text:
    Charles A. Kimmel, Appellee, v. William A. Gray, Appellant.
    Gen. No. 6,121.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. Theodore N. Green, Judge, Presiding.
    Heard in this court at the April term, 1915.
    Affirmed in part and reversed in part.
    Opinion filed November 5, 1915.
    Statement of the Case.
    Bill by Charles A. Kimmel, complainant, against William. A. Gray, defendant, in the Circuit Court of Peoria county, to enforce a written contract. The action was originally at law, but after a demurrer had been sustained, plaintiff obtained an order transferring the cause to the chancery side of the docket with leave to file a bill against defendant, and to add codefendants. The bill when filed set out a written contract between complainant and defendant from which it appeared that the contract was in settlement of a suit between complainant and one not a party to the action.
    It was therein agreed that Kimmel should dismiss said suit, and should release Gray from any claims which Kimmel had against him growing out of transactions in stock, and should quitclaim to Gray and give him the right of possession of certain described real estate, and that Kimmel should assign to Gray a certain judgment Kimmel obtained against Charles D. Dubois, which judgment Gray should use, if necessary, in a certain matter and, if not so used, then that Gray should reassign said judgment, or so much thereof as might remain unsatisfied, to Kimmel. Gray therein agreed to organize a corporation under the laws of Arizona, with a capital stock of 500,000 shares of the par value of $1 per share, of which 20,000 shares should be delivered to Kimmel, out of 200,000 shares. By this agreement certain specified mining properties were to be transferred to the company named, and, if said judgment was not used by Gray, then he should reassign the judgment to Kimmel and said 20,000 shares of stock issued to Kimmel should be a settlement in full of the matters described in said contract, but if said judgment was used by Gray for the purposes specified, then Kimmel was to receive 5,000 more shares of said capital stock. Said stock was to be delivered within six months. The contract contained other provisions not material here. The bill averred that Kimmel had performed his part of said contract; that Gray did organize said mining company upon a capitalization of $500,000 divided into 500,000 shares; that Gray afterwards changed the name of said company to Mexico Development Company, and increased the capital stock to $5,000,000 divided into 5,000,000 shares, without adding anything to the assets of the company, and fraudulently issued to Kimmel only 20,-000 shares of said last-named capital stock, whereas Kimmel was entitled to 200,000 shares of said last-named company besides 50,000 more shares in lieu of the 5,000 shares of the first-named company which Kimmel was to receive for the use of the judgment, which judgment it was alleged Gray used and refused to account for and refused to reassign to Kimmel, though requested by Kimmel to do so. The bill further alleged that afterwards, by agreement between said Mexico Development Company and Gray on behalf of Kimmel, 200,000 shares of said last-named company were placed in the hands of Charles C. Dutch, as trustee, to abide the result of the pending suit, and that Dutch holds said stock in trust, subject to the adjustment of the rights of Kimmel and Gray in this litigation ; that before the beginning of this suit at law Kimmel demanded said stock of Gray and also demanded that the company withhold delivery to Gray of 230,000 shares of stock to which Kimmel was entitled and that Gray refused the demand. The prayer of the bill, besides an injunction, sought to have 230,000 shares of said stock delivered to Kimmel. The bill was twice amended. Gray answered, alleging performance and denying Kimmel’s construction of the contract. Dutch and the Mexico Development Company filed a joint answer, in which they denied that Dutch held any stock for the use of Kimmel. All the defendants alleged that Kimmel had an adequate remedy at law. The cause was referred to the master to take and report the evidence with his conclusions of law and fact. The master took and reported the evidence and reported that Kimmel had performed his part of the agreement; that Gray had performed his part of the agreement as to the 20,000 shares; that Gray had not used the judgment but had testified that he was ready to reassign it and that Kimmel was not entitled to any relief on account of said judgment; that said reorganization and increase of capital stock was made with Kimmel’s knowledge and without objection by him; that 20,000 shares of the reorganized corporation was delivered to and accepted by Kimmel, but under a protest and claim that he was entitled to 230,000 additional shares; that this claim by Kimmel had not been established with sufficient definiteness to justify a decree therefor; that Kimmel could have readily purchased upon the market said shares of stock and has a complete remedy at law, and that a court of equity is without jurisdiction; that after notice from Kimmel the board of directors of the company voted to retain 200,-000 shares of the stock owned by Gray to await the outcome of this litigation, and issued said stock to Charles C. Dutch, and that Gray as a director voted for such action, but that this action was taken to protect the company' and was not in trust for Kimmel. The master overruled objections by Kimmel to said report and these were renewed as exceptions before the Circuit Court. The Circuit Court decreed that Dutch should transfer to Kimmel 180,000 shares of said stock owned by Gray, and that Gray should reassign said judgment within ten days, and to that extent sustained the exceptions to the master’s report.
    Abstract of the Decision.
    1. Specific performance, § 46

      —when equity will compel delivery of corporate stock. Where stock which is easily obtainable in the market is contracted to be sold but is not delivered, the purchaser is left to his remedy at law for damages, no special reason appearing why such purchaser should have the particular stock contracted for, but where the value of such stock is not easily ascertainable, or is not readily obtainable elsewhere, or where some reasonable cause is shown why vendee should have that particular stock, equity will compel its delivery.
    2. Specific performance, § 46

      —when delivery of stock having no market value compelled. One who has a contract right to the delivery of particular stock should be permitted to maintain a bill to compel its delivery where the stock in question has no present market or other tangible value, never having been listed or offered on the market, and is only salable by one man having special skill in Inducing persons of means to buy stock for pure speculation, especially where, owing to the fact that the company issuing the stock has no means of procuring the equipment necessary to operate its plant and is unable to get its product to market, it does not yet appear whether such product can be sold at a profit, since until all these things are accomplished such stock is not likely to have a market or other value which can be fixed or ascertained by the courts.
    From a decree sustaining the exceptions of the master’s report in part and ordering that defendant Dutch transfer to complainant 180,000 shares of said stock owned by defendant Gray, and that defendant Gray reassign said judgment to complainant within ten days, defendant Gray appeals.
    Judson Starr, for appellant.
    W. S. Kellogg, 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.

      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. Presiding Justice Dibell

delivered the opinion of the court.

3. Equity, § 23 —when jurisdiction retained to grant specific performance of contract to deliver stock. In a bill alleging that complainant assigned a judgment to defendant under an agreement that if the judgment was used by defendant in a certain manner defendant should deliver to plaintiff in full payment for such judgment a named number of shares of a particular stock, and where in his answer to the bill defendant denies that he so used the judgment, and offers to reassign it, complainant has the right to resort to a court of equity to obtain a determination of the controverted question as to whether defendant used the judgment in the manner agreed, and if it should be determined that he has not, to compel such reassignment in accordance with the terms of the agreement, defendant’s offer in his answer to reassign not investing complainant with title to the judgment.

4. Equity, § 23—when jurisdiction retained to administer further relief. Where equity has jurisdiction it will proceed to administer all the relief required by the subject-matter of the action, notwithstanding the fact that as to part of the relief required complainant had an adequate remedy at law.

5. Specific performance, § 93 —when decree requiring delivery of specified number of shares of stock erroneous on complainant's theory. In a bill to compel the delivery of shares of particular stock under a contract whereby complainant was entitled to receive 20.000 shares of the stock of a corporation to be formed by defendant, which should be authorized to issue 500,000 shares, of which 400.000 shares should remain in the treasury and 100,000 shares be taken by stockholders, where the capitalization was later increased tenfold, but the proportion of stock retained in the treasury and that issued to stockholders was the same as that of the original capitalization, and where complainant claimed to be entitled to the same proportion of stock under the increased as under the original capitalization, a decree that defendant deliver to complainant 180,000 shares of such stock, held erroneous on complainant’s theory, complainant claiming to be entitled to one-tenth of the total increased capitalization, or 100,000 shares, and it appearing that 20,000 shares had been received by complainant, the amount which should have been decreed to him on his own theory being 80,000 shares.

6. Specific performance, § 91 —when evidence insufficient to sustain claim in bill for additional shares of stock. . In a bill to compel the delivery of shares of particular stock of a corporation to be organized by defendant, where it appeared under a written contract that a named number of shares of such stock had been delivered as provided therein, but complainant alleged that the capitalization of the corporation had been increased by defendant without adding to its assets, and that under a verbal agreement made with defendant after the execution of the written contract plaintiff was entitled to an additional number of shares of such stock, such additional number claimed bearing the same proportion to the total capitalization as increased as the number of shares delivered bore to the original capitalization, evidence held insufficient to sustain the claim made in the bill.

7. Specific performance, § 13 —when agreement for delivery of additional shares of stock too uncertain to be enforceable. In a bill to compel the delivery of shares of particular stock, an agreement alleged in the bill that defendant verbally agreed to deliver a number of shares of such stock in addition to the number already delivered under a written contract, which additional number should bear the same proportion to the total capitalization as the number actually delivered bore to the original capitalization, held too indefinite and uncertain to be enforced by a court of equity.

8. Corporations, § 169 —when person not in possession of stock certificate a stockholder. Where a person is shown by the records of a corporation to be a stockholder therein, and such person acts as such stockholder after the organization of such corporation, and obviously considers himself a stockholder, he." will be regarded as such although he never had manual possession of the stock certificate, it appearing that in pursuance of a contract such certificate was duly made out in his name and delivered to another person to be delivered to such stockholder, but never actually delivered.

9. Contracts, § 309 —what constitutes performance of contract to deliver stock. A contract for the delivery of shares of particular stock is fully performed, although manual possession of the certificate of such stock is never delivered to vendee, where it appears that the certificate was duly made out by the proper officers of the company issuing the stock and delivered to vendor to be delivered to vendee, and afterwards vendee acted as such stockholder, and obviously considered himself such.

10. Specific performance, § 77 —when necessary that bill allege conversations taking place after execution of contract. In a bill to compel the delivery of shares of particular stock where the bill relies on a contract set out therein, rights’ based on oral conversations which took place after the execution of the contract cannot be taken advantage of without some pleading alleging such rights.

11. Specific performance, § 13 —when equity will not enforce oral contract. An oral contract which is uncertain in its terms and which is not adequately proved will not be enforced by a court of equity, although properly pleaded.

12. Corporations, § 83 —when consent of minority stockholder not necessary to increase of capital stock. The consent of a stockholder owning a small minority of the stock is not necessary in order to enable a stockholder owning a large majority of the stock to increase the capitalization, although such minority stockholder received no additional shares when the capitalization was increased, and although such majority stockholder received a large number of additional' shares, where it appears that all minority stockholders, were treated alike, and the evidence shows that such majority stockholder had conveyed valuable property to the corporation in return for the additional stock received by him.

13. Specific performance, § 91 —when evidence sufficient to show that judgment not used as contemplated in contract. In a bill to compel the delivery of shares of particular stock under a contract whereby complainant assigned to defendant a judgment and provided that if defendant used the judgment as provided by the contract defendant should deliver complainant a named number of the shares of such stock, but otherwise should reassign the judgment to complainant, evidence held to show that defendant did not use the judgment as provided in the contract.

14. Specific performance, § 93 —when reassignment of judgment properly decreed. In a bill based on a contract which provided that complainant should assign to defendant a judgment, which, if used by defendant in a manner provided by the contract, should be paid for as provided thereto, and, if not so used, should be reassigned to complainant, a decree that defendant reassign such judgment to complainant, held proper, where it appeared from the evidence that the judgment was not used by defendant as contemplated by the parties.


source: Caselaw Access Project

author: Mr. Justice Carnes

license: Public Domain

text:
    Chicago & Alton Railroad Company, Appellant, v. Woolner Distilling Company, Appellee.
    Gen. No. 6,124.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. Theodore N. Green, Judge, presiding.
    Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed November 5, 1915.

      Statement of the Case.
    Action by the Chicago & Alton Railroad Company, plaintiff, against the Woolner Distilling Company, defendant, in the Circuit Court of Peoria county, to recover for demurrage. Prom a judgment for defendant, plaintiff appeals.
    This is one of six suits brought by six railroads against the appellee, Woolner Distilling Company, for demurrage. Two of the suits have before reached this court, and are reported as Woolner Distilling Co. v. Peoria & E. Ry. Co., 136 Ill. App. 479, and Chicago, P. & St. L. Ry. Co. v. Woolner Distilling Co., 160 Ill. App. 192. The present case, with four of the others, was referred to a referee by an order of court, to find and report, the facts, and with power to take evidence, which should be reported with conclusions of fact therefrom. The referee reported in accordance with the order, in part based on evidence heard and in part on an agreement of the parties, in which report was included a finding as follows: “I further find from the evidence that the defendant detained cars on which plaintiff is entitled to claim demurrage as set out in ‘Schedule A,’ and made a part hereof, the total number of days’ detention being 2,985 days.
    “I further find from the evidence that the total number of cars for the Woolner Distilling Company standing each day in the Kickapoo Tracks waiting unloading from March 30,1904, to March 23,1905, are as set out in ‘ Schedule B ’ hereto attached and made a part of this report, the data for Schedule ‘ B ’ being said ‘Exhibit 39B.’ ”
    The court overruled exceptions to the report, and the cause was tried by jury, in which uncontroverted evidence was introduced by the plaintiff that there was a customary and usual charge for holding cars longer than “free time” of one dollar a day excluding holidays and Sundays. Then the plaintiff offered the referee’s report with the schedules made a part of it, as showing the amount of time of delay on each of the cars, and the number of days that the cars in question were detained by the defendant. The defendant objected on the ground that the report is a part of the pleadings in the case, and that the findings of the referee are not proof of the acts in the casé. The court sustained the objection, stating as a reason: “It is conceded by both plaintiff and defendant in this case and statements in open court to the jury were made, both on behalf of the plaintiff as well as the defendant, that there would -be no dispute as to the time of shipment of the various cars carrying coal from Springfield and elsewhere to Wesley City or the City of Peoria the time of the arrival of the cars carrying coal either to Wesley City or Kickapoo Yards in the City- of Peoria, or the time the cars were, in fact, delivered to the defendant company at its plant at Peoria.” Then plaintiff introduced in evidence a schedule that was part of the report and suggested that the heading of the page reading “Time for which plaintiff is entitled to charge demurrage” be eliminated, and defendant’s counsel said they would not object and stated that they would agree that Exhibit 39B is a true history of the cars as disclosed by the books of the railroad company, and by the defendant’s books. Then other schedules and parts of the report were offered separately by the plaintiff, and the court sustained objections to their introduction on the ground that it was not a matter for the jury to pass upon. The plaintiff introduced evidence of admissions by the manager of the defendant that there was something due the plaintiff for demurrage charges, and rested. The defendant then offered evidence tending to account for the delay in unloading cars, attributing such delay to the nonaction and misconduct of the plaintiff.
    The jury found for defendant and the court overruled a motion by plaintiff for a new trial.

      Abstract of the Decision.
    1. Carriers, § 211*—when evidence insufficient to sustain finding that nothing due for demurrage. In an action to recover for demur-rage by reason of unreasonable delay in unloading freight cars, evidence held, when read as an entirety, not to warrant the conclusion that nothing was due from defendant to plaintiff.
    2. New trial, § 52*—when verdict should be set aside as against evidence. In an action where the evidence shows that plaintiff is entitled to recover for some amount, it is error to deny a motion for a new trial after a verdict for defendant.
    3. Appeal and error, § 783*—when failure of judge to attach certificate to additional bill of exceptions fatal. The Appellate Court will not consider on review questions presented in an additional bin of exceptions not certified to by the judge of the court appealed from.
    Frank T. Miller and John M. Elliott, for appellant ; Stevens, Miller & Elliott and Silas H. Strawn, of counsel.
    Weil & Bartley and Quinn & Quinn, for appellee.
   Mr. Justice Carnes

delivered the opinion of the court.


text:
    C. Hacker Company, Appellant, v. City of Joliet et al., Appellees.
    Gen. No. 6,129.
    1. Stipulations, §16

      —when stipulation construed as providing for final judgment whether injury to land by vacation of street actionable. In an action to recover compensation for depreciation in the value of land due to the vacation of part of a street in the neighborhood, where after testimony had been introduced as to the amount of such depreciation parties agreed that the court should determine first whether plaintiff could recover on the evidence introduced, and, if the court so held, further evidence of depreciation should be introduced, and if not, plaintiff would appeal, held that the intention of parties in making the agreement was to obtain a final judgment whether the injuries complained of were actionable.
    2. Municipal corporations, § 450*—when opinion evidence as to depreciation in value of land due to vacation of street inadmissible. In an action to recover compensation for depreciation in the value of land as the result of the vacation of part of a street in the neighborhood, opinion evidence as to such depreciation is incompetent until the question as to liability for the injury causing the depreciation has been determined,
    3. Trial, § 195

      —when verdict improperly directed. Where plaintiff has a right of action to recover compensation for depreciation in the value of his land due to the vacation of part of a street in the neighborhood, it is error to direct a verdict for defendant if there is any evidence of a pecuniary loss as a result of such vacation, whether such loss be great or small.
    4. Municipal corporations, § 450

      —when evidence sufficient to show decrease in traffic after vacation of part of street. In an action to recover compensation for depreciation in the value of plaintiff’s land as a result of the vacation part of a street in the neighborhood, evidence held to show that the amount of traffic by vehicles past plaintiff’s property had been materially decreased as a result of such vacation.
    5. Words and phrases—market value of urban property. The market value of urban property depends much upon the amount of travel past such premises, and is therefore increased or decreased by considerations affecting such travel, such as the location of other properties of public improvements, and the improvement or non-improvement of the streets leading to or past such property. '
    6. Municipal corporations, § 424

      —when abutting property owner no right to damages for vacation of street. Generally an owner of property abutting a public street has no right of action because of the vacation of a street at some distance from his property, or because of the suspension or removal of some business, public or private, which drew travel in the direction of such property, although the value thereof, is lessened thereby.
    7. Municipal corporations, § 424

      —when abutting property owner not entitled to damages for vacation of street. Owners of land abutting a public street are not entitled to damages by reason of the vacation or discontinuance of a neighboring or other street, or of the same street when the point where the street is vacated or discontinued is beyond the cross street next after the location of such owner’s land, although its value may be lessened by such vacation or discontinuance.

      8. Action, § 5

      —when private individual no right of action for act obstructing a public right. No private action will lie for any act obstructing a public and common right where the damages sustained thereby are of the same hind as those sustained by the general public, although such injury has a much greater effect on the value of the property of the owner seeking compensation than on the value of property of other owners.
    9. Action, § 25

      —what individual must prove to entitle him to redress for interference with common public right. An owner of a house must be compensated for a physical interference with a right which the owner is by law entitled to use in connection with the house except where the right interferred with is one which is possessed in common with the public, in which case to entitle him to compensation the owner must show that the connection of the right with the house is peculiar in some way and sufficient to distinguish his use of the right from the use enjoyed by the public.
    10. Words and phrases—access. The courts use the Words ‘‘ingress” and “egress” interchangeably with the word “access.”
    11. Municipal corporations, § 423

      —when right of access to property abutting street may not be interfered with. The right of an owner of property abutting a public street to access thereto, from or by way of such street, and his right of ingress and egress to and from such street cannot be interfered with by the construction of a public improvement without compensation.
    12. Municipal corporations, § 423

      —what is nature of right to access to property abutting street. Owners of property abutting a public street have, as an incident to such ownership, a right of access by way of the streets.
    13. Municipal corporations, § 423

      —what constitutes access to real estate from street. It is difficult to define exactly the meaning of the word “access” as used with reference to real estate abutting a street, its meaning not being confined to the exact point where such real estate abuts upon such street, and being not capable of being so extended as to make an interference with or obstruction of the use of such street at a point two or three blocks away from such land an interference with or obstruction of such access, unless it appears that such owner is specially and particularly injured thereby.
    14. Municipal corporations, § 424

      —when inconvenience in reaching a street formerly accessible from partly vacated street common to all using street. Where the vacation of part of a street on which an owner’s property abuts compels persons passing from such owner’s property to go considerably further to reach a street formerly accessible directly from the street vacated, the inconvenience sustained thereby is one which results to all wherever located who have occasion to use that route.
    15. Municipal corporations, § 424

      —when immaterial that damage sustained by abutting property owner from vacation of street greater than that of others. There is no significance in the fact that an owner of property abutting a public street sustains damage in the depreciation of the value of such property by reason of the vacation of part of such street “in excess” of that sustained by other owners similarly situated if the damage sustained by such owner is of the same kind as that sustained by such other owners.
    16. Municipal corporations, § 424

      —when closing of street injury to abutting property owner distinct from public injury. The closing of a street, whereby the street is converted -into a blind court in front of the premises of an abutting owner, is an injury distinct from that suffered by the general public.
    17. Municipal corporations, § 424

      —when closing of street damnum absque injuria. Damage sustained by an owner of property abutting a public street as a result of the vacation of a street or alley is damnum atsque injuria and gives no right of action where the damage sustained is of the same kind and character as that sustained by the general public, differing therefrom only in degree.
    18. Municipal corporations, § 424

      —when abutting property owner not entitled to damages for vacation of part of street. In an action to recover compensation for depreciation in the value of land owing to the vacation of part of the street which plaintiff’s land abutted, held that plaintiff had no cause of action where it appeared that after such vacation plaintiff still'had unobstructed access to his property from one end of such street, and that as to the other end, such access was only partially obstructed, pedestrians being able to pass along the street without obstruction, and vehicles being compelled merely to travel several blocks further in order to reach those parts of the city which before such vacation might be reached directly by such street.
    19. Municipal corporations, § 424

      —when depreciation in value of land abutting partly vacated street due to proper operation of railroad. In an action to recover compensation for depreciation in the value of land due to the vacation of part of a street which the land abutted, such vacation being the result of an elevation of an existing railroad right of way in obedience to a municipal ordinance, and also by reason of the fact that after such tracks were elevated the trains of another railroad company were operated on such right of way, held that the depreciation complained of arose solely from the legitimate and proper operation of the railroad, although there was an increase of noise, dust and confusion, and although plain-tie’s light and air were appreciably obstructed by the construction of the embankment, it appearing that there was no physical interference with the corpus of plaintiffs property.
    20. Municipal corporations, § 421

      —when owners of city property not entitled to recover for decreased value due to legitimate use of other property. The market values of all urban properties are subject to the increase and decrease due to legitimate uses which adjacent owners may make of their lands, and the owners of such urban properties are only required to pay for increased values and are not allowed to recover for decreased values as a result of such uses.
    21. Municipal corporations, § 450

      —when person purchasing property adjacent to railroad tracks presumed to purchase subject to legitimate use of right of way. One who purchases property adjacent to an existing railroad track, and conducts on such property a manufacturing business to which the advantage of being near such a track is absolutely necessary, is presumed to have so purchased with a view to such advantages and to the disadvantages which may arise in the legitimate use of the right of way for railroad purposes.
    Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed November 5, 1915.
    E. Meers and J. W. D’Arcy, for appellant.
    Frank J. Wise, Snapp, Heise & Snapp and O’Donnell, Donovan & Bray, 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.

      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.

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

   Mr. Justice Carnes

delivered the opinion of the court.

C. Hacker Company, the appellant, owned for many years prior to 1911 a manufacturing plant in the City of Joliet fronting westerly and abutting eighty feet on Collins street, and extending easterly along the right of way of the Michigan Central Railroad Company on the south about three hundred feet. It acquired its title after the purchase and occupancy by the railroad company of its adjacent right of way, and from the same source. In 1911 the railroad company, in elevating its tracks pursuant to an ordinance of the City of Joliet requiring such elevation,' permanently closed Collins street to travel by vehicles at a point about thirty feet south of appellant’s property where a subway fifteen feet wide for foot passengers only was constructed in the place of the grade crossing of the Michigan Central Railroad Company that had Before been at that place. The Chicago, Rock Island & Pacific. Railway Company, after the elevation of the tracks, operated its trains on the right of way of the Michigan Central Company adjacent; to appellant’s premises and across Collins street. The result of this changed condition was to increase the traffic on the Michigan Central right of way adjoining appellant’s premises, and because thereof, and perhaps also because of the elevation of the tracks, to increase noise, dust, soot, cinders, odors, smoke and vibration occasioned by the operation of the road. The raising of the embankment south of appellant’s premises to some extent obstructed the view therefrom. This action was brought against the City of Joliet and the two companies to recover for the alleged injuries occasioned by the improvement. The principal claim is that the closing of Collins street to travel by vehicles has interfered with appellant’s ingress to and egress from its premises.

To a declaration setting out the facts above stated, appellees pleaded the general issue. On a jury trial appellant introduced evidence of what had been done, and of the opinions of witnesses that the market value of appellant’s premises had been much diminished thereby. Then it was agreed by counsel that the court should determine whether there was any basis for recovery on the evidence so far introduced. If he should hold there was, then further testimony should be introduced. If he held there was not, then the plaintiff would appeal. Each of the appellees moved the court to exclude all evidence (specified in some detail) upon which a verdict could be based, apparently upon the theory that none of the injuries which the evidence tended to prove gave appellant a cause of action. Appellees also moved the court to strike out the opinion evidence of witnesses as to the depreciation of the market value of appellant’s premises on the theory that the examination of the witnesses showed that their estimate of damages was based, in part at least, on elements that could not be properly considered. The court sustained all these motions and granted further motions by appellees to direct a verdict of not guilty. Judgment on the verdict followed, from which this appeal is prosecuted.

The intention of the parties and the trial court was to obtain a final judgment as to which, if any, of the injuries complained of are actionable. "Until that question is settled, opinions of witnesses cannot be obtained as to depreciation in market value from injuries that give a legal cause of complaint. We are inclined to hold that if appellant has a cause of action for any injury resulting from the change in Collins street there was evidence tending to show a pecuniary loss from that cause alone, and, if so, the court erred in directing a verdict for the defendants, and it is immaterial on that question whether the injury was great or small.

Collins street, as platted and used before the time in question, entered Washington street about one hundred feet south of appellant’s property. Washington street runs in an east and west direction, and Jefferson street, running in a southeasterly direction, enters it at the same point. The Michigan Central right of way extends east and west past this point of intersection of said three streets. One hundred and fifty feet north of the north line of appellant’s property on Collins street is the south line of Van Burén street, which runs parallel with Jefferson street. Prior to the passage of the traffic elevation ordinance the right of way of the Bock Island Company paralleled the right of way of the Michigan Central Company, and was about two blocks north of it on Collins street. The Bock Island Company abandoned the use of that right of way on Collins street and operated its trains, as before stated, over the elevated right of way of the Michigan Central Company. Formerly the direct access to appellant’s factory was, as now, from Collins street only, leading north connecting with Van Burén street and south connecting with Jefferson and Washington streets. Access from the north is in no way disturbed. The elevation of the tracks narrowed Jefferson street to a width of thirty feet where it connects with Collins street, but that space allows free passage of vehicles so that there is no material interruption of travel from Collins street south to and on Jefferson street. But the change in Collins street requires vehicles from south of the improvement to go about two blocks further to reach appellant’s property than was before necessary. The territory south of this point of interruption on Collins street is thickly populated, and the evidence shows that this change of route for vehicles approaching from the south has materially decreased traffic by vehicles past appellant’s property on Collins street. The market value of urban business properties much depends upon the amount of travel by the premises. The location of other properties or public improvements, the improvement or nonimprovement of streets leading to and by a property, each and all tend to increase or decrease travel and thereby increase or decrease the desirability and market value of premises. As a rule the owner of property abutting on a public street has no legal ground for complaint if travel is diverted from his premises because of the vacation of a street at some distance therefrom, or because of the suspension or removal of some business, public or private, that drew travel in his direction. Our Supreme Court in Illinois Malleable Iron Co. v. Lincoln Park Com’rs, 263 Ill. 446, quotes with approval from Elliott on Boads and Streets (vol. 2, 3rd Ed., sec. 1181) as follows: “Owners of land abutting upon neighboring streets, or upon other parts of the same street, at least when beyond the next cross-street, are not, however, entitled to damages, notwithstanding the value of their lands may be lessened by its vacation or discontinuance.”

In City of Chicago v. Union Building Ass’n, 102 Ill. 379, on page 393, the court quotes with approval from American Law Register as follows: “For any act obstructing a public and common right, no private action will lie for damages of the same land as those sustained by the general public, although in a much greater degree than any other person;” and again quotes from McCarthy v. Metropolitan Board of Works, L. R. 7 C. P. 508, to the effect that there arises a claim of compensation for a physical interference with a right which an owner of a house is entitled by law to make use of in connection with the house, unless the right is one which the owner possesses in common with the public, in which case there must be something peculiar to the right in its connection with the house to distinguish it from that which is enjoyed by the rest of the world. Appellees’ counsel undertake to distinguish between interference with access and interference with ingress and egress, but the courts use the terms interchangeably, and it is true that municipal authorities in making authorized improvements in streets cannot, without compensation, interfere with a property owner’s access to his property from or by way of the street, or with his ingress and egress from and to the street. It is said in Illinois Malleable Iron Co. v. Lincoln Park Com’rs, supra, on page 451, citing several Illinois cases, that: “Owners of property bordering upon a street have, as an incident of their ownership, a right of access by way of the streets which cannot be taken away or materially impaired without compensation.”

The difficulty lies in exactly defining this right of access. That it cannot be confined to the immediate access from the street on which the premises abut is clear on the authority of Rigney v. City of Chicago, 102 Ill. 64, where an injury from constructing a viaduct along Halsted street and across Kinzie street in Chicago, about 220 feet west of the property owner’s premises fronting on Kinzie street, cutting off communication with Halsted street by way of Kinzie street, was held to give a right of action. That it cannot be extended to interference with an abutting owner’s access to his property by vacating or obstructing a street two or three blocks away is equally clear from the authority of City of Chicago v. Union Building Ass’n, supra, which case was decided at the same term of court, and in which it was held that the closing of LaSalle street in Chicago by the Board of Trade building, three and a half blocks from the owner’s abutting property, did not give a right of action because the owner was not specifically or particularly injured, and while it was true that persons passing from the owner’s property to Washington street to VanBuren street or to the depot to the south would have to go further than they otherwise wpuld, that it was the same kind of injury that will result to every one wherever located having to pass that route. It is said in that case that it must appear that the owner “has sustained a special damage with respect to his property in excess of that sustained by the public generally.” A similar use of the word “excess” is found in other cases, and has given rise to contention that a right of action may be based alone on the proposition that the plaintiff’s damages exceed those of others and the general public. But there is no significance in the fact of excess of damages if they are of the same kind as those sustained by the general public. This is made clear by the court in Village of Wennetka v. Clifford, 201 Ill. 475, where earlier authorities are cited; but that case holds on the authority of the Rigney case, supra, that the closing of a street, turning it into a blind court in front of the abutting owner’s property, is an injury distinct from that suffered by the public. City of East St. Louis v. O’Flynn, 119 Ill. 200; Parker v. Catholic Bishop of Chicago, 146 Ill. 158; Guttery v. Glenn, 201 Ill. 275; and Saunders v. City of Chicago, 212 Ill. 206, are among other eases illustrating the rule that damage sustained by an abutting property owner, from the vacation of a street or alley, of the same kind and character sustained by the general public, differing only in degree, gives no right of action. It is damnum absque injuria. If there had been an obstruction south of appellant’s property, turning Collins street in front of appellant’s premises into a blind court and cutting off access from the south, appellant would have thereby sustained an injury of different kind from that sustained by the public under the authority of the Rigney case, supra. If the obstruction had been 100 feet further south, leaving appellant uninterrupted egress at the south from Collins street to Washington street, as well as Jefferson street, it would have no right of action under the authority of the Union Building Ass’n case, supra, and later cases above cited, although the change in the street might have very materially lessened travel on Collins street passing appellant’s premises. Collins street is not turned into a blind court. Appellant still has free access not only to and from the street abutting its property and to the north, but also from that street directly south for foot passengers and directly south for vehicles excepting they must travel about two blocks further than heretofore. The inconvenience suffered by appellant in being compelled to travel this additional distance to reach that part of the city lying south of the improvement is of the same kind and character that is suffered by all people who desire to travel with vehicles in that direction, differing only in degree. The injury falls within the rule announced in the Union Building Ass’n case, supra, and not within the rule announced in the Rigney case, supra, and therefore though the market value of appellant’s property may have been diminished by the change in Collins street, no legal cause of action accrued therefrom.

We are of the opinion that the injuries complained of other than the obstruction of Collins street arise solely and only from the legitimate and proper operation of the railroads on the right of way adjacent to appellant’s premises. There is no physical interference with the corpus of appellant’s property. Light and air may be appreciably obstructed by the raising of the embankment as it would have been by the erection of a building on the land had it been owned by a priyate owner, and there may be an increase in noise and dust and confusion as there might be from a legitimate business of a private owner on adjacent premises. There may be a decrease in market value of appellant’s premises because of the use that the railroad company is making of its premises. All urban properties are subject to increase and decrease in market value because of uses legitimately made by other nearby owners of their land. They are only required to pay for increased value and not permitted to recover for decreased value so occasioned. Appellant acquired its property after the railroad company acquired and devoted to railroad purposes its right of way. Appellant no doubt purchased its property so located because of certain advantages arising from its proximity to the railroad, advantages absolutely necessary to the conduct of a manufacturing business. It must be presumed to have acquired its property with a view not only to those advantages but also to all disadvantages that might arise in the legitimate use of the right of way for railroad purposes. It had before the improvement a connection by means of a switch track with the railroad, and it is not claimed that this connection has been materially changed or disturbed by the improvement. We hold on the authority of Galt v. Chicago & N. W. Ry. Co., 157 Ill. 125, and Chicago & E. I. R. Co. v. Loeb, 118 Ill. 203, and authorities in those cases cited and discussed, that appellant has no legal grounds for complaint because of anything proven in regard to the operation of the road.

The trial court, therefore, did not err in directing a judgment of not guilty, and the judgment is affirmed.

Affirmed.


author: Mr. Justice Niehaus

text:
    First National Bank of Rock Falls, Appellant, v. George Deneen, Appellee.
    Gen. No. 6,087.
    (Not to be reported in full.)
    Appeal from the Circuit Court of McHenry county; the Hon. Charles H. Donnelly, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed November 5, 1915.
    Statement of the Case.
    Action by the First National Bank of Rock Falls, plaintiff, against George Deneen, defendant, in the Circuit Court of McHenry county. Plaintiff obtained a judgment against defendant by confession, on a narr and cognovit, and execution issued thereon. At the same term defendant filed a motion supported by affidavit to set aside and vacate the judgment and for leave to plead. On the motion, without formal notice to plaintiff, the court entered an order staying the execution and giving defendant leave to plead. The court overruled a demurrer to the pleas filed, and plaintiff electing to stand by its demurrer, entered an order vacating and setting aside the judgment and entered judgment in bar. From a judgment in bar, plaintiff appeals.

      Abstract of the Decision.
    1. Judgment, § 82

      —when showing sufficient to set aside judgment Toy confession. On a motion supported by an affidavit to set aside a judgment obtained by confession on a narr and cognovit, and for leave to plead, held that the showing made by defendant was sufficient to sustain an order staying the execution, and granting such leave.
    2. Judgment, § 78

      —when court right to open judgment and allow defendant to plead toithout notice. The right of a court to make an order staying an execution on a judgment by confession and'granting defendant leave to plead does not depend upon notice to plaintiff.
    3. Notice, § 62

      —when party compelled to take notice of court proceedings. A plaintiff who appears for the purpose of having judgment entered by confession is properly in court and is compelled to take notice of all subsequent proceedings in relation thereto.
    4. Judgment, § 78

      —when immaterial that plaintiff had no formal notice of order staying execution and granting right to plead. Where an order is entered, staying an execution and granting defendant leave to plead, it is immaterial that plaintiff had no formal notice of such action by the court, where it appears that after the pleas were filed plaintiff actually took notice of such action by making a motion to strike the pleas, and to vacate and set aside the order, and raised all the questions it could have raised if it had had notice of the motion for leave to plead, it thereby appearing that plaintiff lost no rights by such want of notice.
    5. Pleading, § 312

      —when verification of plea not necessary. Section 55 of the Practice Act (J. & A. fl 8592), does not require verification of pleas filed in pursuance of an order staying an execution and granting leave to plead, since such statute applies only where plaintiff files with his declaration an “affidavit showing the nature of his demand, and the amount due him from the defendant, after allowing to the defendant all his just credits, deductions and set-offs, if any,” and has no application to a case where the only affidavit filed with the declaration is the one usually filed in cases of judgment by confession, in an action to recover on a note, verifying the handwriting and the genuineness of the signature of the maker of the note.

      J. E. Barber and D. T. Smiley, for appellant, Mc-Millen & McMillen, of counsel.
    Edward D. Shurtleff, for appellee.

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

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

   Mr. Justice Niehaus

delivered the opinion of the court.

6. Pleading, § 215 —what questions demurrer to special pleas raises. A demurrer to special pleas raises the question of the sufficiency of the pleas as a defense to the action.

7. Pleading, § 102 —when not necessary that all special pleas in tar he sufficient. In order to support a judgment in bar, entered on special pleas, it is sufficient if any of the pleas filed contained matters constituting a bar to the action, for which reason it is not necessary in such case to find that all the pleas were sufficient in law to constitute a defense, or to bar plaintiff’s action.

8. Pleading, § 200 —what demurrer admits. A demurrer admits as matter of law that the matters set up in the pleading demurred to are true, and such matters must be so regarded by the court in passing on the demurrer.

9. Bills and notes, § 348 —when special plea in har sufficient. In an action to recover on a note, a judgment in bar held not erroneous, where on demurrer to defendant’s plea in bar it appeared that such plea alleged matter constituting a sufficient and complete defense to the action.


text:
    R. S. Wall, Appellee, v. Elgin, Joliet & Eastern Railway Company, Appellant.
    Gen. No. 6,116.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding.
    Heard in this court at the October term, 1915.
    Reversed with finding of facts.
    Opinion filed November 5, 1915.
    Finding of facts modified and rehearing denied December 8, 1915.
    Statement of the Case.
    Action by R S. Wall, plaintiff, against the Elgin, Joliet & Eastern Railway Company, defendant, in the Circuit Court of Lake county, to recover for personal injuries sustained by plaintiff, a switchman, in jumping off a car, whereby plaintiff was ruptured. From a judgment for plaintiff for $3,500, defendant appeals.
    The declaration alleges that the defendant is a common carrier, and on the 28th day of March, 1914, was engaged in interstate commerce at Gary, Indiana; and that at that time and place, the plaintiff, while in the defendant’s employ as switchman, was at work, as such switchman, in the nighttime, and in the dark, in switching certain cars which were being used by defendant in carrying interstate commerce.
    According to the testimony of plaintiff, he was working in defendant’s switch yards at Gary on March 27, 1914, and was engaged in the work of classifying freight trains. The work of grouping the cars together is done in the switch yards, and on certain side tracks and stub tracks, and the tracks leading to them. On the night in question plaintiff was assisting as switchman, in the work of classifying such cars; and while so engaged was riding on a so-called gondola freight car, that had been kicked onto a track which was called a pocket track. It was his particular, business at this time to stop this car, by setting the brake and then jump off. The brake was located on a platform on -the rear of the ear, about on a level with the floor of the car, and about four feet from the ground. The brake on the car in question was out of order; the gravity dog had dropped out of the ratchet so that the ratchet would not hold; and it was therefore, necessary for plaintiff to keep hold of the tightening brake, and bring the car to a stop; and he was thereby on the car longer than if the brake had been in order; but he had about stopped the movement of the car, and was ready to get off when he noticed another car, about fifteen feet away, coming towards the car on which he was riding, and fearing a collision, walked across to the opposite side, and jumped off of the platform to the ground. In jumping off, he struck the ground “stiff legged,” thereby causing more jar than would be ordinarily experienced from such a jump. A few minutes after he had jumped, he felt a ticklish pain through his groin, which indicated that he-had been ruptured by the jump.
    Abstract of the Decision.
    1. Master and servant, § 312

      —what are dangers incident to nature of work, of switchman. In an action by a switchman under the Federal Employers’ Liability Act to recover for personal injuries sustained by jumping off a platform car to the ground in a railroad freight yard, a distance of four feet, in order to avoid an impending collision with another car also being switched, where it appeared that plaintiff was ruptured as a result of striking the ground “stiff-legged” when he jumped, plaintiff’s act in jumping held, an ordinary and usual incident in his employment, the “stiff-leggedness” of the jump not being caused by the impending collision, and there being nothing unusual in such a collision when cars were being switched, so that it was obviously necessary for plaintiff to jump off such cars to avoid such collisions.
    2. Master and servant, § 312

      —when servant assumes risks. A servant assumes the risks, hazards and dangers which are ordinary and usual incidents to the employment of such servant, and the master is not liable for injuries resulting therefrom.
    3. Master and servant, § 302a

      —when defense of assumption of risks a/oailable under Federal Act. The Federal Liability Act of 1908 does not abolish the defense of assumption of risk by the servant in actions where the injury sought to be recovered for does not arise from the want of or a defect in an appliance with which such act requires cars moving in interstate commerce to be equipped.

      The only apparent effect of the impending collision, on plaintiff’s jumping, was to cause him to jump off on the opposite side; but the ground on that side was just as level and not any further from the platform of the car.
    W. C. Upton and Knapp & Campbell, for appellant, William Beye, of counsel.
    Charles P. Molthrop, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

4. Master and servant, § 302a —when switchman jumping to ground to avoid collision assumes rislc under Federal Act. In an action by a switchman under the Federal Employers’ Liability Act to recover for personal injuries sustained by jumping off a platform car to the ground, a distance of four feet, to avoid an impending collision in a railroad freight yard between such car and another car which was also being switched, held that plaintiff assumed the risk.


text:
    County of Lake, Appellee, v. Carl P. Westerfield, Appellant.
    Gen. No. 6,138.
    1. Officers, § 52

      —what is nature of liability for interest on public moneys. The decisions which hold that in the absence of a controlling statute public officers are entitled to the interest collected on public moneys in their hands and are not obliged to account therefor are based mainly on the consideration that an absolute liability is imposed on the officer for the payment of the principal sums collected by him, in which ease it is said that he is not merely the custodian or bailee thereof, and does not assume the liability of a trustee in regard to such moneys.
    2. Counties, § 49

      —what is nature of liability of county treasurer for interest on public funds. A county treasurer is an absolute insurer of the fund coming to his hands in the sense that he cannot excuse a failure to pay it over on grounds which would excuse a trustee for such failure.
    3. Counties, § 49

      —why funds held by county treasurer should not be regarded as private property. Plurd’s Rev. St., ch. 36, sec. 4 (J. & A. ¶ 2908), providing that a county treasurer shall receive and safely Iceep all revenues and funds authorized by law to be paid to him, and disburse the same pursuant to law, and section 81 of the Criminal Code (J. & A. ¶ 3625), making it a penal offense for a country treasurer for his own use to loan any of the money intrusted to him, forbid the conclusion that such funds should be regarded as the private property of the officer.
    4. Officers, §52

      —when interest money m hands of officer in official capacity. Interest received by a public officer on funds deposited in banks by him in his official capacity is an increment to such funds, hence the right to such interest is vested in the public, and on its receipt by the office such interest becomes money in his hands in his official capacity.
    5. Counties, §49

      —how liability of county treasurer for interest determined. The disposition of interest received by a county treasurer on deposits of public money in his hands in his official capacity is controlled by section 10 of article X, of the Constitution, providing that all fees or allowances received by a public officer in excess of the amounts allowed to such officer by the county board shall be paid into the county treasurer, and by section 52 of the Fees and Salaries Act (J. & A. ¶ 5654), requiring that all fees, perquisites and emoluments received by county officers of the certain classes in excess of the amounts allowed to such officers by the county board shall be paid into the county treasurey.
    6. Officers, § 62

      —what constitutes fees, perquisites and emoluments. The words “fees, perquisites and emoluments,” used in section 52 of the Fees and Salaries Act (J. & A. ¶ 5654), are sufficiently comprehensive to include every payment to a public officer in his official capacity.
    7. Contribution, § 1

      —when doctrine of compelling contribution among wrongdoers inapplicable. The cases which hold the sureties on the bond of a public officer are not entitled to indemnity from their principal as being involved in a contract to perform an illegal and criminal act, the law not compelling contribution among wrongdoers, or enforcing illegal contracts, have no application to an action by an innocent plaintiff against a defendant who is charged with an illegal act.
    8. Counties, § 49

      —when county treasurer must pay fees into county treasury. Full force and effect must be given to the requirements of section 52 of the Fees and Salaries Act (J. & A. ¶ 5654), requiring that all fees, perquisites and emoluments received by county officers of certain classes in excess of the amounts allowed to such officers by the county board must be paid into the county treasury, as is shown by the construction given to the statute by the Supreme Court, holding that fees received by clerks of Circuit Courts in naturalization cases under the Federal Act of 1908 are fees of the office, which under the statute must be paid into the county treasury. .
    9. Counties, § 49

      —how Fees and Salaries Act construed relative to collection of and accounting for interest by county officers. Although section 12 of the Cities, Towns and Villages Act (J. & A. ¶ 2061) in express terms requires the treasurer of a sanitary district to collect and account for interest on public moneys deposited by him in banks, and while section 52 of the Fees and Salaries Act (J. & A. ¶ 5654) does not in terms require county officers so to collect and account, yet this consideration is not controlling of the construction of the latter statute so as to require an inference that the Legislature therein intended to recognize the right of the county officer to retain interest received on public funds, or as authorizing or acquiescing in a misappropriation of public funds in the absence of express statutory provisions, section 12 merely requiring the collection and accounting for such interest, where without such provision such officer would not be required to collect interest.
    10. Officers, § 62

      —lohat is custom among public officers regarding interest on public funds. It is common knowledge that there is a long established custom by which public officers collect and appropriate to their own use interest received on public funds, with the knowledge and acquiescence of every one.
    11. Statutes, § 194

      —when existence of custom inconsistent with statute disregarded. If the meaning of a statute is clear and unambiguous, a practical construction by long established custom which is inconsistent with such meaning will have no weight and will not be followed.
    12. Counties, § 44

      —what constitutes a perquisite within Fees and Salaries Act. Interest received by a county treasurer on deposits of public money is a “perquisite” within the meaning of section 52 of the Fees and Salaries Act (J. & A. ¶ 5654), requiring that all fees, perquisites and emoluments received by public officers of certain classes in excess of the amounts allowed to such officers by the county board be paid into the county treasury.
    13. Counties, § 44

      —Fees and Salaries Act not ambiguous. Section 52 of the Fees and Salaries Act (J. & A. ¶ 5654), requiring that all fees, perquisites and emoluments received by county officers of certain classes in excess of the amounts allowed to such officers by the county board be paid into the country treasury, held not ambiguous so as to require or admit the aid of contemporaneous construction by which county treasurers are allowed to retain for their own use interest received by them from deposits of money in their hands in their official capacity.
    14. Officers, § 62

      —when officer retaining public funds not guilty of bad faith. The long continued and improper practice of public officers in retaining public funds in their hands,. claiming them as their own, leads to the conclusion that one so doing is acting honestly and is not guilty of bad faith in following the custom of his predecessors.
    15. Estoppel, § 93

      —when estoppel inapplicable to State. Since the State cannot be estopped by laches from claiming its own, the actual ownership of money required by statute to be paid into the public treasury cannot be permitted to be controlled by the consideration that there exists a long continued and improper practice of officers in retaining such funds in their hands, claiming such funds as their own.
    16. Counties, § 49

      —what is nature of liability of county treasurer failing to pay into county treasury interest received on public funds. Although interest received by a county treasurer on public funds in his hands in his official capacity be so received from various funds other than the county tax, yet, it being his duty to pay such interest into the county treasury, he is a wrongdoer if he fails so to pay such interest, and stands in the same legal attitude as though he took and appropriated to his own use any other money from the treasury.
    17. Counties, § 49

      —when fact that money abstracted by county treasurer is taxes belonging to another municipality no defense. A county treasurer cannot defend an action brought by the county for wrongfully abstracting money from the county treasury on the ground that the particular money abstracted was received from taxes levied by another municipality and was ultimately to be paid to such municipality.
    Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed November 18, 1915.
    A. F. Beaubien and Frank L. Shepard, for appellant.
    R. J. Dady and E. M. Runyard, 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.

      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 Carnes

delivered the opinion of the court.

Carl P. Westerfield was, from December 5, 1910, to the beginning of this suit, county treasurer and ex officio county collector of the county of Lake, and received and collected from certain banks $7,343.90 as interest or compensation for the deposit with or use by such banks of public funds and moneys that had from time to time come into his hands as such officer, and converted such money so received to his own use, claiming it as his own. This action of assumpsit was brought against him as an individual by the appellee, County of Lake, to recover that money, and on a trial before the court without a jury, it being admitted that he had so received that sum, judgment was rendered against him for that amount, from which judgment this appeal is prosecuted.

It was also admitted on the trial that appellant was not entitled to the money on account of salary, clerk hire or other necessary expenses; that the county had demanded the money of him, and he had refused to account for it and turn it over on the ground that it was not an earning of his office, but his own private property. The questions presented and argued here are whether a county treasurer is required to account moneys coming to his. hands, and if he is liable to account for such interest, whether to the county or to the various taxing municipalities from which he derived the fund on which such interest was received. It is not questioned that this suit is properly brought against him as an individual if he is liable to account to the county for the amount claimed.

One inquiry is whether public officers in the absence of á controlling statute are entitled to interest collected on public funds in their hands. Counsel for appellant say there is a conflict of authority, and cite: “Shelton v. State, 53 Ind. 331, 21 Am. Rep. 197; State v. Walsen, 17 Colo. 170, 28 Pac. 1119, 15 L. R. A. 456; Renfroe v. Colquitt, 74 Ga. 618; Commonwealth v. Godshaw, 92 Ky. 435,17 S. W. 737; Maloy v. County Commissioners, 10 N. M. 638, 62 Pac. 1106, 52 L. R. A. 126,” holding that the officer is not liable to account for such interest. But they correctly say that these decisions rest mainly on the consideration that an absolute liability is imposed upon the officer for the payment of the principal sum; that it is not a case of bailment and he does not assume the liability of a trustee or agent that is merely the bailee or custodian of the money in his hands. In Shelton v. State, supra, it is expressly held that “The money which he receives becomes his own money.” Counsel cite Thompson v. Board of Trustees, 30 Ill. 99; Town of Cicero v. Hall, 240 Ill. 160; and Town of Cicero v. Grisko, 240 Ill. 220, in support of their contention that the public officer is, in this State, not regarded as a bailee or trustee of the fund, and therefore they say the conclusion of the courts of other States, based on that consideration, should be here adopted. It is true that in this State the county treasurer is, in a sense, an absolute insurer of the fund coming to his hands, and cannot excuse a failure to pay it over on grounds that would be available to a trustee of a fund.

But under our statutes the fund should not be regarded as the private property of the officer. It is provided in section 4 of chapter 36 of the Illinois Statutes (J. & A. ¶ 2908), that the county treasurer shall receive and safely heep all revenues and other public moneys of the county, and all moneys and funds authorized by law to be paid to him, and disburse the same .pursuant to law, and section 81 of our Criminal Code (J. & A. ¶ 3625), makes it a penal offense for a county treasurer to loan for his own use, with interest, any portion of the money intrusted to him for safekeeping, disbursement, transfer or other purpose. These two statutes forbid the conclusion that the fund is the private property of the officer. We are not aware that any such doctrine has ever been held in this State. That the title to public funds is not in their keepers was assumed as a matter of course in Dreyer v. People, 176 Ill. 590. It is true that in State v. Walsen, supra, the Supreme Court of Colorado placed its denial of liability of the officer for interest received in part on other grounds; but the reasoning of that case is not in harmony with our decisions, and that much of it is not in accordance with the general current of authorities is pointed out in State v. McFetridge, 84 Wis. 473 (20 L. R. A. 223), a case in which the authorities are very thoroughly reviewed, and in which Hughes v. People, 82 Ill. 78; Cooper v. People, 85 Ill. 417; and City of Chicago v. Cage, 95 Ill. 593, are relied on, among other'cases, in support of the doctrine that the interest on deposits of public funds is an increment to the funds of the State deposited by the officer in banks in his official capacity, and therefore the right to such interest is vested in the State, and on receipt thereof by the officer it becomes money in his hands belonging to his office.

But apart from the consideration whether interest so received is an increment of the fund, we have controlling constitutional and statutory provisions as to its disposition. Section 10 of article X of our Constir tution provides that the county board shall fix the compensation of all county officers with the amount of their necessary clerk hire, stationery, fuel and other expenses, and in all cases where fees are provided for, said compensation shall be paid only out of the fees actually collected, and that all fees or allowances by them received in excess of their said compensation shall be paid into the county treasury. It is provided in section 52 of our Fees and Salaries Act (chapter 53, Revised Statutes, J. & A. ¶ 5654) that all fees, perquisites and emoluments received by said county officers in counties of the first and second class (above the amount of their compensation fixed by the county boards and for clerk hire and other necessary expenses) shall be paid into the county treasury. If this item of interest received by appellant was a perquisite or emolument of his office, as county treasurer, it should have been paid into the county treasury. In Hughes v. People, supra, the question arose whether interest received on deposits made by the county collector of county funds belonged to him or the county, and it seems to have been considered beyond question that interest so received was a perquisite or emolument of his office, and “Being a perquisite or emolument acquired by official position should be accounted for to the county.” The court in People v. Foster, 133 Ill. 496, on page 519, in discussing the term “perquisites,” said that the Legislature in using that term along with the words “fees and emoluments” used language so comprehensive as to include every payment to an officer which comes to him as such officer.

There is a line of authorities referred to in State v. McFetridge, supra, holding that sureties on an official bond are not liable for interest on public moneys where the officer violated a criminal statute in receiving such interest. It was held in Estate of Ramsay v. Whitbeck, 183 Ill. 550, that sureties were not entitled to indemnity from their principal because they were involved in a contract with him to perform an illegal and criminal act, on the long established principle that the law will not compel contribution among wrongdoers, and will not aid in the enforcement of an illegal contract. But we see no application of those decisions to this case. This is a suit against the individual, charged with the illegal act by a plaintiff, that is entirely innocent. The late case of People v. Witzeman, 268 Ill. 508, is instructive in construing the statute requiring fees, perquisites and emoluments received by a public officer, above his salary, to be paid into the county treasury, and its reasoning in holding that fees in naturalization cases, under the Federal Act of 1906, retained by the clerks of the Circuit Court, are fees of the office and must be accounted for and paid over to the county, indicates that full force and effect should be given to that statutory requirement.

It is argued that a long established custom of public officers to collect and appropriate to their own use interest received on public funds, with the knowledge and acquiescence of everybody, amounts to a practical construction of these constitutional and statutory provisions, and our attention is called to the fact that in Dreyer v. People, supra, such custom was said to be a matter of common knowledge. The same consideration was urged on the court in Whittemore v. People, 227 Ill. 453, and the authorities on contemporaneous construction are there reviewed. The substance of the authorities expressed in varying language is, if the meaning of a statute is clear and unambiguous, a practical construction inconsistent with that meaning will have no weight and will not be followed. If, in the instant case, the interest received by appellant was a perquisite of his office, and it is decided that it is, there is nothing in this statute to construe more than if it had, in express terms, required that interest received by county treasurers on public funds deposited by them should be paid into the county treasury. We do not think there is any ambiguity about the statute requiring or admitting the aid of contemporaneous construction.

Our attention is called to the Statute of 1893, repealed in 1897, providing that treasurers and other custodians of public funds deposited in banks shall account for interest thereon at a rate of not less than two per cent, per annum, and that three-fourths of such interest shall belong to the public and be added to the fund, and the remaining one-fourth shall remain to such officer or custodian. Also to our present Cities, Villages and Towns Act (Hurd’s Statutes ¶ 732, J. & A. ¶ 2061), providing that the treasurer of the sanitary district shall, when the moneys of the district are deposited with a bank, require the bank to pay the same rate of interest that it is accustomed to pay to depositors under like circumstances in the usual course, of its business, and that the interest so paid shall be placed in the general funds of the district, and it is argued from these provisions that the Legislature has recognized and does recognize the right of the public officer to retain interest received on public funds in the absence of such statutory provisions. We do not think this consideration controlling. The existing sanitary district statute has some force in requiring the officer to collect interest on public funds, which, in the absence of the statute, he would be under no obligation to do. But we do not see that the fact that the Legislature undertook in this way to increase the funds of the sanitary district should be construed as authorizing or acquiescing in a misappropriation of public funds in the absence of such a statute.' The consideration of the long-continued, improper practice of officers in retaining public funds in their hands, claiming them as their own, leads to the conclusion that one so doing is acting honestly and is guilty of no bad faith in following the custom of his predecessors. But to permit such consideration to control the actual ownership of the money would be to estop the State on the doctrine of laches from claiming its own, which is not permissible.

It is insisted if the interest collected by appellant does not belong to him, it is an accretion of the various funds in his hands, and the county would have no right to recover a greater amount than the interest on the fund derived from the county tax. We see no force in this contention. If this interest belonged in the county treasury and it was the duty of appellant to place it there, he was, in legal contemplation, a wrongdoer, and while under the circumstances moral turpitude is not imputed, still he stands in the same legal attitude that he would if he hád taken any other money out of the county treasury and appropriated it to his own use. It would be absurd to say that a county treasurer could defend a suit brought by the county for wrongfully abstracting money from the county treasury on the ground that the particular money, so abstracted, was received from taxes levied by some other municipality and was ultimately to be paid by him to such other municipality. We are of the opinion that under the admitted facts the judgment is right, and therefore it is affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Dibell

text:
    The People of the State of Illinois, Defendant in Error, v. August Sehrer, Plaintiff in Error.
    Gen. No. 6,155.
    1. Witnesses, § 267

      —when credibility of detective for jury. The testimony of a detective is to be treated like the testimony of any other witness, and his interest, if any, in securing compensation from and success for the side employing him is deemed the same as that of any other witness, and the jury are the judges of the credibility of such testimony.
    2. Witnesses, § 314

      —when credibility of accused for jury. A defendant in a criminal case is an interested witness when testifying in his own behalf, and the credibility of his testimony is a matter to be determined by the jury.
    3. Witnesses, § 261

      —what may be effect of demeanor of witnesses upon jury. As between interested witnesses in a criminal case whose testimony is conflicting, the demeanor of the witnesses may have led the jury to place confidence in the truth of the testimony of those on one side of the case and to discredit those on the other.
    4. Intoxicating liquors, § 130

      —when presumed saloon keeper tempted to violate law. A person who keeps a barroom open on Sunday to sell soft drinks would obviously be tempted to sell intoxicating liquor, if opportunity offered.
    5. Intoxicating liquors, § 148

      —when evidence sufficient to sustain conviction. In a prosecution in which defendant was charged with keeping open a tippling house on Sunday, where the jury believed the testimony of certain detectives who testified that defendant sold them lager beer, and discredited defendant’s evidence that the liquor sold was “near beer,” evidence held to justify a judgment of conviction.
    Error to the County Court of Lake county; the Hon. Perrt L. Persons, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed December 8, 1915.
    George W. Field, for plaintiff in error.
    R. J. Dady and E. M. Runyard, for defendant in error.

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

August Sehrer was found guilty in the County Court of Lake county under two counts of an information which charged him with keeping open a tippling house on Sunday, and was fined one hundred and fifty dollars under each of said counts and brings the record here for review. It is not argued that the court committed any error, except in refusing to grant a new trial. The sole contention is that the evidence is not sufficient to support the verdict.

At the time in question Sehrer kept a dramshop in the Village of Fox Lake in Lake county, and was running a summer resort in connection therewith. His bar was kept open on Sunday for the sale of temperance drinks, near beer and cigars, at least. A detective testified that he went into Sehrer’s barroom on Sunday, August 30, 1914, and called for drinks; that Sehrer required him to sign a paper, dated a day ahead, which he did, and Sehrer then served him lager beer for which he paid. Two detectives testified that on the following Sunday, September 6th, they bought and paid a man behind the bar for lager beer, which was served them, and that defendant was present. They testified that on the following Sunday, September 13th, they were in the same place and ordered a drink of defendant and he refused to sell to them and that another man in the barroom said, in the presence of defendant, that he had bought up some liquor to be delivered on Sunday and that they could have some of his, and that the liquor was served and that no money was then exchanged; that a few minutes later, they had another bottle of lager beer, for which the stranger paid the defendant over the bar. Defendant denied selling lager beer to these witnesses on any of said Sundays, but admitted that they were in his place of business and he sold them “near beer.”

It is contended that the witnesses for the People should not be believed because they were detectives, and reliance is had upon language in the opinion in Blake v. Blake, 70 Ill. 618. That language had the sanction of only three of the seven judges. Three judges dissented entirely, and expressly dissented from the language concerning detectives. Another judge concurred in the conclusion only.in that case, which was affirming a decree against complainant in a suit for divorce. This court disapproved an instruction intended to discredit detectives in People v. Gardt, 175 Ill. App. 80, and this was approved and affirmed in 258 Ill. 468. The true rule we conceive to be that the testimony of a detective is to be treated like the testimony of any other witness, and his interest, if any, in securing compensation from and success for the side which employs him is to be considered the same as the interest of any other witness, and the jury are the judges whether he shall be believed. The defendant also was interested, and the credit to be given his testimony was a matter to be determined by the jury. The jury believed the detectives and disbelieved the defendant. The trial judge approved that conclusion. There may have been that in the demeanor of the detectives on the stand which gave the jury confidence in the truth of their testimony. Obviously defendant, who was keeping his barroom open on Sunday with his usual-servants to sell soft drinks, would be subject to a temptation to sell intoxicating liquor, if the opportunity offered. The jury and the trial judge may have seen that in the demeanor of the defendant on the stand which led them to believe that he had yielded to that temptation. It is impossible that we should say that the jury should have believed the defendant and should have disbelieved the People’s witnesses. The evidence for the People, if believed, justified a conviction. People v. McCann, 247 Ill. 130; People v. Conners, 246 Ill. 9; People v. Horchler, 231 Ill. 566. The judgment is therefore affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Peter Clayton, Plaintiff in Error.
    Gen. No. 6,156.
    (Not to he reported in full.)
    Error to the County Court of Lake county; the Hon. Perry L. Persons, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed December 8, 1915.
    Statement of the Case.
    Prosecution by the People of the State of Illinois against Peter Clayton, defendant, in the County Court of Lake county, charging defendant with keeping open a tippling house on Sunday.
    This case presents similar facts to those in People v. Sehrer, Gen. No. 6,155, ante, p. 442, and the same error is assigned in this case as in that. The decision in this case is governed by the opinion filed in that case.
    A. L. Tompkins and George W. Field, for plaintiff in error.
    R. J. Dady and E. M. Runyard, for defendant in error.
   Mr. Presiding Justice Dibell

delivered the opini of the court.


text:
    Gustave J. Carus, Trustee, et al., Appellees, v. F. W. Matthiessen, Jr., et al., Appellants.
    Gen. No. 6,139.
    1. Corporations, § 153

      —when assignment of certificate of stock by trustee valid. Where stock stands on the books of a corporation in the individual name of one who actually holds it as trustee, a transfer of the certificate by such trustee both individually and as such trustee is valid and legal.
    2. Mandamus, § 98

      —when lies to compel corporation to transfer stoclc. Mandamus is a proper remedy to compel a corporation to transfer stock on its books although there may be other proper remedies.
    3. Mandamus, § 3

      —when existence of other remedy not ground for denial of writ. The reason given in other jurisdictions for denying the writ of mandamus to compel a corporation to transfer stock on its books, that the right to such transfer is a purely private right, for which an adequate remedy exists by an action at law for damages or by bill in equity to compel the transfer, is removed by section 9 of the Mandamus Act (J. & A. ¶ 7338), providing that such writ shall not be denied where the writ will afford a proper and sufficient remedy because plaintiff may have another specific legal remedy.
    Appeal from the Circuit Court of La Salle county; the Hon. Edqar Eldredge, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed December 8, 1915.
    William J. Calhoun and M. F. Gallagher, for appellants.
    Montgomery, Hart, Smith & Steere, for appellees; Charles S. Cutting, Louis E. Hart and Norman H. Pritchard, of counsel.

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

Mary Hegeler Carus, as an individual, assigned certificate No. 42 of stock in the Matthiessen & Hegeler Zinc Company to her son, Gustave K. Carus, as an individual, which was presented to F. W. Matthiessen, Jr., and George P. Blow, acting secretary and president of said company, with the request that it he transferred on the hooks of the company and a new certificate issued. The certificate stood on the hooks of the company in Mrs. Carus’ individual name, hut she held it, with other stock in the company, under trusts created hy her father’s will and a family settlement made after Ms death. The request for transfer was refused on the ground that she could not, as such trustee, make a valid conveyance of the certificate. The assignee, Gustave K. Carus, filed in the Circuit Court of LaSalle county a petition for mandamus to compel a transfer, which, on a hearing before the court without a jury, was denied on the ground that Mrs. Carus owned the certificate as trustee, and could not under the limitations of the trust make an unconditional conveyance. The petitioner appealed from this judgment and that appeal is now pending in this court (Gen. No. 6,127, post, p. 449). Mrs. Carus, apparently to meet the suggestion of the court, indorsed another assignment on the same certificate in which she both as an individual and as trustee assigned the stock to Gustave K. Carus as trustee, and the certificate, so indorsed, was again presented to the same parties (appellants in tMs case) with a request for transfer on the books of the company, which was again refused because appellants were advised and believed that under the trusts mentioned Mrs. Carus could not make a valid transfer of the certificate. This suit was then begun on the question of both Gustave K. Carus and Mary Hegeler Carus in the same court, and on á trial before the same judge without a jury the prayer of the petition was granted and a peremptory writ ordered, from which judgment this appeal is prosecuted and reversal sought on the grounds that mandamus is not a proper remedy, and, if it is, that under the trusts in question Mrs. Carus could not make a valid, legal transfer of the certificate. The case was tried on stipulated facts, and there are no other questions in dispute.

It is a part of a controversy between the Matthiessen and Hegeler families concerning the control of said corporation, which has been before us in the four suits of People ex rel. v. Matthiessen, 193 Ill. App. 328; People ex rel. v. Lihme, 193 Ill. App. 341; People ex rel. v. Lihme, 193 Ill. App. 357; and People ex rel. v. Diesterweg, 193 Ill. App. 360.

Those cases were argued together and opinions written in each case referring to the opinions in the other three cases. There has been no dispute about the facts but much dispute as to the conclusions to be drawn from them. They are set forth and discussed in detail in our former opinions, and in the opinions of the Supreme Court reported in 269 Ill. pp. 351, 499 and 602, affirming the judgments of this court. Practically the same counsel have been engaged in all these cases, and this opinion is written assuming familiarity with facts and conclusions of law stated in those opinions. The four cases decided by us were pending on appeal in the Supreme Court when the present case was argued here, and counsels’ briefs are largely devoted to the discussion of questions that aré now settled by the opinions of the Supreme Court since rendered.

Propositions of law were submitted to the court by the parties in the present case, requiring a holding on the question whether a proper construction of the trust permitted the transfer of the certificate, and were marked by the court held or refused in accordance with the views that we had expressed in our former opinions, the court noting on his holdings that the propositions were so held and refused because of our opinions filed in those cases. Other propositions of law were presented by appellant to the effect that mandamus is not a proper remedy to compel the transfer of a certificate of stock, but that the proper remedy is an action of damages, or bill in equity. The court marked these propositions refused.

The decisions of the Supreme Court and opinions filed therein dispose of all questions arising here as to the power of Mrs. Carus, as trustee, to make the transfer in question. The court did not err in holding that the transfer was valid and legal.

We are also of the opinion that there is little, if any, question in this State that mandamus is a proper remedy, though it may well be that there are other proper remedies. Section 9 of our Mandamus Act (J. & A. ¶ 7338) provides that the writ shall not be denied because the petitioner may have another specific legal remedy where such writ will afford a proper and sufficient remedy. In the absence of such a statute there is a conflict of authority in other States, the writ being denied in some jurisdictions on the ground that the right is a purely private one, and there is generally an adequate remedy by an action against the corporation for damages or by a suit in equity to secure a decree ordering the transfer. (26 Cyc. 347.) That reason for denying the writ is removed by the statute. Brokaw v. Com’rs of Highways, 130 Ill. 482; People v. Wells, 255 Ill. 450. The right to the writ is recognized in People ex rel. v. Sterling Mfg. Co., 82 Ill. 457; People ex rel. v. Manf. Co., 99 Ill. 355, and held in Smith v. Automatic Photographic Co., 118 Ill. App. 649. Therefore the judgment of the trial court should be affirmed.

Affirmed.


text:
    Gustave K. Carus, Appellant, v. Matthiessen & Hegeler Zinz Company et al., Appellees.
    Gen. No. 6,127.
    1. Mandamus, § 98

      —when moot question presented. In a petition for mandamus to compel the transfer of stock by a corporation on its books, brought by one holding a certificate of the stock of such corporation by the individual assignment of one who actually held such stock as trustee, although it stood on the books of the corporation in the individual name of such trustee, where it appeared that as a result of the suggestion of the court such trustee wrote on the certificate sought to be transferred a new assignment, both as an individual and as trustee, to petitioner, on which petitioner sought and obtained a writ of mandamus to compel such transfer, an appeal from the judgment denying the writ in the first case on the ground that such transferror could not make a valid conveyance of the stock as an individual, held to present a moot question.
    2. Corporations, § 153

      —what constitutes an assignment of stoclc by a trustee. One who appears on the books of a corporation as owning stock in her own name, but who in fact owns such stock as trustee and who first attempts to transfer such stock individually, and afterwards writes on the certificate an assignment both as an individual and as trustee, in fact transfers the stock as trustee, whatever be the form of the transaction.
    3. Mandamus, § 98

      —when no power to require two transfers of same stock. A court cannot order two peremptory writs requiring two transfers of the same stock and two certificates thereof to be issued to. the transferee.
    4. Mandamus, § 187

      —when validity of assignment of corporate stock not considered. Where a transferee of a certificate of stock under one form of assignment seeks mandamus to compel the corporation issuing the stock to transfer the same on its books, and on the writ being denied, on the ground that the assignment to him is invalid, obtains another assignment, on which he seeks and obtains the writ to compel the transfer, the Appellate Court will not inquire on appeal from the denial of the writ in the first case, whether the first form of assignment was valid.
    5. Mandamus, § 6

      —when necessary matter involved be substantial to justify use of remedy. The matter involved in a mandamus proceeding must be substantial and of sufficient importance to justify the use of the remedy, and moot questions will not be determined thereby.
    6. Mandamus, § 6

      —what is nature of rights necessary for granting of writ. Unless the matter involved in a petition for mandamus be of public interest, the writ will be denied where the right sought to be enforced thereby is or will become a mere abstract right, the enforcement of which by change of circumstances can be of no practical benefit to petitioner.
    Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed December 8, 1915.
    Montgomery, Hart, Smith & Steere, for appellant; Charles S. Cutting, George T. Buckingham, Louis E. Hart and Norman H. Pritchard, of counsel.

      William J. Calhoun and M. F. Gallagher, 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 Carnes

delivered the opinion of the court.

This mandamus proceeding is referred to in our opinion in Gen. No. 6,139, ante, p. 445, filed herewith. The substantial relief sought by the petition in this case has been obtained by the judgment of the court in that case. We are inclined to hold that the petitioner in this case, having obtained the transfer of the stock by an order entered in the other case, is presenting to us merely a question of abstract right. It will be seen by reference to our opinion in the other case that whatever the form of transfer of the certificate in question, it is, in fact, a transfer by a trustee to a trustee. We cannot order a peremptory writ in each case thereby requiring two transfers, on the books and two certificates to issue on the same share of stock, and practically the same transaction. Counsel for appellant suggest this difficulty, and counsel for appellees answer the suggestion by saying that the transfer is only ordered on the presentation of the certificate indorsed, and therefore the supposed difficulty does not exist. Neither counsel have much discussed this question. Having determined that an assignment in the form presented in Gen. No. 6,139 must be recognized by the corporation, and affirmed the judgment so holding, we are not inclined to investigate the question whether the form of assignment adopted in this case is also sufficient. We know of no controlling authority governing the disposition of this case by us under the circumstances, but it is elementary law that the matter involved in a mandamus proceeding must be substantial and of sufficient importance to justify the use of the remedy; that abstract or moot questions will not be determined, and where the right is, or will become, a mere abstract right, the enforcement of which by reason of some change of circumstances can he of no substantial or practical benefit to the petitioner, mandamus will be denied, if it is not a matter of public interest. (26 Cyc. 156.) The judgment is affirmed.

Affirmed.