author: Mr. Justice Boggs

text:
    Hayes Pump & Planter Company, Appellee, v. T. S. Tickers, Appellant.
    1. Appeal and error, § 96é

      —what errors considered on appeal. A court of review will consider only errors based on the record filed in the reviewing court.
    2. Appeal and error, § 711

      —what matters not part of record on review. Matters not included in the bill of exceptions which is signed and sealed by the trial judge are not part of the record' on review.
    3. Appeal and error, § 800

      —when objection that verdict against weight of evidence not considered. The objection that a verdict is against the manifest weight of the evidence will not be considered by a court of review where the bill of exceptions does not include the motion for a new trial and the ruling thereon, such motion and ruling being necessary to raise such objection on review.
    Appeal from the Circuit Court of Pope county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Charles Durfee, for appellant.
    John W. Browning, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

This was an action in assumpsit brought by appellee, Hayes Pump & Planter Company, against T. S. Vickers, to recover the purchase price of certain agricultural implements sold by appellee to T. S. Vickers, a retail dealer in agricultural implements. The amount claimed to be owing is $269.24.

The consolidated common count only was filed. Appellant filed a plea of the general issue, with notice of special matter of defense. A trial was had, finding for the appellee, and judgment was rendered for appellee in the sum of $193.24. From that judgment this appeal was taken.

Appellant contends, first, that the verdict of the jury was not sufficiently certain to warrant the court in entering judgment thereon; second, that said purported verdict and judgment is contrary to the manifest weig’ht of the evidence.

It is a fundamental principle of law in this State that in courts of review only those errors can he considered which are based upon the record filed in the reviewing court. This principle is so well recognized that it needs no citations of authority to support it. The record in this case as filed wholly fails to bring before this court the verdict of the jury, the instructions of the court, the motion for a new trial, the ruling of the trial court on said motion. The bill of exceptions as signed by the trial judge includes the evidence taken on the hearing, but does not include the instructions, the verdict of the jury, the motion for a new trial and the ruling of the trial court thereon. Following the certificate of the trial judge are certain purported instructions, purported verdict of the jury and certain amplified minutes of the clerk showing hearing of the cause, the motion for new trial and the ruling on the same, a motion in arrest of judgment and ruling on the same. However, it has frequently been held by the courts of this State that in order to malee these matters of record it is necessary that they be included in the bill of exceptions, and be signed and sealed by the trial judge.

The purported verdict complained of and which as it appears from the minutes of the clerk is as follows: “We the jury find the issue for the plaintiff and assess the plaintiff’s damages at 193.24,” and it is contended by appellant that this verdict is insufficient, because the dollar sign is not placed in front of the figures. The trial court treated said verdict as a verdict for $193.24, and entered judgment accordingly.

The verdict is not properly before us by reason of the fact that it was not included in the bill of exceptions, and we therefore express no opinion as to the sufficiency of the same. East St. Louis Elec. St. R. Co. v. Cauley, 148 Ill. 490; James v. Dexter, 113 Ill. 654; Graham v. People, 115 Ill. 566.

Appellant’s contention that the verdict is against the manifest weight of the evidence cannot be considered by this court for the reason that the bill of exceptions, as above set forth, does not include the motion for a new trial and the ruling'of the court thereon, which are necessary to raising that question in this court.

It therefore follows from what we have said, that the appellant not having a record of the rulings of the court complained of in the trial of said cause, that the judgment of the trial court must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Samuel Knight, George Moser and James LaMar, Commissioners, et al., Appellants, v. Partridge Drainage District No. One et al., Appellees.
    1. Roads and bridges, § 154

      —when corporate authorities of road crossing drainage ditch required to rebuild bridge. Hurd’s Rev. St., ch. 42, sec. 55 (J. & A. If 4436), requiring that the corporate authorities of a road or railroad crossing a ditch or drain constructed by drainage commissioners along a natural, depression, channel or water course in a levee district to construct bridges, culverts and other works crossing such ditch or drain at their own expense, held applicable to the reconstruction of bridges on a public highway, which bridges were removed by drainage commissioners in the construction of a ditch along a natural water course in a levee district
    2. Roads and bridges, § 154

      —constitutionality of statute relating to construction of bridges over drains and ditches in levee district. Hurd’s Rev. St., ch. 42, sec. 55 (J. & A. If 4436), relating to the construction, repair and replacement of bridges, culverts and other works across ditches and drains along the line of a natural depression, channel or water course in a levee district is constitutional.
    3. Roads and bridges, § 154

      —what distinction made by statutes relating to bridges over drains and ditches as to liability for construction of bridges. The statute relating to bridges over ditches and drains constructed by drainage districts make a distinction between bridges in farm districts and in levee districts, the drainage district being required by Hurd’s Rev. St., ch. 42, secs. 40 and 40% (J. & A. ¶¶ 4516, 4517) to construct such bridges in farm districts whether the route of the ditch or drain be natural or artificial, while section 55 (J. & A. ¶ 4436) of the same chapter requires that bridges crossing such a ditch or drain constructed along the line of a natural depression, channel or water course in a levee district be constructed at the expense of the corporate authorities of the road or railroad crossing such ditch or drain.
    4. Roads and bridges, § 154*—how statute requiring townships to build bridges over artificial drainage ditches unconstitutional. That portion of Hurd’s Rev. St., ch. 42, sec. 40% (J. & A. K 4517), allowing a drainage district to sue townships for the cost of bridges constructed by such district over ditches or drains constructed by them in farm districts as required by section 40 of the same chapter (J. & A. K 4516) is unconstitutional in so far as such statute attempts to impose on townships the duty of building bridges over artificial drainage ditches.
    5. Mandamus, § 65

      —when demurrer to petition to compel commissioners of drainage district to replace bridge over drainage ditch properly sustained. In a petition for mandamus to compel the commissioners of a drainage district to replace bridges on a highway, which bridge was removed by respondents in constructing a drainage ditch along the line of a natural water course in a levee district, where petitioners were highway commissioners of the township in which the bridges were removed, a demurrer to the petition held properly sustained, and the petition properly dismissed.
    Appeal from the Circuit Court of White county; the Hon. E. E. Newlin, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    James M. Endicott, for appellants; Joe A. Pearce, of counsel.
    Conger, Pearce & Conger, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

       See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

This was an action brought by the Commissioners of Highways of the Town of Phillips, White County, Illinois, and the Town of Phillips, County of White, State of Hlinois, against Partridge Drainage District No. One, White County, Illinois, and Solomon B. Hall, Henry Bodenberg and Sherman McMurtry, Commissioners of Partridge Drainage District, asking for a writ of mandamus to compel the said commissioners of the drainage district to build and maintain certain bridges on the public highway across the drainage ditch constructed by them, these bridges having been tom out by said commissioners in the construction of said ditch in and along a certain natural water course known as “Brown Branch.”

Appellants take the position by their petition that a levee drainage district should be compelled to build the bridges over its drains crossing public highways in natural water courses, while appellees by their demurrer deny this proposition, and this is the sole question raised here on the record.

The third proviso to section 55 of chapter 42 of Hurd’s Bevised Statutes known as the Levee Act (J. & A. ¶ 4436) is as follows: “The sum assessed against either of said corporations (railroad or township) shall not include the expenses of constructing, erecting or repairing any bridge, embankment or grade, culvert or other work of the roads of such corporations, crossing any ditch or drain, constructed on the line of any natural depression, channel or water course; but the corporate authorities of such road or railroad are hereby required, at their own expense, to construct such bridge, culvert or other work, or to replace any bridge or culvert temporarily removed by the commissioners in doing the work of such district. Full power and authority is hereby given the drainage commissioners to remove such bridges or culverts for the purposes aforesaid, if they, in their judgment find it necessary.”

This provision, if constitutional, it would seem would be applicable to this case, and its effect, if given its ordinary meaning, would be against the contention of appellants.

Appellants ’ petition shows that the drain in question crosses the highway on the line of a natural water course, and we can see no valid reason why the provisions of section 5.5 should not operate.

The provisions of section 55 were under consideration in the case of Heffner v. Cass and Morgan Counties, 193 Ill., page 439, and in that case it was held that said act was constitutional and that it applied to public corporations having control of public highways.

In the Heffner case, supra, the provisions of said section 55, and especially the last provision thereof, being the one above referred to, were fully discussed by the Supreme Court, and the effect to be given to said section was pretty clearly laid down.

The distinction between bridges in farm and levee districts must be carefully maintained. In farm districts, sections 40 and 40½ (J. & A. ¶¶ 4516, 4517) require the drainage district to build the bridges in all cases, whether the route be natural or artificial, and then allow such drainage district to sue the townships for the costs of such bridges and make necessary a levy of taxes to pay the same; while the Levee Act provides that the commissioners may remove bridges across the drains of the district where it crosses a highway on the line of any natural depression, channel or water course, and provides that the corporate authorities of such road shall rebuild the bridge made necessary thereby.

The Supreme Court has held this method indhe Farm Drainage Act unconstitutional and has further held that the Legislature cannot constitutionally place the duty of building bridges over artificial drainage ditches on the township.

When the authorities cited by counsel for appellants are carefully examined, they will be seen to be not in conflict with the proviso of section 55 of the Levee Act.

Counsel for appellants cite and rely on the cases of Highway Commissioners v. Drainage Commissioners, 246 Ill., page 388, and People v. Fenton & T. R. Co., 252 Ill., page 372. In the case of Highioay Commissioners v. Drainage Commissioners, supra, it was held that the duty rested on the drainage commissioners to build the bridges on highways across their drainage ditches irrespective of whether it was an artificial or a natural ditch. This case arose under the Farm Drainage Act and construes sections 40, 40% and 41 (J. & A. ¶¶ 4516-4518) thereof, which requires the drainage district to build the bridges and then sue the highway commissioners for the same, and of course under such circumstances both in justice and under the very terms of the Farm Drainage Statute the duty rested on the drainage commissioners to build the bridges in the first place. It is further to he distinguished from the case at bar in that it is not a case of original construction but is a case where the district had theretofore been established, and the highway commissioners had built the bridge and afterwards the drainage district sought to enlarge the bridge, and this distinction is made clear on page 393 of the opinion.

In the case of People v. Fenton & T. R. Co., supra, while some language is used by the ’Supreme Court which may seem to support the contention of appellants, still a careful reading of this case will disclose that the drainage ditch in question was not in the natural course of the stream, but was a new ditch, and the court in that case recognized the distinction between a natural and artificial ditch as applied to the duty of drainage commissioners in reference to the bridges over the same.

Appellants also contend that because the enlarging of the natural ditch by the drainage district across the highways in question would involve the necessity of building larger bridges, that therefore the ditch should be held to be an artificial one, and that the drainage district would therefore be liable to construct the bridge. This, however, is not a new question but was directly involved in the case of Heffner v. Cass and Morgan Counties, supra, and the holding of the Supreme Court in that case after carefully considering this question was against the contention of appellants.

The provision of section 55 of the Levee Act as construed by our Supreme Court, we think, is squarely against the contention of appellants, and we aré, therefore, of the opinion that the Circuit Court was right in sustaining the demurrer to appellants’ petition for a writ of mandamus and in dismissing said petition, and the judgment of said court is hereby affirmed.

Affirmed.


text:
    Miles F. Bixler, trading as Miles F. Bixler Company, Plaintiff in error, v. T. A. Henson, Defendant in Error.
    (Not to be reported in full.)
    Error to the County Court of Franklin county; the Hon. Thomas J. Layman, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded.
    Opinion filed December 1, 1915.
    Statement of the Case.
    Suit by Miles F. Bixler, trading as Miles F. Bixler Company, plaintiff, against T. A. Henson, defendant, to recover the purchase price of goods sold. From a judgment for defendant, plaintiff brings error.
    The contract of sale was evidenced by a written order signed by the defendant containing a provision, which was brought to his attention, that the" seller’s agent had no authority to change or add to the written terms of the sale except by writing on the original order which was subject to the acceptance of the seller.( At the defendant’s request the plaintiff’s agent verbally guaranteed delivery by a certain date and assured the defendant that such agreement would be as binding on the seller as though incorporated in the written order, j The goods not having been delivered at the time agreed upon, the defendant refused payment.
    Abstract of the Decision.
    1. Principal and agent, § 108

      —when parol agreement by agent varying contract not binding on principal. Where a written order for goods signed by the purchaser provides that no alteration or extension of the terms of sale therein set out shall he binding on the seller unless incorporated in writing in the order and accepted by him, a parol agreement by the seller’s agent guarantying delivery by a certain date is not binding on the seller.
    2. Principal and agent, § 169

      —when agent liable on unauthorized contracts. In so far as agreements and guaranties of an agent are beyond the implied scope of his authority, they are his personal obligations and not those of his principal.
    3. Fraud, § 19

      —when verbal promise by agent varying contract does not constitute fraud. An assurance by the agent of the seller to the purchaser that an oral agreement varying the terms of sale contained in a written order for goods will be binding on the seller, notwithstanding a provision in such order that no alteration or extension of the terms thereof will be binding unless incorporated therein in writing and accepted by the seller, does not constitute such fraud as will invalidate the contract.
    Thomas I. Galloway, for plaintiff in error.
    R. E. Smith and Nealy I. Glenn, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Mary Noonan, Administratrix, Appellee, v. Philip A. Maus, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Negligence, § 182

      —when evidence of habits of injured person admissible to prove due care. While the general rule is that where there are eyewitnesses to an accident, testimony as to the habits of the person injured is not admissible for the purpose of proving due care on his part, yet where eyewitnesses are lacking to some part of an accident, it is proper to admit evidence of the careful habits of the party injured for his own safety and of his skill and experience in driving.
    2. Negligence, § 208

      —when instruction on manner of proving due care and caution for one’s safety proper. On the issue of contributory negligence, it is proper to instruct the jury that due care and caution for one’s own safety are not necessary to be proven by direct and positive evidence, but may be proven also by facts and circumstances appearing on the trial.

      Appeal from the Circuit Court of Monroe county; the Hon. Louis Bernreuteb, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Mary Noonan, administratrix of the estate of Dennis Noonan, deceased, plaintiff, against Philip A. Mans, defendant, to recover damages for the death of the plaintiff’s intestate caused by the defendant’s negligent operation of his automobile. From a judgment of $2,500 for the plaintiff, defendant appeals.
    Stonewall J. Walton and Oliver Sentí, for appellant.
    A. C. Bollinger and D. J. Sullivan, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

3. Automobiles and garages, § 3 —when instruction as to duty of driver of automobile to give warning proper. It is proper to instruct the jury that it is the duty of a driver of an automobile to give reasonable warning of his approach when meeting teams on the public highway though the only evidence of lack of warning is negative.

4. Evidence, § 465 —what is comparative weight of positive and negative testimony. While negative testimony is not of as much weight as positive testimony, it is proper to be considered by the jury.

5. Instructions, § 96 —when instruction on credibility of witnesses erroneous. An instruction that: “The jury are instructed that they are the sole judges of the credibility of the witnesses, and if they find and believe from the evidence that any witness had testified falsely as to any material fact, they are at liberty to disregard all the evidence of such witness,” is properly refused where it fails to add, “except in so far as their testimony may be corroborated by other credible witnesses, or by the facts and circumstances appearing on the trial,” and also omits the element of “wilfulness.”

6. Trial, § 99 —when objection should be made to incompetent testimony. Specific objection should be made to testimony for its incompetency at the time it is offered rather than to wait until it is all in and then move to exclude it.


text:
    George S. Richmond, Appellant, v. Mary Conner, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Judgments, § 78

      —when judgment by confession will be opened after term. The courts of law exercise equitable control over judgments by confession and may open them after the term at which they were rendered has closed and another term has intervened before motion.
    2. Appeal and errob, § 1414

      —when findings of trial court not disturbed on appeal. Where the evidence is conflicting, the findings of the trial judge, a jury having been waived, will not be disturbed where no errors of law have intervened unless such findings are against the manifest weight of the evidence, even though the Appellate Court cannot say that its finding on the evidence as disclosed by the record would have been the same as that of the trial court.
    Appeal from the Circuit Court of Jasper county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Statement of the Case.
    Action by George S. Richmond, plaintiff, against Mary Conner, defendant, on a promissory note. Judgment by confession during vacation after the October term, 1913. On the defendant’s motion at the October term, 1914, the judgment was opened and leave to plead granted. After joinder a trial before the judge without a jury resulted in a judgment for the defendant for costs and in bar. Plaintiff appeals.
    Emery Andrews and Raymond G. Real, for appellant.
    Fithian & Kasserman, for appellee.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Elijah H. Marteeny et al., Appellants, v. J. Warner Louth, Commissioner, et al., Appellees.
    1. Township organization, § 39

      —when purchasers of bonds necessary parties to action to have bonds declared invalid. In a taxpayers’ suit against the commissioner of highways seeking, in connection with other relief, to have bonds—issued and sold in accordance with the outcome of an election—declared invalid, such question of the validity of the bonds cannot be considered where the purchasers of them have not been made parties to the action.
    2. Injunction, § 99

      —when work under contract by highway commissioner for construction of roads perpetually enjoined. Where a commissioner of highways has let a contract for the construction of roads in violation of the statute, a court of equity will at the suit of a taxpayer declare such contract void and perpetually enjoin work thereunder.
    3. Township organization, § 33

      —when township liable for work done under void contract. Where, in a taxpayers’ suit against a commissioner of highways, a temporary injunction is filed, of which the commissioner has notice, restraining him from paying out moneys and doing construction work under a certain void contract but he nevertheless proceeds with the work until the filing of the injunction bond and service of the writ upon him, payment is properly ordered for the work so done, it appearing that the town has the benefit of it, and that in doing the work the highway commissioner was not actuated by any fraudulent purpose, but that he believed he was acting within the law and that he was attempting to procure the work to be done as economically as possible.
    . 4. Equity, § 1

      —when discretionary power of officers not disturbed. A court of chancery will not take upon itself the control of the discretionary powers of a municipal or quasi municipal officer.
    5. Township organization, § 28

      —when highway commissioner has no discretion as to use of materials for highway improvements. Where, in accordance with the provisions of section 112, ch. 121, Hurd’s Rev. St., the petitioners by their petition and the voters by their votes designate specifically the amount of funds to be 'raised for highway improvements and the specific highways to be improved out of such fund, it does not rest in the discretion of the highway commissioner as to what materials he may employ within the terms of the statute, but he must employ such material as will, with the funds available, enable him to substantially complete the entire portions of the highways designated in the petition.
    Appeal from the Circuit Court of Jefferson county; the Hon. E. E. Newlin, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded.
    Opinion filed December 1, 1915.
    Robert M. Farthing, for appellants.
    Joel F. Watson, George L. Ore and Conrad Schul, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topie and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

On the 21st day of March, 1914, there was filed with the town clerk of the Town of Mt. Vernon, Jefferson county, Illinois, a petition signed by the commissioners of highways of said town in their official capacity, and also by 172 freeholders of said town, requesting that the town clerk, when giving’ notice of time and place of holding the annual-town meeting for the year 1914, also give notice “that a vote would be taken on the proposition for borrowing $40,000 to construct gravel, rock, macadam, concrete or other hard roads, in said town, to the extent, in the places and for the distances, as follows:

' ‘ Shawneetown road, from the city limits of the City of Mt. Vernon to the south boundary line of the town, a distance of one-quarter of a mile, more or less;
“Tenth street road, from the city limits of the City of Mt. Vernon to the south boundary line of the town, a distance of one-quarter of a mile, more or less;
“Brownsville road, from the city limits of the City of Mt. Vernon to the south boundary line of the town, a distance of one-quarter of a mile, more or less;
“Ashley road, from the city limits of the City of Mt. Vernon to the west boundary line of the town, a distance of one-quarter of a mile, more or less;
“Eichview road, from the city limits of the City of Mt. Vemon to the west boundary line of the town, a distance of one-quarter of a mile, more or less;
‘ ‘ Centraba road, from the city limits of the City of Mt. Vemon to the west boundary line of the town, a distance of one mile, more or less;
“Perkins avenue road, from the city limits of the city of Mt. Vernon eastward, a distance of two miles, more or less;
“Fairfield road, from the city limits of the City of Mt. Vernon eastward for a distance of two miles, more or less;
“Toll Mill road, from the city limits of the City of Mt. Vernon northward for a distance of two miles, more or less;
“Salem road, from the city limits of the said City of Mt. Vernon northward for a distance of two miles, more or less.”

The aggregate mileage mentioned in the petition is approximately ten miles.

The proposition carried, and the bonds were subsequently issued, sold, and the proceeds came into the hands of the appellee, E. Delbert Wilkerson, supervisor and ex officio treasurer of the road and bridge fund of said town. The town having previously adopted the single highway commissioner system, appellee J. Warner Louth was elected highway commissioner at said annual town election, and appellee Tony C. Pitchford was and is the county superintendent of highways of Jefferson county.

The highway commissioner with the approval of the county superintendent of highways advertised the letting of the contract for the construction of concrete roads ten feet in width, with a four foot macadam shoulder on each side.

The contract was let to Gr. Kirk Carver, appellee, at $25 over and above the cost price of the road, and $3 per diem for his services while employed in such construction. The evidence tends to show that Carver was a “dummy contractor” and that the whole plan was an effort to go around the provisions of the statute requiring the contract for the construction of the work to be let to the lowest bidder; and to permit the highway commissioner to construct the roads by purchasing material and employing the labor himself. The evidence further tends to show- that the cost of the concrete roads, such as contemplated by the contractor, Carver, would be from $8,000 to $11,000 per mile, and that macadam or gravel roads can be built at a cost from $3,500 to $4,500 per mile.

On the 25th of August, 1914, appellants filed a bill setting up the above facts and averring that the bond issue was illegal and praying for an injunction against the further construction of the concrete roads, and also praying that in the event that the court should find the bond issue legal that a mandatory injunction be issued compelling the highway commissioner to let the contract and construct said hard roads to the extent, in the places and for the distances described in said petition, of rock or macadam or other suitable material, of such width and thickness as may be built at a cost not to exceed $4,000 per mile. A temporary injunction was ordered issued on September 5, 1914, upon filing bond, which bond was not filed until the 12th of September. Prior to the filing of the bond and the issuing of the injunction writ, 1,320 lineal feet of road had been built, except the macadam shoulders, and there had been paid out on said work the sum of $3,855.18.

The cause came on for hearing on the 12th day of October, 1914, at a regular term of court upon the bill, motion to dissolve the injunction, answers, replications and the evidence, and the trial court found on the hearing that the bonds were legally issued; that the contract let to Carver by the highway commissioner was void for the reason that the statute as to public notice, etc., had not been followed, and “that the said J. Warner Louth, as such commissioner, had a legal right to construct said highways according to his discretion out of any of the materials mentioned in the said petition.” On this'finding the court entered an order decreeing that appellee J. Warner Louth, as such highway commissioner, with the approval of the county superintendent of highways, proceed to let the contract publicly, as provided by statute, to build the said hard roads to the extent that the said sum of $40,000 will build out of such materials as said commissioner of highways, with the approval of said county superintendent of highways shall select, “namely, out of gravel, rock, macadam or concrete,” being the materials mentioned in said petition.

The court further ordered that the work already constructed should be paid for out of the proceeds derived from the sale of said bonds, except as to certain work and teams furnished by said Louth to said Carver; that the amount that would be owing to Louth should not be allowed, and that any funds paid to Louth should be repaid to the treasurer. The temporary injunction was made perpetual in so far as it enjoined the highway commissioner and said contractor from proceeding under said contract which the court held to be illegal.

The examination of the errors raises the following questions: First, was the election and the bonds issued in pursuance thereof valid? 'Second, did the court err in finding the contract made by the highway commissioner with the man Carver void, and, if void, did the court err in ordering the payment for the work done and the materials furnished on the road, so far as constructed, paid out of the,proceeds of said bond issue? Third, did the trial court err in refusing to enjoin the commissioner of highways and the superintendent of highways from adopting specifications for the construction of said road, when said specifications contemplated materials and work, the cost of which would exhaust the funds voted by the citizens and taxpayers before more than half of said work specified in said petition had been completed?

The election was held under provisions of section 112, chapter 121 of Hurd’s Eevised Statutes, which act provides for the holding of said election upon petition of the commissioner of highways in their official capacity and of 100 freeholders in any town or district, and so far as the record shows in this case the election was regular. The people voted for the making of the loan and the bonds were legally issued, and, we think, are valid and binding. Even if not valid, the question cannot be raised here for the reason that the bonds have been sold and the bondholders have not been made parties to this proceeding. The court would not undertake to declare the bonds invalid without giving the bondholders an opportunity to be heard.

On the second proposition we do not think it is seriously contended on the part of appellee that the commissioner of highways even seriously attempted to follow the provisions of the statute in the letting of the contract. The most that was contended by appellee is that the commissioner was attempting to procure the construction of the work in the most economical way, but not that he had complied with the provisions of the statute as to the letting of the contract, and, we think the court ruled correctly when it found the contract made between Louth, the commissioner of highways, and Carver, the contractor, was illegal, and the court was also correct in perpetually enjoining the construction of said work under said contract.

A more serious question arises on the proposition as to whether - or not payment for the work done and materials furnished under this void contract should be paid for out of the funds derived from the sale of the bonds, not including work or materials furnished by Louth, the highway commissioner. It is urged as a special reason by the appellants why said payment should not be made, that a large part of this work was done after the trial court had entered an order for temporary injunction and before the bond was filed. In other words, that" the highway commissioner had notice of the order for said injunction, and that notwithstanding this notice, he proceeded with the work up until the bond was filed and he was served with a writ. We are not prepared, however, to say that the trial court was not warranted in ordering this work and materials paid for out of said funds, inasmuch as the town has the benefits of said work, and there is nothing to show that in doing this work the highway commissioner was actuated by any fraudulent purpose, but that he believed he was acting within the law and that he was attempting to procure the work to be done as economically as possible. We, therefore, are of the opinion that that part of the decree should not be disturbed.

The bill for injunction in this case prayed not only that the commissioner of highways and the superintendent of highways be enjoined from constructing concrete roads, but that a mandatory injunction be issued, directing that “the commissioner of highways and the county superintendent of highways be commanded to proceed to construct the said hard roads to the extent, in the places and for the distances described in said petition, of rock or macadam, or other suitable material, of such width and thickness as may be built at a cost of not to exceed $4,000 per mile. ’ ’

If the prayer of this petition contemplates that a court of chancery shall take upon itself the control of the discretionary powers of a municipal or quasi municipal officer, the answer is, that the law is too well settled that this cannot be done, to admit of serious controversy. Brush v. City of Carbondale, 78 Ill. 74; City of Mt. Carmel v. Shaw, 155 Ill. 37; Canal Commissioners v. Village of East Peoria, 179 Ill. 214; Town of Lemont v. Singer & Talcott Stone Co., 98 Ill. 99; High on Injunctions, vol. 2, sec. 1311.

As we view this case, this is not the question that is really presented to the court to be determined, but the real question is, did the legal voters who voted at the election held in pursuance of the petition filed with the town clerk of the Town of Mt. Vernon, in which a specific amount of $40,000 was voted to be borrowed to construct gravel, rock, macadam, concrete or other hard roads, in said town to the extent, in the places and for the distances specified, limit the discretion of the highway commissioner and the county superintendent of highways in the amount that they should expend in the construction of said work? Did the legal voters by their vote limit the commissioner of highways and the county superintendent to the expenditure of so much per mile for the construction of the work petitioned for, that the amount voted would substantially complete the entire work specified in the petition? If they did, then a court of equity would have the right to see that limitation made by the legal voters should be enforced. No serious question could be raised in this case as to the discretionary powers of the commissioner df highways in the construction of these roads and as to the materials to be used, were it not for the fact that the petition specifically designated each particular road to be improved and the length of the improvement. The evidence in the record is that the concrete roads with macadam shoulders, being constructed by the commissioner of highways, will cost from $8,000 to $11,000 per mile, so that not to exceed five miles of the road specified in the petition can be completed out of the funds voted. We understand the attitude of the commissioner, as set forth in the evidence, to be that it is a matter entirely in his discretion as to the materials he shall use and also as to the roads which he shall improve, so that if left unrestrained, the probability is that only about one-half of the roads specified would be improved and no work whatever would be done on the others. If that situation is to follow, it would work a fraud on the petitioners and voters who voted these improvements, and who are taxed to pay for the same, and a large proportion of them would receive practically no benefit from the expenditure of said money. We do not believe that this arbitrary power claimed by the commissioner of highways in the case at bar was ever contemplated by the statute.

In the case of People v. Kankakee & S. R. Co., 248 Ill. at page 117, the court says: “The statute authorizes a vote for or against levying a tax for the purpose of construction and maintaining gravel, rock, macadam or other hard roads. The petition was for a vote upon the proposition to levy a tax to be used in constructing macadamized roads. The notice and election were for levying a tax for the purpose of constructing and maintaining gravel, rock, macadam or other roads, and the levy is for the purpose of constructing and maintaining gravel, rock, macadam or other hard roads. The statute authorizes a vote upon the question of levying a tax for hard roads upon a petition. The petitioners have the right to determine the kind of road they want voted upon,—whether, gravel, rock, macadam or other hard road. They may, if they see fit, petition for a vote upon levying a tax for gravel, rock, macadam or other hard road, leaving the character of the road to be determined by the highway commissioners, but if the petition is for a vote upon a particular kind of hard road the vote must be had upon that proposition and cannot be extended to other kinds of road.”

In the case of People v. Cleveland C., C. & St. L. Ry. Co., 266 Ill. at page 101, the court says: “Where the petition is for a vote upon a particular kind of hard road the vote must be had upon that proposition and cannot be extended to other kinds of road. The notice and ballot should follow and agree with the petition.” Citing and approving, People v. Kankakee and S. R. Co., 248 Ill. 114, and People v. Cincinnati, I. and W. Ry. Co., 261 Ill. 582.

It will be seen, therefore, that the court in these cases recognized that while, if the petition does not specify the character of the material that shall be used in the construction of hard road, the kind of materials to be used shall be left to the commissioner of highways, but if the petition specifies the character of materials to be used it is valid and binding upon the commissioners, and their discretion in that regard is limited.

By analogy, therefore, we hold that the petitioners in this case, by their- petition and the voters by their vote, limited the discretion of the commissioner of highways and the county superintendent of highways in the amounts that they should expend in the construction of the highways to such an amount as would allow them to substantially complete the various work specified on the respective roads mentioned in the petition.

We believe that a consideration of section 122 of said Act will throw some light on the construction which should be given to section 112 touching this matter. <

Section 122 provides: “The commissioners and the county superintendent of highways may, in their discretion, cause the road to be constructed wholly of earth, and by a thorough system of tile and other drainage, when gravel, stone and other suitable hard materials cannot be obtained at a cost within the means in the hands of the commissioners. ’ ’ It will be observed that the Legislature had in mind in the enactment of section 122 that the commissioners of highways should take into consideration the work they had to do and the funds at their command to be used for that purpose. And, if necessary, when gravel, rock and other suitable hard materials cannot be obtained at a cost within the means in the hands of the commissioners that then they may cause the road to be constructed wholly of earth. We hold, therefore, that the commissioner of highways in the case at bar has so much work to be constructed, and has certain specified funds to pay for said work, and he must, in exercising his discretionary powers, be limited as to the character of the materials to be used to a certain extent by his limitation of funds. This, we think, is in keeping with the spirit of the statute under which he is acting.

The evidence is that macadam or gravel roads can be built in that community at a cost of from $3,500 to $4,500 per mile, and that said macadam or gravel roads constituted a suitable and available material, and this, we think, would also follow from the language of the statute which specifies rock or macadam roads.

Our conclusion, therefore, is that the decree should be affirmed in so far as it holds the bonds in question to be legal and valid, and in so far as it sets aside the contract entered into by the commissioner of highways and the contractor, Carver, and in so far as it perpetually enjoins the same, and should be affirmed in its judgment for costs against appellees, and should be affirmed as to the payment for the work and materials already used in the construction of said work already done, and should be reversed in so far as it holds that the commissioner of highways has unlimited discretion as to the materials which he may use in the construction of the work specified in the petition. A decree should be entered enjoining Louth, commissioner of highways, and Tony C. Pitchford, county superintendent of highways, from specifying materials and work and the letting of any contract, the cost of which, for substantially the entire work petitioned for, cannot be paid out of the funds derived from the bonds in question, and except for that limitation placed on the commissioner of highways and the county superintendent, of highways, by said petition and by said election, their discretion to be limited only by the statute.

Reversed and remanded.


text:
    Clarence Penrod by Clara Penrod, Appellee, v. East St. Louis Railway Company, Appellant.
    (Not to be reported in full.)
    Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Statement of the Case.
    Action by Clarence' Penrod, a minor, by Clara Pen-rod, his next friend, plaintiff, against the East St. Louis Railway Company, defendant, for injury to a hand, necessitating the amputation of the fingers and part of the thumb, resulting from being knocked down and run over by the defendant’s car at a street crossing. From a judgment for plaintiff for $4,000, defendant appeals.
    During the winter season the defendant operated its cars eastward on the north side of the bridge and westward on the south side, the superstructure of the bridge consisting in part of lattice work standing between the north and south tracks. The testimony for the plaintiff tended to show that the defendant’s car was approaching the crossing from the west on the north side of the bridge at a high rate of speed, without sounding a gong or giving any other signal; that the plaintiff, before approaching the crossing from the south side, stopped and listened for the ringing of the gong of the defendant’s street cars, and not knowing of the custom to operate eastbound cars on the north track, looked toward the east, and seeing none stepped upon the track, was knocked down and injured. Further, the admitted facts were that the tracks of the defendant’s line ran within two feet of the superstructure of the bridge and that the lattice "work thereof practically shut off the view of persons approaching the crossing from the south side of the bridge.

      Abstract of the Decision.
    1. Negligence, § 157

      —when plaintiff must prove use of ordinary care. In an action for- damages for personal injury resulting from the defendant’s negligence, the plaintiff must prove that at the time of the injury he was in the exercise of due care for his own safety and that he was not guilty of negligence contributory to the injury.
    2. Street railroads, § 135

      —when contributory negligence of pedestrian in stepping on track after emerging from under bridge* question for jury. A pedestrian passing along a street crossing extending under the superstructure of a bridge, within two feet of which street car tracks are laid, who before emerging therefrom stops and after listening for the car signals and hearing none, looks in the direction from which cars would ordinarily be approaching, steps upon the track, and is knocked down and injured by a car coming from the opposite direction, may not properly be found by the jury to have been guilty of contributory negligence.
    3. Street railroads, § 131

      -—when evidence sufficient to establish negligence in operation. A jury is warranted in finding a motorman guilty of negligence who operates a street car at a high rate of speed in a direction opposite to that in which such cars would ordinarily be run in approaching, without giving proper signals, a street crossing, the view from which is obstructed.
    4. Negligence, § 198

      —when question of due care or contributory negligence for court. It is only where the important facts touching on the question of contributory negligence aré undisputed that the court has the right to declare, as a matter of law, that a party was not in the exercise of due care or that he was guilty of contributory negligence.
    5. Negligence, § 198

      —when question of due care and contributory negligence for jury. Where important facts are in dispute, the questions of due care and contributory negligence is pre-eminently one of fact for the jury.
    6. Street railroads, § 94

      —when person may assume that motorman will give signal and have car under control. On the question of contributory negligence in a personal injury action, the plaintiff,' about to pass over a street crossing, is justified in assuming that the motorman of the defendant’s street car will obey the law by sounding his gong on approaching the crossing and will have his car under proper control.

      Barthel, Farmer & Klingel, for appellant.
    Keefe & Sullivan, for appellee.

       See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

7. Street railroads, § 64 —what degree of care required in operation of cars at street crossings. It is incumbent upon persons operating street cars to exercise a greater degree of care and watchfulness at street crossings or intersections than at other places along the route.

8. Street railroads, § 133 —when question of negligence in operation of Gar upon approaching crossing for fury. The question of the negligence of a street car company’s servant in operating its car on approaching a "crossing, having regard for the travel at that point, is for the jury.


text:
    Amos Jones, Appellant, v. Lottie Veeck et al., Appellees.
    (Not to be reported in full.)
    Appeal from City Court of Alton; the Hon. James E. Duiwegan, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Statement of the Case.
    Action by Amos J ones,. plaintiff, against Lottie Veeck, Julius F. Veeck, Julius Veeck and Rosa L. Veeck, defendants, to recover commissions for the sale or exchange of real estate. From a judgment against him, the plaintiff appeals.
    J. V. E. Marsh, for appellant.
    William P. Boynton, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

Abstract of the Decision.

1. Principal and agent, § 72 —when agent acting for both parties not entitled to recover commission. While an agent’s right of recovery against his principal for commissions will not he defeated where the latter had knowledge that the agent was also acting for the other party to the transaction and consented to his receipt of compensation therefor, lack of such knowledge and consent on the part of the principal will defeat the agent’s action.

2. Appeal and error, § 1411 —when verdict not disturbed on appeal. Where there is a direct conflict of evidence as to the knowledge of a principal that his agent was also acting for the other party to the transaction and as to the principal’s consent that the agent should receive compensation therefor, the question is one for the jury, whose verdict will not be disturbed on appeal in the absence of serious errors in the rulings on the admission of testimony or in the instructions.

3. Appeal and error, § 1712 —when errors abandoned .in argument not considered. Where the appellant wholly abandons in his argument certain assignments of error on the record, the Appellate Court is not required, under the rules, to give them any attention.

4. Brokers, § 84 —when evidence as to why transaction not completed competent. In a real estate broker’s action against his principal for commissions for effecting a sale or exchange of property, evidence as to why the transaction was never consummated held competent as tending to show that the broker had forfeited his right to commission.

5. Appeal and error, § 1410 —when verdict not disturbed on appeal. In the absence of serious error in the rulings of the trial court where the questions involved are principally those of fact, the Appellate Court is not warranted in disturbing the verdict of the jury unless it is against the manifest weight of evidence.


text:
    Michael Harrold, Appellant, v. City of East St. Louis, Appellee.
    1. Municipal corporations, § 1139

      —when city liable for unauthorized acts of officers in misapplying proceeds of tax levy to pay tax warrants. An action in assumpsit will lie in favor of a bona fide holder for value of tax warrants duly issued by the proper authorities of a city in anticipation of a tax properly authorized and levied, where the proceeds of the levy have been diverted by the constituted city authorities to the payment of other debts of the city, and the holder of such warrants will not be confined to his remedy against the city officers, so unauthorizedly diverting such funds, and their bondsmen.
    2. Municipal corporations, § 1139

      —when proceeds of tax levy to pay tax warrants trust fund to pay holders of warrants. Where anticipation tax warrants have been issued, the proceeds from such tax levy when collected constitute a trust fund in the hands of the city, levying the tax, in favor of the holders of the warrants.
    3. Assumpsit, § 13

      —when lies against municipal corporation. An action in assumpsit will lie against a municipal corporation to recover money owing in equity and good conscience.
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crowe, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded.
    Opinion filed December 1, 1915.
    Dan McGlynn and B. H. Canby, for appellant.
    S. W. Baxter and T. L. Fekete, for appellee; John E. Hamlin, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

This is an action in assumpsit brought by appellant, plaintiff below, against the appellee, defendant below, in the Circuit Court of St. Clair county. The declaration is on the common counts, to which appellee pleaded the general issue. The damages claimed are $25,000. A jury was waived and the cause tried by the court. The trial court found the issues for appellee and rendered judgment in bar of action and for costs, from which judgment the present appeal is prosecuted.

The facts in the case are substantially undisputed. The evidence shows that in January, 1912, the city council of the City of East St. Louis passed its appropriation ordinance for the fiscal year 1912, appropriating the sum of $576,000 for the various city expenses. In June of the same year, the annual tax levy ordinance was passed to meet such appropriation. The city having exhausted the funds in its treasury, on August 19, 1912, passed an ordinance authorizing the mayor and city comptroller to issue anticipation warrants against the taxes levied for the year 1912 to the amount of $194,431.02f, being seventy-five per cent, of said tax levy. The evidence further shows, and it is in fact conceded, that the warrants in evidence in this case were a part of the issue that was authorized and that said issue was within the seventy-five per cent, limit provided by law.

The evidence further shows that in December, 1912, the mayor and city comptroller issued other anticipation warrants amounting to over $26,000, which with the amount theretofore authorized and issued made a total of $221,699.86, being in excess of seventy-five per cent.

The evidence further shows that when the certificates of the mayor and city comptroller showing that the original issue of warrants was within the seventy-five per cent, limit provided by law were delivered to the Southern Illinois Trust Company, the warrants were issued by the city and delivered to the persons in whose favor they were drawn, and were presented for payment to the Southern Illinois Trust Company, and that company, in behalf of the Continental and Commercial National Bank of Chicago, paid the amount of the warrants to the holders.

The evidence further shows that appellant purchased these warrants from the Continental and Commercial National Bank, and paid their full face value, with accrued interest. In fact, it is admitted by appellee that appellant obtained such warrants for value and in good faith, and also that sufficient funds were received from the taxes of 1912 by the city treasurer to have redeemed said warrants in full.

The evidence further shows that one Fred Gferold was the city treasurer of the City of East St. Louis during the year 1912, and up to May 5, 1913; that as such city treasurer he was ex oficio town collector of taxes for the Town of East St. Louis, and his delinquent return to the county treasurer shows that the net amount of city taxes of the City of East St. Louis collected by him for the year 1912, was $154,231.98. And in his monthly report to the city council for the month of April, 1913, he charged himself, as city treasurer, with having received this amount from the city tax revenue for the year 1912.

The evidence further shows that out of the taxes received by Fred G-erold, city treasurer of said city, for the year 1912, he redeemed anticipation warrants drawn against these taxes to the amount of $112,530.84; that included in the anticipation warrants so redeemed by him were about $26,000 of warrants issued in December, 1912, to make what was called the " Christmas pay,” that is, to pay the policemen, firemen and other city employees for back salary owing them. There were also included $6,765.19 of anticipation warrants drawn by the mayor and city comptroller against this tax levy during the mónths of January, February, March and April, 1913. The limit that lawfully could be drawn was $194,431.02, consequently the treasurer, in paying the $26,000 and the $6,675.19 of warrants issued as above set forth, paid out in excess of the seventy-five per cent, limit the sum of $27,268.84. The difference between the amount of taxes received by the city treasurer, viz.: $154,231.98, and the amount of anticipation warrants redeemed by him, $112,530.84, is the sum of $41,701.14, and this amount, the evidence shows, he paid out in taking up warrants drawn and issued by the mayor and city comptroller for current expenses authorized by the city council, instead of using said funds to take up said anticipation warrants.

The evidence further shows that a demand was made upon Fred Gerold, city treasurer, to pay the anticipation warrants held by appellant after said treasurer had received the taxes for the year 1912, against which, said warrants were drawn, and that said treasurer stated he had no funds to pay them. Thereafter a demand in writing, with a list of the warrants attached, was served on Frank Keating, the successor of Gerold as such city treasurer, and he too failed to pay them on the ground that he had no funds. The controlling question, therefore, in this case is, can appellant recover from appellee, the City of East St. Louis, the amount unpaid on said anticipation warrants held by him, or is his only remedy against Fred Gerold, former city treasurer of said city and his bondsmen.

Appellant contends, first, that the statute (chapter 146a, sec. 2, Rev. St. 1911, J. & A. ft 11525), by authority of which the anticipation tax warrants in evidence were issued, imposes the duty upon the “proper authorities” of the municipal corporation issuing and disposing of such warrants, to set apart and hold the taxes against which they are drawn for their payment, and for any negligent or wrongful failure to perform this duty, after the taxes have been collected and are in the municipal treasury, the city will become liable generally to the holders of the warrants to the extent of the taxes so received, as for money had and received to the use of the warrant holders.

The second contention is that irrespective of the requirements of the statute, if a city, having made provision for issuing warrants in anticipation of a tax already levied, in payment of the ordinary and necessary expenses thereof, issues and disposes of such warrants, and after the taxes out of which such warrants are payable have been collected and are in the city treasury, the city, either by the direct act of its council, or by and through the wrongful acts of its duly authorized officials in charge of the administration of its fiscal affairs, causes said taxes to be diverted from the payment of said warrants, and to be applied to other corporate purposes, the city will thereby make itself liable generally to the holders of the warrants to the amount of such taxes so diverted.

On the other hand, appellee claims that there is no liability on its part to appellant in this case for the reason that these anticipation warrants held by appellant provide on their face that they are to be paid out of the taxes of 1912 and not otherwise, and that appellant’s sole remedy to recover the amount owing to him on said warrants is by suing the former treasurer of said city and his bondsmen.

The Supreme Court of this State in the .cases of City of Springfield v. Edwards, 84 Ill. 626; Law v. People, 87 Ill. 385; and Fuller v. Heath, 89 Ill. 295, define the law governing municipal corporations which are already indebted up to the constitutional limit in reference to issuing anticipation warrants against a tax already levied. These limitations were, first, that the tax 'appropriated must at the time be actually levied; second, the legal effect "of the contract between the corporation and the individual made at the time of issuing and accepting the warrants on the treasury must operate to prevent any liability to accrue on the contract against the corporation, the duty remaining for the proper officers to collect and pay over the tax; that for any failure in that regard, the remedy must be against the officers, and not against the corporation. Otherwise a contingent debt would in this way be incurred by the corporation. The effect of these decisions was to relieve municipal corporations indebted up to the constitutional limit, in issuing anticipation warrants against a tax already levied, from all duty or responsibility for the application of the taxes when collected to the payment of the warrants drawn against it, and to cast that duty upon the officers, who are by law required to collect and pay over the taxes.

At the time these cases were decided, there was no statute in this' State regulating and controlling the manner in which municipal corporations might issue anticipation warrants against a tax already levied. After these decisions were rendered, such a statute was enacted. The Legislature by an Act approved May 31, 1879, in force July 1, 1879, and which with amendments made in 1901, is now chapter 146a, Rev. St. 19.11 (J. & A. ¶¶ 11524-11527), provided by section 2 of said Act (J. & A. ¶ 11525) the manner in which municipal corporations might thereafter issue anticipation warrants against a tax already levied. This section makes it lawful for “the proper authorities” of the municipal corporations therein mentioned, whenever there is not sufficient money in the treasury to meet and defray the ordinary and necessary expenses thereof, to provide a fund to meet said expenses by issuing and disposing of warrants drawn against and in anticipation of any taxes already levied by “said authorities” for the payment of the ordinary and necessary expenses thereof, to the extent of seventy-five per centum of the total amount of any such tax levy. The proviso to the section requires that the warrants shall show upon their face that they are payable solely from said taxes when collected and not otherwise, and shall be received by any collector of taxes in payment of the taxes against which they are issued. The last clause thereof provides: “And which taxes against which said warrants are drawn shall be set apart and held for their payment.”

The language of the last clause of this section is general. It names no one to perform the duties which it imposes, and its application is to be determined from a consideration of the entire section when read together as a whole. When so read, it is at once perceived that no one is mentioned anywhere in the section to whom the duty of setting apart and holding the taxes for the payment of the warrants can be referred, except “the proper authorities,” who have already levied the tax, and who have drawn and issued the warrants against the same. This section confers a power, to be exercised in a certain way, and subject to certain prescribed limitations, burdened with the performance of a certain duty, annexed to the exercise of the power; the duty being imposed upon those upon whom the power is conferred.

This section of the statute has never been construed by the Supreme Court with reference to the question as to whether the last clause creates a corporate duty, for the negligent or wrongful failure to perform which, the municipality may become liable to the warrant holder generally, in the same way that it may become liable for its negligent or wrongful failure to perform any other duty devolved upon it by law. It would seem, however, that the holding of the Supreme Court made before the enactment of this statute, as applied to municipal corporations indebted beyond the constitutional limit, to the effect that the only remedy of the warrant holder is against the collecting officers for a failure to pay the warrants when the taxes have been collected, has been abrogated by this statute; that while the warrants create no debt against the municipality, being payable solely from the taxes, when collected and not otherwise, yet the statute imposes the duty upon the municipal authorities issuing the warrants, to set apart and hold the taxes, against which the warrants are drawn, when collected, for their payment, and that for the negligent or wrongful failure to pery form that duty, the municipal corporation may render itself liable, in the same way, and to the same extent that it may become liable for the nonperformance of any other duty imposed upon it by law. The fact that some municipal corporations in the State may be indebted up to the constitutional limit, in no way affects the competency of the Legislature to impose this duty upon all municipal corporations in the State issuing anticipation warrants under this statute. It is not in violation of section 12, article 9, of the Constitution which prohibits municipal corporations from becoming indebted beyond five per cent, of the value of their taxable property. The act does not create a debt or claim against any municipal corporation. If no person suffers damage from a failure to perform the duty, no debt or charge will ever be created. The fact that a cause of action may arise from the neglect of this duty is no more a debt against the city or municipality than is the right of recovery against such municipality for any other wrong or injury. City of Chicago v. Manhattan Cement Co., 178 Ill. 372.

If our construction of the statute in this respect is correct, then the duty of the municipalities issuing anticipation warrants to set apart and hold the taxes against which they are drawn for their payment, is precisely analogous to the duty of cities and villages making local improvements under the Local Improvement Act of this State, to set apart and hold the special taxes or assessments against which vouchers and bonds have been issued for their payment.

Sections 73 and 90 of the Local Improvement Act (chapter 24, Rev. St. 1911, J. & A. j]jj 1464, 1465) provide that no person or persons taking any contract from any city, village or town and agreeing to be paid out of special assessments or special taxes, sháll have any claim or lien upon the city, village or town in any event, except from the collection of the special assessments or special taxes made for the work contracted for, and no person or persons accepting the vouchers or bonds provided for in the act shall have any claim or lien upon the city, town or village in any event, for the' payment of such vouchers or bonds, except from the collection of the assessment against which such vouchers or bonds are issued. Section 12, art. Ill, ch. 24, Rev. St. 1911, provides that all money received on any special assessment shall be held by the treasurer as a special fund to be applied to the payment of the improvement for which the assessment was made, and said money shall be used for no other purpose whatever, unless to reimburse such corporation for money expended for such improvement.

The Supreme Court in passing on these sections of the Local Improvement Statute has held that a city is powerless to make itself liable by ordinance for special assessment bonds, vouchers or interest. Village of Park Ridge v. Robinson, 198 Ill. 571.

However, the court in said case states an exception to the doctrine of nonliability in the following language : “As a general rule, it will be found that in the cases in which the municipal - corporation has been held to a general liability, there has been some wrongful act, negligence or default on its part which injuriously affected the rights of the claimant.”

In the case at bar, one of the grounds of recovery claimed by appellant is that the taxes against which the anticipation warrants were issued were collected and received by the city treasurer, and that under the statute it was the duty of the city to set apart and hold these taxes for the payment of the warrants. The city neglected and failed to do this, but on the contrary, has drawn warrants on its treasurer, and has allowed him to pay out the funds in his hands which should have been used for the payment of- these anticipation warrants, whereby appellant’s right to have his warrants paid out of said tax was wholly lost.

In the case of Conway v. City of Chicago, 237 Ill., pages 135 and 136, the Supreme Court in passing on the provisions of the above mentioned sections 73 and 90 of the Local Improvement Act, and section 13, art. III, ch. 24, Rev. St. 1911 (J. & A. ¶ 1313), says: “The improvement having been projected by the city as an improvement to be paid for by special assessment, the city is not liable, generally, for any unpaid balance due the contractor. The liability of the city, both under the law and under the contract with appellee, is limited to the amount of the special assessments actually collected for this improvement and which have not been paid over to appellee. * * *

Where the special assessment has been levied and collected by the city and nothing remains to be done except to pay it to the party entitled to it, assumpsit is a proper remedy to compel the city to pay it over.” The court further says: “The funds collected from this special assessment constituted a trust fund to pay for the improvement, and the city had no right to transfer them to other funds and draw on them indiscriminately for pay rolls of inspectors, engineers, accountants and other officers and employees of the special assessment department, without regard to the improvement with respect to which such services were rendered or expenses incurred. * * * Appellant having thus wrongfully diverted these amounts is liable therefor in this action.”

The court further says: “While appellee’s ownership of past-due bonds issued in anticipation of this special assessment is a necessary element in his right to recover in this case, still this is not a suit upon the bonds in the sense that the recovery must be according to the tenor and effect of the instruments, but it is essentially a suit against the city for money had and received to the use of appellee which in good conscience ought to be paid to him.”

It would seem that the duty of the city to pay vouchers or bonds issued under the Local Improvement Act out of special assessments against which they are drawn, when the special assessment has been collected, is no greater than the duty of a city, having issued anticipation warrants against a tax levy to set apart and hold the taxes against which they are drawn for their payment. It is a statutory duty in each case. As the Supreme Court holds the city liable in the one case we see no reason why it should not in the other.

Appellee relies on the case of Schulenburg & Boeckler Lumber Co. v. City of East St. Louis, 63 Ill. App. 214, that being a case where plaintiff, said Lumber Company, brought suit against the City of East St. Louis upon the theory that it was also the holder of anticipation warrants; that the taxes out of which such warrants should have been redeemed had actually been collected, but that the funds derived thereby had been wrongfully and tortiously diverted to pay other expenses of the city, in which case the city was held not liable. We believe, however, since the amendment of 1901 to the statute in reference to issuing anticipation warrants, and in view of the holding of the Supreme Court in Conway v. City of Chicago, supra, that, the Schulenburg & Boeckler case, supra, would not be an authority in this case and should not be followed, the statute having been materially amended since such decision was rendered.

We further believe that appellant has the right to recover from appellee in this case on the ground that in equity and good conscience, having received from its city treasurer the funds derived from the taxes out of which these warrants held by appellant were to have been paid, and having expended these funds in the payment of its ordinary current expenses and the city having had the benefit of said funds, it would be liable to the appellant therefor in an action of assumpsit for money had and received.

It is conceded in this case, both by appellant and appellee, that the anticipation warrants issued in this ease do not create any indebtedness against the city; that it amounts in effect to an assignment to the app ellant of so much of the taxes then levied as is necessary to pay said warrants. That being true, the city had no right whatever, after said warrants had been issued and the city had received the money on the same as provided by statute, to receive or expend said taxes, and having done so it would be liable therefor.

We further hold that having caused the issue of said anticipation warrants and having received the funds therefor, it was the duty of the city to in no way hinder or delay the holder of said-warrants from receiving payment therefor out of the taxes to be collected; that rightly, it was the duty of the city authorities to see to it that the funds necessary to take up these anticipation warrants be set aside when collected and held as a trust fund for said purpose". The city authorities have failed and neglected so to do, but instead thereof have issued warrants directed to its treasurer, and with knowledge thereof have allowed said treasurer, out of the funds which he had collected, and which should have been held as a trust fund to take up said anticipation warrants, to expend said funds in the payment of said warrants so drawn for the ordinary running expenses of said city.

There is quite a line of decisions in this State to the effect that an action in assumpsit will lie to recover money owing in equity and good conscience from one person to another, even though that person should be a municipal corporation, such as the defendant in this case, some of which we will refer to.

In the case of Trustees, etc. v. Trustees, etc., 81 Ill. 470, being a case where trustees of schools, as such, are sued for funds which came into the hands of théir treasurer and were appropriated by them as such trustees, were sought to be held as trustees of schools in action to recover said funds, the court at page 473 says: “But it is said that this money was paid to the treasurer as an individual, and the trustees controlled it as individuals, and the recovery should be had against them as individuals. The money was ordered to be paid to the treasurer, and not the individual holding the office; and he received it as treasurer, loaned it as treasurer, and the trustees ordered him to pay it out as treasurer. Nor did the trustees assume the control of the fund as individuals. All they did, so far as we can see, was as trustees and not as individuals.

“But it is said that the treasurer had no power, as an officer, to receive the money, nor did the trustees' have a right to control it as officers. To admit this position would be to hold that the corporation could be held liable for no wrongful act of its officers. If, through mistake, they should collect money.not owing to the fund, and it were placed in the treasury, the corporation could hold it, and the person wronged would be compelled to look to the individual officers for his money. It would be to hold that whatever funds found their way into the school treasury, they might hold it, however unjust or dishonest. Such cannot be the law, as it shocks every principle of right. Such corporations, like individuals, must, when they obtain and hold the money of another, be held to refund it. There are many acts of such officers for which such corporations are not liable, but this is not of that class.”

In the case of City of Elgin v. Joslyn, 136 Ill. 525, being an action in assumpsit brought by John Joslyn against the City of Elgin to recover for work and materials furnished by appellee in the construction of the Elgin water works. The declaration contained the common counts only. There was a written contract between the parties, but the claim as made is for extras and extra work and materials. At page 530 the court says: ‘ ‘ The undisputed evidence on both sides shows, that, at a certain point, the city took charge of the work and finished it.” At page 532 the court says: “When plaintiff quit the work begun by him, he left in the hands of the city certain materials, tools and machinery. The materials were used, and the tools and machinery were destroyed by the city in the completion of the work. It is objected, that the plaintiff was allowed to introduce evidence of these facts upon the trial, and to recover for the value of the property thus used up and destroyed.

“It is claimed, that the act of the city in using and appropriating this, property of the plaintiff was a tort, and that the city is not liable in this action of assumpsit. Appellant’s position is, that assumpsit will not lie when property is wrongfully taken, unless it is converted into money, or money’s worth, or there has been a subsequent promise to pay for the same. We do not think that such is the law as applied to the facts of this case. The act of the city may have been tortious, but the plaintiff had the right to waive the tort and sue in assumpsit, as the city applied the property to its own use and benefit. Where one wrongfully takes the goods of another and applies them to his own use, the owner may waive the tort, and charge the wrongdoer in assumpsit on the common counts, as for goods sold, or money received. (Toledo, W. & W. Ry. Co. v. Chew, 67 Ill. 378.)”

In the case of Highway Com’rs v. City of Bloomington, 253 Ill. 164, an action of assumpsit based upon the common counts, was brought by the Highway Commissioners of tlie Town of Bloomington against the City of Bloomington to recover from said city the amount of taxes collected on property in Bloomington township, located within the corporate limits of the City of Bloomington and paid over by the collector of revenue to the. city under the third provision of section 16 of the Boad and Bridge Law as amended in 1909 (J. & A. 9643). This law had been previously declared unconstitutional, and this suit was brought to recover said taxes for that reason. In this case the court discusses at great length the right to bring actions of assumpsit in this character of cases and cites numerous authorities, both in this' State and in other States and from the United States Supreme Court reports.

At page 174 the court says: The action of assumpsit, under the common counts for money had and received, is an appropriate remedy to enforce the equitable obligation arising from the receipt of money by one person which belongs to another and which in equity and justice should be returned. (Gaines v. Miller, 111 U. S. 395; Pauly v. Pauly, 107 Cal. 8; Brown v. Woodward, 75 Conn. 254; Wilson v. Turner, 164 Ill. 398.) The action is in form ex contractu, but the alleged contract being purely fictitious, the right to recover does not depend upon any principles of privity of contract between the plaintiff and the defendant and no privity is necessary. * * * The right to recover is governed by principles of equity although the action is at law. The action is maintainable in all cases where one person has received money or its equivalent under such circumstances that in equity and good conscience he ought not to retain it and which ex aequo et bono belongs to another. (Jackson v. Hough, 38 W. Va. 236; Merchants’ Bank v. Barnes, 47 L. R. A. 737.)”

Again at page 175 the court says: “A public quasi corporation, such as a county, which receives taxes and applies them all to its own use when it should pay bonds issued by the town out of such taxes, is liable to such town therefor. (Strough v. Jefferson County, 119 N. Y. 212; 23 N. E. Rep. 552.) Where a county receives money belonging to other persons without authority it must refund to such persons. ('Chapman v. County of Douglas, 107 U. S. 348.) Where taxes are paid to a county by a sheriff when they should have been paid to a city, the city may recover such taxes from the county. (Salem v. Marion County, 25 Ore. 449; 36 Pac. Rep. 163.) * * * Where a school trustee expends money for the actual benefit of township schools which by law he is required to pay over to another school corporation, such township is liable to such corporation for the amount of money thus expended. (Center School Township v. School Com’rs, 150 Ind. 168; 49 N. E. Rep. 961.) ”

In the case of Warner v. City of New Orleans, 167 U. S. 467, the court in passing on a question, not unlike the one at bar, says: “One who purchases property and pays for it in warrants drawn upon a particular fund, the creation of which depends largely on his own action, is under an implied obligation to, do whatever is reasonable and fair to make that fund good. He cannot certainly so act as to prevent the fund being made good, and then say to his vendor, You must look to the fund, and not to me.”

In the case of City of Louisiana v. Wood, 102 U. S., page 298, being a case where the municipal authorities-of the City of Louisiana, Missouri, in order to avoid the effect of a statute recently passed, prohibiting the issuing of city bonds, dated the bonds of a date anterior of the passage of the statute. Mr. Justice Waite, in disposing of that case, uses the following language: “In Moses v. Macferlan, 2 Burr. 1005; it is stated as a rule of the common law that an action ‘lies for money paid by mistake, or upon a consideration which happens to fail, or for money got through imposition. ’ The present action can be sustained on either of these grounds. The money was paid for bonds apparently well executed, when in fact they were not, because of the false date they bore. This was clearly money paid by mistake. The consideration on which the payment was made has failed, because the bonds were not, in fact, valid obligations of the city. And the money was got through imposition, because the city, with intent to deceive, pretended that the-false date the bonds bore was the true one. While, therefore, the bonds cannot be enforced, because defectively executed, the money paid for them may be recovered back. As we took occasion to say in Marsh v. Fulton County, 10 Wall. 676: ‘The obligation to do justice rests upon all persons, natural or artificial, and if a county obtains the money or property of others without authority, the law, independent of any statute, will compel restitution or compensation.’ * * * The only contract actually entered into is the one the law implies from what was done, to wit: that the city would, on demand, return the money paid to it by mistake, and, as the money was gotten under a form of obligation which was apparently good, that interest should be paid at the legal rate from the time the obligation was denied. That contract the plaintiffs seeks to enforce in this action and no other. ’ ’

It will be observed from an examination of the above authorities that municipal corporations are, like individuals, held to account for money received by them, which in equity and in good conscience belongs to another, and that an action in assumpsit will lie in favor of the person to whom the money belongs against such municipal corporations to recover the same. In the case at bar it would certainly seem that the City of East St. Louis having, through its officers, obtained the funds which legally and equitably should have gone in payment of anticipation warrants held by appellant, would be liable therefor to the extent that the revenue, which should have gone in payment of said warrants, was so used by said city, and this we believe to be the holding of our Supreme Court in this character of case.

A great deal was said in the oral argument of this case and in the written briefs with reference to the dual nature of a city, and while the authorities hold that a city has such dual relations and that so far as those functions are concerned which are held to be governmental, the city is not liable for the action of its officers, still we do not believe that the duties of cities in the carrying out and the execution of its ordinary affairs as a city comes under that head. In those matters it is liable for its acts and the acts of its officers, just the same as an individual.

For the reaons above set forth, we believe this cause-should be reversed and remanded for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded.


text:
    Margaret Harroun, Appellee, v. T. E. Benton, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Williamson county; the Hon. Benjamin W. Pope, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Statement of the Case.
    Action by Margaret Harroun, plaintiff, against T. E. Benton, defendant, in the Circuit Court of Williamson •county, to recover for personal injuries alleged to have been sustained as a result of the negligent operation of defendant’s automobile. From a judgment for plaintiff for $700, defendant appeals.
    The declaration was in six counts, in general, charging defendant with negligence in the operation of his automobile, and with driving such automobile at a speed in excess of twenty-five miles an hour, with failing to give warning of its approach, and with failing to stop when it was apparent that plaintiff’s horse was frightened thereby. Defendant pleaded the general issue, and on a trial by jury plaintiff recovered a verdict.
    It appeared that plaintiff and a Mrs. Sanders drove to the home of a Mrs. Newton, in a one-horse buggy, for the purpose of buying some eggs. Just prior to the accident plaintiff and Mrs. Sanders were sitting in the buggy on the north side of the road in front of Mrs. Newton’s house, talking to Mrs. Newton. The horse and buggy were facing west. While the women were talking Mrs. Newton stated to plaintiff and Mrs. Sanders that an automobile was crossing the bridge. It appeared that this bridge was about five or six hundred feet east of where the horse was standing.
    It further appeared that plaintiff and Mrs. Sanders at once alighted and plaintiff went around to the horse’s head, and taking hold of the bridle began leading the horse into a lot at Mrs. Newton’s. Plaintiff testified that as soon as she heard that an automobile was coming, she and Mrs. Sanders at once got out, and she took hold of the horse’s bridle; that the automobile was coming at a rate of speed estimated by her at from thirty to thirty-five miles per hour; that the horse at once became frightened, and began to kick and plunge and dragged her into the lot and circled around and finally threw her to the ground. Plaintiff’s chief injury was to her knee, which she testified was still swollen and caused her pain at the time of the trial, some six months after the injury. Evidence for defendant tended to contradict plaintiff as to the speed at which the car was running at the time of the accident, and to show that the horse was inside the lot when the car passed, and did not become frightened until after the car passed.
    Denison & Spieler, for appellant.
    Neely, Gallimore, Cook & Potter, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 1411 —when verdict not disturbed. Where the evidence is conflicting the verdict will not he disturbed on appeal unless on a careful reading of the evidence it can be said that the verdict is against its manifest weight.

2. Appeal and error, § 1411 —when verdict will not be set aside. Where the evidence is conflicting a verdict will not be set aside if the facts and circumstances, by a fair and reasonable intendment, will warrant the verdict, although such verdict may appear to be against the strength and weight of the evidence.

3. Trial, § 153 —what is province of jury regarding evidence. It is the peculiar province of the jury to weigh evidence and to reconcile it if possible, or to decide the issues according to the weight of the evidence, if the evidence is irreconcilable.

4. Automobiles and garages, § 3 —when instructions drawn on theory that law governing operation of automobiles inapplicable to team on private grounds properly refused. In an action to recover for personal injuries alleged to 'have been sustained as a result of the alleged negligent operation of defendant’s automobile, frightening plaintiff’s horse and causing plaintiff to be thrown down and injured, where it appeared that at the time of the accident plaintiff’s horse was in a private lot to which plaintiff had led it from the highway on the approach of the automobile, instructions requested by defendant drawn on the theory that the law governing the operation of automobiles on public highways did not apply to teams on private grounds, held properly refused.

5. Instructions, § 151 —when requested instruction properly refused. Requested instructions substantially covered by instructions already given are properly refused.

6. Instructions, § 96 —how instructions on credibility of witnesses should be framed. Instructions as to the credibility of witnesses should be general in character and should not call particular attention to any witness.

7. Damages, § 127 —when verdict not excessive. In an action to recover for personal injuries, where it appeared' that plaintiff sustained an injury to her knee as well as being otherwise bruised and injured, but where the evidence was conflicting as to the extent of plaintiff’s injuries, a verdict for plaintiff for seven hundred dollars held not excessive, it appearing that at the time of the trial plaintiff was still suffering from the injuries, and was more or less disabled thereby.