrews v. People, 75 Ill. 605; Devine v. Com’rs, 84 Ill. 590; Dingmanv. People, 51 Ill. 277; Bartlett v. King, 12 Mass. 537.
   Bailey, J.

This was an information in chancery, filed by George Hunt, Attorney General of the State of Illinois, on the relation of John McConnell, George McConnell and Benjamin F. McConnell, to restrain said company from constructing or operating a railway upon certain streets of the city of Chicago. The information represents that said company claims to be a corporation organized under the general laws of the State, with authority to construct, maintain and operate a railway in the county of Cook; that it also claims that an ordinance was passed by the city council of the city of Chicago, April 21,1884, authorizing and licensing it to lay down, operate and maintain a double track railway, with all necessary and convenient turn-outs, turn-tables, side-tracks and switches in, upon over and along certain streets of said city, to wit, that portion of Adams street, including the bridge across the Chicago river, lying between Clark street and a point five hundred feet west of Desplaines street, and also certain portions of various other streets, particularly described ; that said company, claiming that it has a valid license under and by virtue of said ordinance, entered upon Adams street between Fifth avenue and Franklin street on Sunday, the 26th day of April, 1885, and has excavated portions of said street and laid track, ties and rails for the purpose of constructing a railway in said street; that said railway constitutes an obstruction, to a greater or less extent, of the travel in said streets; that said company proposes to occupy the whole of Adams street between Clark street and Desplaines street in like manner, and also to construct railway tracks in the other streets mentioned in said ordinance, and to lay rails across the bridge on Adams street over the Chicago river; that the city of Chicago is organized under the general law of 1872, entitled “An act to provide for the incorporation of cities and villages,” having become so organized in the month of May, 1875; that a petition of the owners of the land representing more than one half of the frontage of so much of Adams street as was sought to be used for said railway was not made or presented to the city council before a vote was taken on the passage of said ordinance, and that the city council therefore had no power to pass the same, and that said ordinance is null and void; that the relators are residents and taxpayers of the county of Cook, and are owners of a certain lot of land with the buildings thereon, situated on the corner of Adams street and Fifth avenue, which has a frontage of 114 feet on Adams street and abuts thereon; that the construction of said tracks on Adams street in front of said property interferes with the ingress, egress and access to said property by the owners thereof, and damages their said property, and that said company has not paid any damages to owners of property abutting upon said streets or any of them, and that he, said attorney general, has been requested by said property owners and tax payers to file this information. By way of supplement to said information it is alleged that, on the 4th day of Hay, 1885, said city council passed an ordinance purporting to authorize said company to lay down and operate a double-track railway upon that portion of Adams street lying between Clark street and Hichigan avenue, upon certain terms and conditions therein mentioned, and that said company now claims the rights, privileges and franchises therein mentioned, to lay down, maintain and operate a railway in the street mentioned in said ordinance; that no petition of the property owners abutting upon that portion of Adams street mentioned in said ordinance was made or presented to the city council for the passage of such ordinance, and it is therefore insisted that said ordinance is null and void for want of such petition and of power in said council to pass it. The information prays for a decree perpetually enjoining and restraining said company from constructing or operating any railway under and by virtue of either of said ordinances, and for such other and further relief as may be equitable and just. To this information said company interposed a demurrer, which was sustained by the court, and said information was thereupon dismissed for want of equity, and the attorney general brings the record to this court by writ of error.

One of the points raised on demurrer, and now presented for our consideration, is, whether the attorney general is authorized by law to prosecute this information. The counsel for the defendant in error, in maintaining the negative of this question, urges that the office of attorney general, as it exists in this State, is a mere creature of the constitution, and that all the powers and duties pertaining to the office are those expressly conferred by that instrument and the statutes passed in pursuance thereof. On the other hand it is contended that the attorney general is an officer known to the common law, and exercising and performing various common law powers and duties beyond those expressly prescribed by statute, among which is the power to prosecute informations and bills in chancery on behalf of the State to prevent or abate purprestures and public nuisances.

The constitution of 1870 divides the powers of the State government into three distinct departments, and among the officers which it declares shall constitute the executive department, the attorney general is included; and it provides that the several officers constituting that department “ shall perform such duties as may-be prescribed by law.” Since the adoption of the constitution the general assembly has passed the “ Act in regard to Attorney Generals and States’ Attorneys,” in which, after prescribing various specific duties for the attorney general, it is provided that he shall “ attend to and perform any other duty which may, from time to time, be required of him by law.” In addition to this, various other statutes have been passed in relation to different subjects, in which other specific duties have been imposed upon the attorney general, but among these various specifications none can be found, we think, which can be held to include the duty or power to institute and prosecute a suit of the nature of the one now under consideration. Indeed, we do not understand the counsel for the attorney general as attempting to derive such power from any express statutory grant. Can it then be derived from the common law ? Or the question may be put in the broader form, is the attorney general vested with any common law powers not specifically conferred by statute ?

In England the office of attorney general has existed from a very early period, and has been vested by the common law with a great variety of duties in the administration of government. The attorney general was the law officer of the crown? and its only legal representative in the courts. Rex v. Austen, 9 Price, 142; Attorney General v. Brown, 1 Swanst. 294; Rex v. Wilkes, 4 Burr. 2570. It might be difficult to enumerate all the powers vested in the attorney general at common law, but it is sufficient for our present purpose to say that it was unquestionably a part of his common law duty to institute proceedings by information in chancery to restrain and abate public nuisances and purprestures. People v. Vanderbilt, 26 N. Y. 287; People v. Miner, 2 Lans. 396; Attorney General v. Richards, 3 Anstruther, 753; 2 Story’s Eq. Juris., §§ 922, 923; Wood on Nuisances, § 78, and cases cited. Upon the organization of governments in this country, most if not all of the. commonwealths which derive their system of jurisprudence from England adopted the office of attorney general as it existed in England, as a part of the machinery of their respective governments. The prerogatives which pertain to the crown in England are here vested in the people, and the necessity for the existence of a public officer charged with the protection of public rights and the enforcement of public duties by proper proceedings in the courts of justice, is just as imperative here as there. The duties of such an office are so numerous and varied that it has not been the policy of the legislature to attempt the difficult task of enumerating them exhaustively, but they have ordinarily been content, after expressly defining such as they have deemed the most .important, to leave the residue as they exist at common law, |so far as applicable to our jurisprudence and system of government.

In case of each of the successive territorial governments of the territories of which Illinois formed a part before its admission into the Union as a State, the office of attorney general existed, and our investigations, so far as we have been able to carry them, bring us to the conclusion that it was a common law office, having powers and duties analogous to those of the attorney general in England, so'far as applicable, with the addition of such duties as were imposed by territorial legislation. The constitution of 1818 recognized the existence of the office, by disqualifying the person holding it from becoming a member of the general assembly, but made no provision as to the nature of his duties or the mode of his appointment. The office, however, was continued by the general assembly substantially as it had previously existed, the election being made by that body, until the adoption of the constitution of 1848. That constitution recognized the existence of the office in the same manner as the constitution of 1818, but as it prohibited the election or appointment of any officer by the general assembly, the office ceased to exist until the passage of the act of February 27, 1867, creating the office of attorney general, and prescribing his duties, that act being, so far as it relates to the powers and duties of the office, substantially identical with our present statute.

There is nothing in our present constitution or statutes which necessitates, in our opinion, a construction which would exclude the attorney general from the exercise of common law powers in addition to those conferred by the statute. The constitution authorizes him to perform such duties as may be prescribed by law. It is said that the word “prescribed” can properly be held to refer only'to the statutory law—the lex scripta. This, plainly, is too narrow an interpretation of the word. It will be remembered that Blaekstone defines municipal law to be, “a rule of civil action prescribed by the supreme power of the State, commanding what is right and prohibiting what is wrong,” and that the learned author thereupon proceeds to divide the law as thus defined into the lex scripta and the lex non scripta. Among the definitions of the word “ prescribe ” given by "Webster, are these: “To give law; to direct; to dictate; to give as a guide, direction or rule of action;” either of which is quite as applicable to the unwritten as to the written law. We see, then, no difficulty in interpreting the constitutional provision that the attorney general shall perform such duties as may be prescribed by law, as meaning that he shall perform such duties as shall be prescribed by any law, statutory or otherwise, by which the duties of the attorney general, as that officer is known to our jurisprudence, are imposed and defined.

This view is further supported by the provisions of the statute in re'ation to the duties of the attorney general. That, as has already been stated, provides that, in addition to certain duties therein specified, he shall attend to and perform any other duties which may from time to time he required of him by law. The common law of England, having been expressly adopted in this State, is as much a part of our law, whenever it is applicable, and so far as it has not been changed by statute, as are the statutes themselves; and a duty required of the attorney general by the rules of the common law is as much a duty “ required of him by law ” as though it were imposed by the express mandate of a statute.

In other States it has been frequently held that where the duties of the attorney general are prescribed by statute there are still common law powers incident to the office which are not derived from the statute. It is so held in Parker v. May, 5 Cush. 336, in relation to the power to institute a proceeding for the enforcement of a public charity. In People v. Miner, 2 Lansing, 396, it was held that the attorney general has the powers belonging to that office at common law, and such additional powers as the legislature has conferred upon him, and that by virtue of his common law powers he was authorized to interfere to restrain corporate action, where the act complained of would produce a public nuisance or tend to a breach of a trust for charitable uses. So in the case of the People v. Tweed, 13 Abb. Prac. R. N. S. 25, the authority of the attorney general to maintain an action to recover moneys unlawfully raised by public officers of a municipal corporation and converted to their own use, is sustained on the same principle. See also, People v. Vanderbilt, 26 N. Y. 287; Attorney General v. Moltier, 26 Mich. 444; Attorney General v. City of Detroit, Id. 262.

The same view seems to us to have been taken by our own Supreme Court, so far as that tribunal has had occasion to intimate an opinion upon the subject. Thus, in Newberry v. Blatchford, 106 Ill. 584, which was a suit in chancery to obtain a construction of a will, by which the testator gave one half of his estate to found and endow a public charity, and directed the distribution of the residue among his heirs at law, the power and duty of the attorney general to interpose to prevent the misappropriation of a fund held in trust for a public charity is clearly recognized. The court say: “ The doctrine, no doubt, is, that in all.bills asking the advice or direction of a court of equity as to the administration of a public charity, and especially where waste or mismanagement is apprehended, or where the decree would affect the interests of the 'cestui que trust, the attorney general or other public officer whose duty it may be to have a care of such matters, is a proper party, either as complainant or defendant, and courts not unfrequently hesitate to decree concerning a public charity unless the general law officer representing the donees is a party in some way. * * * Had it appeared that the trustees were misappropriating the trust fund, it would no doubt have been the duty of the attorney general to interpose for its preservation. It is only where the parties having charge of the fund unite in an abuse of their trust, and there is no one having a right to sue in his own name concerning it, as is the case with regard to a public charity, that the suit must, eta necessitate rei, be instituted by the attorney general.”

It must be admitted that there is no statute imposing upon the attorney general the duty of instituting or becoming a party to any legal proceedings for the protection or preservation of funds held in trust for a public charity. Whence, then, arises such duty? Manifestly from the principles of the common law, which make the attorney general the proper representative of the people of the State in all courts of justice, and charge him with the official duty of interposing for the protection and preservation of the rights of the public whenever those rights are invaded, and there is no other adequate or available means of redress.

The case of Attorney General v. C. & E. R. R. Co., 112 Ill. 520, was an information in the nature of a quo warranto, brought by the attorney general to require the defendant to show by what warrant it claimed to exercise the right, privilege and franchise, among other things, of constructing and operating its railroad across the north branch of the Chicago river and over certain streets and alleys of the city of Chicago. The defendant set up in its answer, that the attorney general, on behalf of the people, had previously filed an information in chancery against said defendant and another railroad company to restrain the defendant from constructing its said railroad, the same issues being made in that suit as in the quo warranto suit, and that upon the trial of said chancery suit, upon pleadings and proofs, a final decree was entered in favor of the defendant, holding that said defendant had legal authority, under its charter and the ordinances of the city of Chicago, to construct and operate its said railroad across the north branch of the Chicago river and over said streets and alleys. It was held that the court had jurisdiction of the subject-matter, and the parties in the chancery suit, and that the decree in that case was conclusive of the rights of the parties in the quo warrraMo proceeding. It is clear that this conclusion could only have been reached upon the theory that the attorney general had authority to institute the chancery suit,' an authority which is not given by statute, and which must therefore be derived from the principles of the common law. It may be observed that the chancery suit which is thus sustained by the Supreme Court is precisely analogous in. principle with the suit at bar, and the authority of the attorney general to bring that suit, necessarily involves the authority to bring this. We are of the opinion, then, that the institution of the present suit was clearly within the legal authority of the attorney general.

But one question is raised by the information which it is necessary for us to consider,"viz., whether, the city council of the city of Chicago had the power to grant to the defendant the right to lay down its railroad tracks in the streets mentioned in the information, in the absence of a petition of the owners of the land representing more than one half of the frontage of so much of said streets as is sought to be used for railroad purposes. The information represents that no such petition was presented to the city council prior to the passage of the ordinances licensing the defendant to lay down its railroad tracks in said streets, and such averment being admitted by the demurrer, must be taken as true.

The twenty-fourth subdivision of section 1, article 5, of the “act to provide for the incorporation of cities and villages,” in force July 1,1872, under which the city of Chicago is organized, gives power to the city council, “ to permit, regulate or prohibit the locating, constructing or laying a track of any horse railroad in any street, alley or public place; but such permission shall not be for a longer term than twenty years.” The ninetieth subdivision of the same section is as follows: “ The city council or board of trustees shall have no power to grant the use of, or the right to lay down, any railroad tracks in any street of the city, to any steam or horse railroad company, except upon a petition of the owners of the land representing more - than one half of the frontage of the street or so much thereof as is sought to be used for railroad purposes.”

The “ act concerning corporations,” in force July 1, 1872, provides, among other things, for the incorporation of “horse and dummy railroads,” and section twenty-eight of said act is as follows : Nothing in this act shall be construed to allow the construction or operation of any street railroad in any city, town or incorporated village, without the consent of the local authorities thereof.” This latter section follows and in substance re-enacts section 4, article 11, of the constitution. Thus stood the law prescribing the terms and conditions upon which the city council of the city of Chicago had the power to grant the use of the streets of the city for railroad purposes, until the passage of the “ act in regard to horse and dummy railroads,” in force July 1, 1874. The first section of that-act is as follows:

“Any company which has been, or shall be incorporated under the general laws of this State, for the purpose of constructing, maintaining or operating any horse or dummy railroad or tramway, may enter upon and appropriate any property necessary for the construction, maintenance and operation of its road, and all necessary siding, side-tracks and appurtenances, and may, subject to the provisions contained in this act, locate and construct its road upon or over any street, alley, road or highway, or across or over any waters of this State, in such manner as to not unnecessarily obstruct the public use of such street, alley, road or highway, or interrupt the navigation of such waters.” .

Section 2 of said act provides for the mode of making compensation for private property taken or damaged, and section 3 is as follows:

“No such company shall have the right to locate or construct its road upon or along any street or alley, or over any public ground in any incorporated city, town or village, without the consent of the corporate authorities of such city, town or village, nor upon or along any road or highway or upon any public ground without any incorporated city, town or village, except upon the consent of the county board. Such consent may be granted for any period, not longer than twenty years, on petition of the company, upon such terms and conditions, not inconsistent with the provisions of this act, as such corporate authorities or county board, as the case may be, shall deem for the best interests of the public; provided no such consent shall be granted, unless at least ten days public notice of the time and place of presenting such petition shall have been first given by publication in some newspaper published in the city or county where such road is to be constructed, and except upon the condition that the company will pay all damages to owners of property abutting upon the street, alley, road or highway or public ground upon or over which such road is to be constructed, which they jnay sustain by reason of the location or construction of the road; the same to be ascertained and paid in the manner provided by law for the exercise of the right of eminent domain.”

The question is, whether the provisions of subdivision 90, section 1, aiticle 5, of the act to provide for the incorporation of cities and villages, so far as they apply to horse and dummy railroads incorporated under the general law, is not repealed by the act in relation to horse and dummy railroads. While the repeal of statutes by implication is not favored, still, it is a familiar principle that, if two statutes are clearly repugnant to each other, the last enacted operates as a repeal of the former; and also, that a subsequent statute revising the whole subject of the former one, and intended as a substitute for it, although it contains no express words to that effect, operates as a repeal of such former statute. Culver v. Third National Bank, 64 Ill. 528; People v. Jeahue, 7 Eastern Reporter, 290, We are of the opinion that the latter of the two principles here stated, at least, applies to the statutes under consideration.

It seems to have been the intention of the legislature, in passing the horse and dummy railroad act, to provide a complete code governing the location and construction of these two species of railroads, both within and outside the corporate limits of cities and villages, and to fix the terms and conditions upon which such railroads may be permitted to occupy the streets, alleys and public grounds within such municipal coi - porations, and the roads and highways beyond their boundaries. TJp to that time one rule had prevailed in case of cities and villages organized under the general law, and other rules different from that and different from each other in case of cities and towns organized under special charters, and a still different rule in case of roads and highways outside of incorporated cities, towns' and villages. In passing said act, the legislature furnished a complete, simple and uniform code for the location and construction of such railroads. Whatever may have been the conditions imposed by previous legislation, the first section of this act declares that horse and dummy railroad companies organized under the general incorporation law, may, subject to the provisions contained in said act, locate and construct their roads upon or over any street, alley, road or highway. The obvious meaning of this provision is, that the only limitations upon the right of such companies to locate and construct their roads upon or over any street, alley, road or highway, shall be those provided by the act itself.

The third section of the act requires the consent of the proper municipal authorities to the use of any street or alley for railroad purposes, and provides the mode of obtaining such consent and the conditions upon which it may be granted. Such consent may be granted on petition of the company, on such terms and conditions as the authorities granting it shall deem for the best interests of the public. The proviso prohibits such consent unless ten days public notice of the time and place of presenting the petition shall have been given by publication in some newspaper in the city or county, and requires that the consent shall be upon the condition that the company will pay all damages to the owners of property abutting on the street. These provisions, at least so far as they relate to the mode of obtaining the consent of the municipal authorities to the use of streets, alleys, etc., for railroad purposes, seem to us to be full and complete, and it is manifest, we think, that they were intended by the legislature as a complete revision of the statutes applicable to that subject.

There is also a clear repugnance between subdivision 90, section 1, article 5, of the act to provide for the incorporation of cities and villages, and the horse and dummy railroad act. The former act, in effect, prohibits the use of a street for railroad purposes without a ¡petition of the owners of more than one half of the land abutting on the street, while the latter act provides that such use may, subject to the provisions of said act, be made of any street, the act containing no provision requiring any petition of the owners of the property abutting on the street. The' former act provides that the consent of the municipal authorities to the use of the street for railroad purposes shall not be given except upon such petition of the majority of the abutting property owners, while the latter act provides that it may be granted upon petition of the railroad company. The latter act in no way contemplates the presentation to the city council of any petition of the abutting owners, but does contemplate and provide. for tlie presentation by the company of its jietition; and of public notice of the time and place of snch presentation. The modes of procedure contemplated by the two acts seem to be essentially different, and the safeguards which they throw around the rights of adjoining property owners are also different. The former act required the petition of the majority of the property owners in advance before consent could be given, but it required ho publicity and afforded no opportunity for the minority to appear and be heard before the city council, however unfavorably their rights might be affected. The latter act, in addition to vesting the city council with the broadest discretion to impose any terms and conditions which, in their opinion, will best subserve the public interests, requires public notice of the time and place at which the action of the municipal authorities is to be invoked, so that all property owners and others interested may be present, if they see fit. with their reasons and remonstrances against the granting of the company's petition. Which of these modes of procedure is best calculated to subserve and protect the rights and interests of property holders and the public, wras a matter for legislative consideration. The general assembly, in the latest expression c" the legislative will, has prone’meed in favor of the latter, a. the courts can only give efficacy to the will which it has ti expressed.

Being of the opinion that, under the present statute, no petition of the adjoining property owners was necessary, it follows that the information presented no ground for equitabe relief, and that the demurrer was properly sustained. The decree will be affirmed.

Decree affirmed.