text:
    City of Rock Island et al. v. August Huesing.

      Municipal Corporations—Police Powers—Abattoir or Public Slaughtering House—Illegal Tax—Injunction—Parties—Estoppel.

    1. The City of Rock Island has the power, under the general act for the incorporation of cities and villages, to establish and maintain an abattoir or public slaughtering house for the purpose of securing proper inspection of fresh meats furnished to the inhabitants of the city.
    2. An injunction will lie to enjoin a tax which has been imposed without authority.
    3. A bill for an injunction to enjoin the levy and collection of a,n unauthorized tax or an illegal appropriation of its funds by a municipal corporation, may be maintained by any taxpayer, however small the amount he is required to pay and whatever may be his private motives.
    4. The payment of one illegal tax can not be invoked as an estoppel against a taxpayer who seeks to enjoin another levied on the same or similar account.

      [Opinion filed January 7, 1888.]
    Appeal from the Circuit Court of Rock Island; the Hon. John J. Glenn, Judge, presiding.
    This was a hill in equity brought by the appellee, a resident and taxpayer of the City of Rock Island, praying to have it enjoined from maintaining, managing and controlling an abattoir, or public slaughtering house, within the city limits, and from passing any ordinance or making any contract for such purpose, and from appropriating or expending any of the money of the said city for such purpose, or for hire, wages or salary of a deputy health commissioner, or other person, for superintending or managing said abattoir; or from making any allowance or appropriation'of money for any cost or expenses of said abattoir, or for the purpose of payment for fixtures, appliances or things put into, or to be put into or furnished about said abattoir, by John Talk or any other person; and also praying that the Mayor of the city and Clerk may be enjoined and restrained from embracing or including in any certificate of said city, or any of its officers or authorities, to the County Clerk of said Rock Island County, of the amount which said city may require to be raised by taxation, the sum of §3,000, appropriated by said City Council of said city in and for the year 1886, for abattoir purposes; or the sum of §600 appropriated by the said City Council in and for the said year for hire, wages or salary of a’deputy health commissioner in charge and management of said abattoir, or for any costs and' expenses of managing the same, and from signing or issuing any orders for the payment of any appropriation of any money for any costs or expenses of the abattoir, or of maintaining or managing the same, etc.
    A temporary injunction was granted, and upon a final hearing upon answer and evidence the injunction was made perpetual and costs awarded against the said city, from which order and decree this appeal is taken.
    It appears from the bill, answer and evidence introduced, that the appellant became duly organized under the general Jaws of the State of Illinois, entitled “ An act to provide for the incorporation of Ccities and villages,” approved April 10, 1872, and the various amendments thereto, on the 4th day of November, 1879, the city having changed from its organization under its special charter of February 16, 1857, to its organization under the general law.
    The city is situate oh the southern and eastern banks of the Mississippi River, which form its northern and western boundaries, the city being about 31 miles east and west, and 1£ north and south, exclusive of Rock Island, and containing about 12,000 inhabitants.
    It appears that on the 3d day of July, 1885, one Bailey Davenport donated to said appellant two acres of land on the bank of the river on the south line of the city for an abattoir, with all riparian rights belonging to the land.
    The City Council in the same year constructed a brick building, with stone basement, about 40x80 feet in size, on said ground, with cattle and hog bins attached, and other fixtures necessary for a slaughter house, and in readiness for the necessary appliances for slaughtering animals, which said building was paid for by the city, costing about $3,000. John Val It proposed to the city to furnish the necessary appliances for butchering for $2,585, and give the city the use of the fixtures and appliances free to July, 1886, and that the city might purchase the same at that sum, and in case the city did not purchase he was to remove the same. The city accepted the proposition, and entered on the use of the abattoir, and gave out that it would purchase the said appliances.. The City Council, in May, 1886, passed a general appropriation ordinance, including $3,000 for abattoir purposes, and $600 for deputy health commissioner, for his salary for superintending the carrying on of this business of inspection and butchering.
    The bill showed that the City Council was about to pass an amendatory ordinance (May, 1886,) requiring that all the cattle whose flesh was intended for sale in said city should be butchered at the abattoir'.
    It appears from the bill and is admitted by the answer that the city had. on the 7th of December, 1885, passed an ordinance, in force when the bill was filed, entitled “ An ordinance to establish a city abattoir, and providing for the managing and use thereof.” It declares, in Sec. 2, that “ said abattoir is established and shall be maintained for the use and purpose of regulating the business of furnishing fresh meats to the inhabitants of said city and reasonably to secure to them good, fresh, wholesome meats.”
    Sec. 3 gives the health commissioner the custody and management of the same; requires him to keep it clean, etc., and requires him to see £t that the rights and privileges of all persons entitled to use the same are allowed and given without distinction,” and is authorized to employ deputies, whose compensation shall be fixed by the City Council.”
    Sec. 4 provides that “ every person licensed under the ordinances of the city to sell fresh meats shall be entitled to use said abattoir upon compliance with the provisions, rules and regulations governing the use thereof.”
    Sec. 5 provides for the suspension of licensed persons from the use of the abattoir in case of violation of its rules, etc.
    Sec. 6 provides for the times of keeping the same open for use, for inspection and slaughter of animals.
    Sec. 7 provides that “ Every person licensed under the ordinances of this city to sell fresh meats, of cattle, hogs, sheep, calves or lambs, shall, before offering such meats for sale, have the same inspected and approved by the commissioner of health or his deputy, at the city abattoir or any licensed packing-house or other place in said city licensed for the slaughter of animals, and it shall be the duty' of said commissioner of health, in person or by deputy, to inspect meats at said places other than said abattoir, at all reasonable hours, and to as fully as possible meet the convenience of persons asking such inspection.”
    See. 8 fixes the price to be paid to the city for slaughtering each head of cattle at 25 cents, each head of sheep, etc., 10 cents, each head of hogs, etc., 15 cents, and calves at 10 cents.
    Sec. 9 provides that all cattle, sheep, hogs and calves before slaughter shall be inspected at the abattoir, or any licensed packing-house or other place in the city licensed for the slaughter of animals, and also the flesh of such animals, after slaughter, shall be inspected by the health commissioner or deputy at the same places.
    Other sections make it unlawful to sell such meats in the city without the inspection provided for, and fix a penalty for its violation at not less than §5 nor more than §200, and provides for revocation of the butcher’s license.
    The answer sets up that the abattoir erected and the ordinance passed was for the purpose of protecting, the people in .their health, by procuring and furnishing them with clean and wholesome meats, and also to do away with the slaughterhouse nuisance, as it is c’aimed that it existed prior to the time of the passage of the ordinance and the building of the abattoir. Shows the special conditions existing prior to the building of the abattoir; that the slaughtering of animals for furnishing meats to the said city was done in five or six slaughterhouses located near the southwestern portion of the city, within one-half or three-quarters of a mile of the body of its population, which were the private property and under- the control of individual butchers, and that the location of said slaughterhouses was within one-lralf mile of the abattoir; that the only proper location for the slaughter houses was and is upon the banks of the Mississippi River at or near where the abattoir is located; that the slaughter houses were so located that the prevailing winds for a large portion of the year blew the stench and noxious gases from the same over the city, endangering the health and comfort of the inhabitants; that no sufficient drain•age to carry off the sewage matter therefrom could he constructed and maintained; that the houses were kept and run in a filthy and unwholesome manner, etc., and that many complaints were made, etc.; that hogs were kept and fed on putrid offal, etc., the details of which are set out, showing a disgusting and revolting state of affairs; that unwholesome animals had been slaughtered and sold to the people for food; all of which is backed up by the resolutions of nine leading physicians of the city, and the report of the Board of Health, recommending the building of a slaughter house or abattoir; that the city had attempted to regulate the evil by ordinance, by licensing the slaughter houses and regulating them, but the effort had proved a failure on account of want of drainage and water supply, etc. It appears that about the time of the passage of the ordinance in question the butchers, about fifteen in number, removed the slaughtering more than one mile outside the city limits, and all slaughtered at a place known as Dingle-dines, and that only one licensed establishment remained inside the city limits, known as Gilmore’s. It is set np in the answer that the butchers, as soon as they ascertained that the city had entered upon the construction of the slaughter house, removed to Dinglcdines, outside the jurisdiction of the city, to avoid inspection and regulation of the business by the city; that the officers of the city have no power over the new slaughter house; avers that Dingledines slaughter house was in a filthy and unwholesome condition, making the same complaints against it as were made against the old slaughter houses.
    Messrs. William McEniry, City Attorney, W, H. Gest E. D. Sweeney and M. M. Sturgeon, for appellants.
    Messrs. Ira O. Wilkinson, Chas. Dunham and William Jackson, for appellee.
    A taxpayer, although injured only in common with all others, may maintain a bill to enjoin the appropriation of money by a municipal corporation for an unlawful purpose, and this, too, without reference to the amount of taxes paid by him. Springfield v. Edwards, 84 Ill. 625; Wright v„ Bishop, 88 Ill. 302; Beauchamp v. Board of Supervisors, 45 Ill. 274; Perry v. Kinnear, 42 Ill. 123; Hesing v. Scott, 107 Ill. 600; Colton v. Hanchett, 13 Ill. 615; Smith v. Bangs, 15 Ill. 399; Carter v. Chicago, 57 Ill. 283; Sherlock v. Village of Winnetka, 59 Ill. 389; Chesnutwood v. Hood, 68 Ill. 132. In this country all corporations, whether public or private, derive their power from legislative grant, and they can do no act for which authority is not expressly given by law, or may not be reasonably inferred, as necessary to give effect to the powers expressly granted. The doctrine of the courts has uniformly been to confíne municipal corporations within the limits that a strict construction of the grants of power in their charters assign them ; neither the corporation nor its officers can do any act, or make any contract, or incur any liability not authorized thereby. All acts beyond the scope of the powers granted are void, and in all cases of judicial doubt as to whether a municipality has a given power, the doubt is to be resolved against the corporation. To doubt its power is to deny it. 2 Kent, Com. (12th Ed.), 298-299; Cooley’s Const., 191-196; 1 Dillon on Mun. Corp. (3d Ed.) Sec. 89; Bank of U. S. v. Dandridge, 12 Wheat. 68; Bank of Augusta v. Earle, 13 Pet. 587; Railroad Co. v. Harris, 12 Wall. 81; Thomas v. Railroad Co., 101 U. S. 71; Cook County v. McCrea, 93 Ill. 236; People v. Village of Crotty, 93 Ill. 180; City of Champaign v. Harmon, 98 Ill. 491; Schott v. People, 89 Ill. 195; Ill. Conf. Female Col v. Cooper, 25 Ill. 133. There is no provision in the general incorporation law, under which this city is incorporated, expressly conferring upon the city the power to build or maintain an abattoir. The question involved in this case is of no inconsiderable consequence, for it may concern the inhabitants of almost every city in the State, as well as the City of Bock Island. If Bock Island can tax its inhabitants to build and maintain an abattoir, and the innumerable other buildings it may construct and maintain upon a kindred claim, so may every other city, incorporated under tire general law, in like manner tax its inhabitants. Every privilege and power given to a municipality is a right taken from the people, and hence it is that courts, in cases of doubt, deny the power, and decide in favor of the people. This is not partiality, but a just rule of decision. The people are the source of power, and if it does not affirmatively and clearly appear that they have parted with a given power, it must be held that they have it, and hence the doubt is to be resolved against the municipality.
   Lacey, J.

The appellant raises some preliminary questions as to the right of the appellee, a mere taxpayer, to maintain the suit. It is insisted that the amount of appellee’s tax is so insignificant, it being only 26 cents per annum in addition on account of abattoir expenses, that a court of equity would not notice it; that the appellee is not acting in good faith on his own account, hut is proceeding in the interest of the butchers of the City of Rock Island; that a taxpayer can not enjoin the levy and collection of the proposed tax, levied for the purpose of maintaining the abattoir in the manner proposed by the ordinance; that appellee is estopped because he did not object to the building of the abattoir, and paid taxes for that purpose without objection, and that the State only can question the right of the appellant to hold and use the property. We are inclined to hold all these points against the contention of the" appellant. In the first place, if this case falls within the rule of law that is announced in Lemont v. Talcott Stone Co., 98 Ill. 98, which holds the doctrine that an injunction will lie to enjoin a tax “where it has been imposed where the law has not authorized it. to be levied,” or, as in the case of Wright v. Bishop, 88 Ill. 302, where it was held it would lie to restrain the incurring or issuing evidence of an illegal debt, it would make no difference as to the amount of tax the complainant would he liable to pay in case the tax were levied or the debt incurred and collection enforced.

The first inquiry will be as to the nature of the tax sought to he imposed by the appellant and enjoined by this suit.

Was there any law, according to the allegations and conten tions of the hill, under which the tax or debt, whichever it may he termed, sought to he incurred, could be imposed ? It was asserted and claimed in the bill, and upon that the judgment of the court was asked, that the ordinance under which the debt was about to be created and the tax levied was wholly illegal and void, and without the power of appellant to pass. If this be so, which must be admitted to raise this point, then the city had no legal authority to maintain the abattoir or to incur any indebtedness on its account We are therefore of the opinion this case falls within the rule announced in the two cases above cited. There would he in snch case no law under which to make this levy or create the debt. The contention is, it was without the chartered power of appellant to pass the ordinance, and that the creation of the debt was for purposes not warranted, and that the corporate funds were about to be expended for the same unwarranted purpose. See also Hesing v. Scott, 107 Ill. 600. It is not like the case above, where the vacation of a street was sought to be enjoined. The complainant in that case did not allege that such vacation would impose on him a particle of loss, nor that he has, or will, sustain the slightest injury or inconvenience distinct from the general public.”

We also hold that no matter what the appellee’s private motives were as to aiding the butchers, he had a right to maintain his action if he showed legal grounds without reference .to such motives. Nor do we think an estoppel could be invoked against him, as his claim is that the ordinance is illegal, and there is no legal authority to create further indebtedness.

The payment of one tax created and levied without legal authority could not be invoked as an estoppel against the taxpayer who sought to enjoin another wholly illegal debt sought to be created on the same or similar account. Schaffer v. Bonham, 95 Ill. 368. It is not sought in the apjmllee’s bill to interfere with the right of the city to possess and own the abattoir as a property, but the incurring the expense for the alleged illegal use and maintenance of the same as an abattoir, is only objected to. The appellee’s counsel take the ground that under the charter, under which appellant is organized, it had no legal power to pass the ordinance in question or to maintain the abattoir. On the other hand the appellant insists that such power existed, and that the ordinance in question is valid and binding. Upon the decision of this question hangs this controversy.

The appellant claims the power to pass the ordinance in question under certain general provisions of the statute, there being no express power granted in the incorporation act of 1872 to regulate slaughter houses within or without the city.

The general provisions of the “ General Act for Incorporation of Cities and Villages,” in force July 1, 1872, to which we have been referred, and under which the power is claimed, is as follows: Article 5, Sec. 63. The City Council shall have the following powers:

Clause 53. “ To provide for and regulate the inspection of meats, poultry, fish, butter, cheese, lard, vegetables, cotton, tobacco, flour, meal and other provisions.”
Clause 76. “To appoint a board of health and prescribe its powers and duties.”
Clause 78. “ To do all acts and make all regulations which may be necessary or expedient for the promotion of health or the suppression of disease.”
Clause 96. “To pass all ordinances, rules, and make all regulations proper or necessary to carry into effect the powers granted to cities or villages, with such fines and penalties as the City Council or Board of Trustees shall deem proper: provided no fines or penalties shall exceed 8200, and no imprisonment shall exceed six months for one offense.”

If the appellant derived no power under the above several provisions, or some of them, it is conceded it had no power.

The ordinance in question, with all the incidental regulations and the abattoir appliances, is essentially an ordinance for inspection of certain fresh meats before they can be sold in the city for food, as a health measure. The statute grants the power to inspect, expressly. The only question as regards this exercise of power is: is the passage of the ordinance in question, and the regulations therein provided for, a reasonable exercise of the express power granted ? In order to determine that question we must look to the circumstances of the case as developed by the bill, answer and the evidence. The power to pass the ordinance and establish and maintain the abattoir as a sanitary measure, we will notice hereafter. What were the circumstances? Some time prior to the passage of the ordinance and erection of the abattoir the city wras supplied with fresh meats by about fifteen licensed butchers, all of whom did their slaughtering at some five slaughtering houses located in the city, and those houses were kept in a most filthy condition, occasioned somewhat from the want of drainage, which, on account of their location away from the river, could not be remedied, and somewhat on account of the carelessness of the butchers and beepers of the slaughter houses. Besides this, some of the butchers were unprincipled enough to sell diseased meat, and meat in such condition that no civilized pierson would knowingly eat it. The city was of the opinion, after making the effort, that this evil could not be controlled by the ordinary ordinance with only a penalty attached, and determined, as a part of the remedy, to build the abattoir; but while this was being proceeded with, the butchers removed their place of slaughtering the beeves and other animals outside the city limits and more than one mile therefrom, so that the city had no jurisdiction of the slaughter house and could not inspect the animals before killing; could only inspect the meat after it was brought into the city. The ordinance was passed after the butchers had moved their place of butchering outside the city, or in view of the fact that they were about to so move. It was as important for the city to inspect the animals before they were slaughtered as the meat afterward, and that the ordinance provided for. The city already had the building, which it is not disputed it may hold. All that was wanted was some butchering appliances amounting, in cost, to something like §2,585; the inspector would be required at all events. It appears that the abattoir is well located for butchering purposes, and is right on the banks of the Mississippi River, which gives good drainage.

If the animals were compelled to be brought there for inspection, it would not be unreasonable to suppose that the butchers would be willing to have their work clone there instead of at Dingledines, which was far outside the city limits. The ordinance did not compel any of the butchering to be done at the abattoir, only the inspection there or at some other licensed slaughtering house in the city, of which there was only one in existence ; but we are authorized to suppose that there might have been others if any one had seen proper to establish them. At least no refusal on the part of the city is shown. If this be so, there was no monopoly established by the city, even if the city could establish a monopoly where it did the work itself, which we need not decide. Where a city has power to regulate certain matters of police within its limits, in carrying out the details of that power it must necessarily have a large discretion, and an ordinance should not be declared void for unreasonableness, unless clearly so in the mind of the court. Eagan v. City of Chicago, 5 Ill. App. 70.

The next question arising is under the general health clause of the statute. Had the city the power to pass the ordinance and maintain the abattoir? It seems that the issue was made and the case tried and decided in the court below as though the abattoir had been established and all the butchering was required to be done there, or that the ordinance, under all the circumstances, had such coercive features in that direction that it amounted to that, and the city was enjoined from passing an ordinance requiring the butchering to be done at the abattoir. That the general health clause is broad enough to authorize the city to regulate the slaughter houses in ' the qity to a reasonable extent, seems not to admit of much doubt. That would seem to be the effect of the reasoning of the court in the case of Tugman v. City of Chicago, 78 Ill. 405. Clause 78 above cited, seems to be residuary in character, intended to cover every case for the general preservation of the health of cities not specifically delegated, and is not controlled by the specific grants of power enumerated in the other sections. What the city may do to preserve health must necessarily be within the sound discretion of the City Council, controlled in the end by the courts and liable to be declared void for palpable abuse.

The City Council had been informed through an investigation of its Board of Health, of certain facts found to exist at the slaughter houses, and through it of the opinion of nine leading physicians of the city, that the public health was being endangered by the condition of things existing at the slaughter houses in the city.

The physicians resol ved “ that the meat exposed to air rendered poisonous by the septic emanations from the decomposing offal of slaughtered cattle is highly detrimental to those who eat it; that the meat of hogs fattened on any animal matter, and especially that in a state of decomposition, is unfit for human consumption, and where used will surely breed disease; that the meat from diseased cattle and immature calves is inedible and its exposure for sale a crime against the health of the community.”

It was this state of affairs that the appellant was attempting to remedy. What more natural and efficient remedy could be devised than to build an abattoir where all the slaughtering could be done by the city and where the deputy health commissioners could inspect the animals before slaughter, as well as the meat afterward? It is not denied, but admitted by counsel for the appellee, that the Legislature could, by express grant, give the cities in this State the right to maintain an abattoir like this one, but it is insisted that it has not done so and that such power can not be inferred from clause 78 above cited.

It is claimed that under the rule announced in the case of Chicago v. Rumpff, 45 Ill. 91, the city would not have the power to pass the ordinance in question, nor maintain the abattoir for the reason that the ordinance would create a monopoly. Under the general law the city can “do all acts and make all regulations which may be necessary or expedient for the promotion of health and the suppression of disease.” In the Chicago charter recited in Chicago v. Eumpff, supra, the power was “to direct the location, management, construction of, and- to regulate, license, restrain, abate and prohibit, within the city limits * * * slaughtering establishments * * * and all establishments and places where any nauseous, offensive or unwholesome business may be carried on.” An ordinance was passed under this law, or attempted to be passed, held not good by the court, whereby John Eeed & Company, themselves butchers and vendors of meat in the city, were given the exclusive right to have all the slaughtering done, except what was done at the regular packing houses, on their premises, situate on the south half of a certain block. Eeed was to do all the butchering for all the other butchers that might request it; no other slaughter houses after certain date were to be allowed in the city under a penalty, except that the city might allow two more. As a compensation Eeed & Company were to have the usual offal and no more. The ordinance, as stated in the opinion of the court, did not declare the business of slaughtering animals in the city a nuisance. The court held the ordinance to be only a contract between the city and Eeed & Company.

The court further held that the city was only authorized under the charter to locate, manage and construct, and to regulate, license and restrain, abate or prohibit, within the limits of the city, these establishments; and this must be done by ordinance which in that case was not attempted.

The court also found it illegal to confine the business to one building or to give it to one individual; such a regulation was not contemplated by the act and created á monopoly, and the principle of the -equality of rights of corporator^ was violated. The opinion further states that the city did not proceed on the assumption that the butchering of animals was a nuisance. We think that case is distinguishable from the one at bar in important particulars. In this case the whole object of the ordinance, as is declared in See. Ho. 2, was to secure to the city “good, fresh, wholesome meat.” That is, to preserve the health of the city. This was aimed to be accomplished by securing good inspection of the animals and meats, and by keeping a clean slaughter house so that the meats should not become contaminated by contact with impure gases and filth. The health of the people of the city was the main object.

In the Chicago case, as held by the court, there seemed to he no object in view except that of giving Eeed & Company a monopoly of the business of slaughtering animals. The ordinance or contract was void as an ordinance for want of being properly passed, or even if passed it would have been void as decided by the Supreme Court. But surely the Supreme Court did not intend to decide that, under a statute like our present broad charter to cities, the Common Council can not maintain an abattoir like the one established by appellant, for the purpose of preserving life and health and of preventing unscrupulous butchers from poisoning the people by selling them diseased and unwholesome meat. The supposed great damage done the public welfare by the claimed establishing of a monopoly of the butchering business by the City of Bock Island, is the main point relied upon by counsel to establish the unreasonableness of the ordinance. But it seems to us that such considerations must sink into insignificance when we consider the overwhelming benefits to be derived by the same community in the preservation of its health by a clean and wholesome meat supply. The one only touches the pocket, the other the life and health. The slaughtering of the cattle by the city is only an incident necessary to accomplish the more important object of conserving the common health. Individual rights must yield to the public good. Such an ordinance could be no precedent for the establishment of a dangerous monopoly in the future.

The city only charges for the butchering the necessary expense. Any unreasonable charges might make an ordinance void. But under the present ordinance there is no compulsion. This view of the subject has been taken by other courts eminent in ability, and the doctrine announced agrees with our views. The cases referred to are: The City of Milwaukee v. Gross, 21 Wis. 243; Thelfew Orleans Slaughter House Oases, 16 Wall. 36. Holding also that the Bumpff case, supra, is not in conflict, we feel free to hold that the City of Bock Island has not exceeded its chartered power in passing the ordinance in question and in maintaining the abattoir. Taking this view of the subject, we hold that the court below erred in making the injunction perpetual and decreeing costs against appellant. The decree of the court below is therefore reversed and the cause remanded to that court with instructions to dismiss the bill.

Seversed and rememded with directions.


source: Caselaw Access Project

author: Baker, J.

license: Public Domain

text:
    John Ley v. Lorenz Reitz.

      Chattel Mortgages—Fraud—Intent to Hinder and Delay Creditors— Insecurity Clause—Levy under Execution—Replevin—Instructions.
    1. In an action of replevin brought by the mortgagee to recover personal property held under execution against the mortgagor, it is held: That the evidence sustains the finding that the chattel mortgage was fraudulent and void as to creditors; that the court properly modified an instruction touching the insecurity clause of the mortgage; and that there was no error in the instructions that could have prejudiced the appellant.
    2. A chattel mortgage given and accepted to hinder and delay the creditors of the mortgagor, is void as to such creditors, although it is also given to secure a bona fide indebtedness.
    3. It seems that the seizure under execution of property covered by a chattel mortgage entitles the mortgagee to act under the insecurity clause of the mortgage.
    [Opinion filed January 7, 1888.]
    Appeal from the Circuit Court of Will County; the Hon. Charles Blanchard, Judge, presiding.
    Messrs. Haley & O’Donnell, for appellant.
    Mr. John B. Fithian, for appellee.
   Baker, J.

William Deering brought suit in assumpsit against Lawrence P. Ley to the May term, 1885, of the Will Circuit Court, and at that term said Ley filed his pleas to the declaration. On the 8th day of February, 1886, said Ley executed his promissory note for $1,200, due two years after date, to John Ley, his father, who is appellant in the pending litigation, and secured the note by a chattel mortgage on a number of horses, mules, cows and cattle, and a considerable quantity of agricultural machinery and farming implements. A trial was had in the Deering suit on the 15th day of Februarv, 1886, and a verdict returned by the jury in favor of Deering for §250, and judgment was rendered upon the verdict on the 27th of that month. The execution issued upon the judgment was dated June 12, 1886, and on the 29th day of July following, it was levied by appellee, Lorenz Eeitz, who was Sheriff of the county, upon a portion of the personal property covered by the chattel mortgage. The property levied on was, on the 31st day of said July, replevied by appellant from appellee, and at the January term, 1887, of the Will Circuit Court, there was a jury tidal of the replevin suit, and the verdict found the issues for appellee and that the right of the property in the articles levied upon was in Lawrence P. Ley. The record n )w before us on this appeal is the record in such replevin suit.

We have carefully read and examined the evidence in the case, as preserved in the bill of- exceptions, and we think the jury were authorized to find therefrom that the chattel mortgage was fraudulent and void as to creditors, and made and entered into by both parties to it with intent to delay and hinder Deering in the collection of his debt. The circumstances surrounding the transaction, the contradictory and unsatisfactory statements made by appellant in regard to the property and the whole proceeding, and the subsequent conduct of the parties with reference to the mortgaged property, seem to indicate that the note and chattel mortgage were made for the express purpose of covering up the property and thereby defrauding Deering. We also think there is much in the testimony tending to impeach the consideration of the note and mortgage.

It is urged as error, that the court modified the first and t fourth instruction for appellant and gave the third instruction for appellee.

The substance of the first instruction, as asked by appellant, was, that the chattel mortgage was duly executed and acknowledged and by its terms-authorized the plaintiff to take possession of the property named therein before the note was due, if he felt himself unsafe or insecure. The court changed the instruction, before reading it to the jury, by annexing the additional requirement that plaintiff had “reasonable or prol - able cause” for so feeling. The case of Gaar v. Hurd, 92 Ill. 315, does not show this action of the court was erroneous. In the case cited, it was meTely held that the question whether the mortgagee of chattels had taken possession of the property before he had a right to do so under the terms of his mortgage, was one which, under the circumstances of that ease, concerned the mortgagor alone, and that such question could not be raised by third persons who had no interest in the property at the time the possession was taken. In that case, it clearly appeared that at the time the mortgagee took possession of the property, Gaar, Scott & Company had no interest therein; while here appellee, as Sheriff, had levied the Peering execution upon the mortgaged chattels as the property of Lawrence P. Ley some two days before appellant took any steps to avail himself of the insecurity clause in his mortgage, and he thereby acquired an interest and property right in such chattels. If the validity of the note and mortgage wore fully admitted, yet under the provisions of the latter Lawrence P. Ley and those succeeding to his interest would have an undoubted right, without there was a valid enforcement of the insecurity clause, to the use and benefit of the chattels levied on for a period of more than eighteen months. It can hardly be assumed that the possession and use for a full year and a half of eleven milch cows, six other head of cattle, four horses, two mules, one double wagon, one top buggy, one cutter, one pair of bob sleds, one corn planter, two drags, two plows, two cultivators, one mower, one self-binder and one half interest in a threshing machine and outfit, would have been of no pecuniary value and would not have been such a property right as could have been sold on the execution. This property interest the Sheriff held by virtue of his levy and possession, and he had an undoubted right to protect it against any act of the mortgagee not authorized by the chattel mortgage. The mortgagee, as against either the mortgagor, or one who had succeeded to his interest prior to possession taken under the insecurity clause, only had the right to take possession under such clause in the event he felt himself insecure, and had reasonable and probable ground for so feeling. Boy v. Goings, 96 Ill. 361. These considerations roust have influenced the court to add the qualification it did to the instruction, and there was no error in so doing.

But, even should we assume there was no sufficient reason to justify the modification, still we are unable to see the action of the court could or did work an injury to appellant. The latter held a mortgage on chattels, containing an insecurity clause, and these chattels had been seized and taken into possession by the Sheriff on an execution against the mortgagor, and the Sheriff was about to offer them for sale at public vendue, and they would necessarily be liable to be scattered and removed beyond the reach and control of the mortgagee; and it is wholly improbable, if not impossible, that the jury could have found otherwise than that appellant both felt himself insecure and had reasonable and probable cause for so feeling. We think it evident that the modification of the instruction had no influence whatever in bringing about the verdict of the jury that the right of the property was in Lawrence P. Ley.

The substance of the third instruction for appellee was, that even if the note and mortgage were given for a honafide debt, yet if the jury believed from the evidence that Lawrence P. Ley intended by said mortgage to hinder or delay said Peering in the collection of his claim against him, and that the plaintiff took the mortgage not only to secure his debt but also to hinder and delay the creditors of Lawrence P. Ley, then they should find for the1 defendant; but that it mattered not what motive Lawrence P." Ley had in giving the mortgage if tlié plaintiff acted in good faith in taking the mortgage.

The substance of the fourth instruction for appellant, as asked, was that if the mortgagor was indebted to both plaintiff and Peering, then plaintiff had a right to secure himself by taking a mortgage, even though he knew the mortgagor was - indebted to Peering. This last instruction the court modified by adding the words, “if it was not .his intention thereby to hinder and delay Peering in the collection of his debt but to protect himself.” The gist of both the third instruction and of the modification to the fourth, is the affirmative intent to hinder and delay, and there was no error in either giving the one or qualifying the other. There is no question but that the evidence tended to prove the mortgage was made as well to place the property beyond the reach of the creditor Deering, as to secure a debt due the plaintiff, and that the plaintiff had notice of and participated in the intent to delay and hinder Deering in the collection of his claim. The instrument was not purged of fraud because such intent was not the sole purpose the parties had in view in making and taking the mortgage. Merry v. Bostwick, 13 Ill. 398-410; Boies v. Henney, 32 Ill. 130; Reed v. Noxon, 48 Ill. 323; Strolnn v. Hayes, 70 Ill. 41; Hansen v. Dennison, 7 Ill. App. 73.

We find no error in the record. The judgment is affirmed.

Judgment affirmed.


author: Bakes, J.

text:
    David Shunick and Pat Morris v. Charles W. Thompson.

      Forcible Flntrii and Detainer—Action on Appeal Bond—Measure of Damages—Former Adjudication—Pleading—Defective Pleas—■Practice.
    1. In an action of debt on a bond the plea of nil debet is bad on demurrer. But if the demurrer is overruled the defendant waives the grounds thereof by pleading to the breaches assigned.
    2. A demurrer to a special plea can not be carried back to the declaration over the plea of non estfactum.

    8. Where a plea purports to answer the whole cause of action, but in fact answers only a part, the whole plea is bad.
    4. Where the plaintiff in an action of forcible entry and detainer is wrongfully kept out of the possession of the premises during the pendency of an appeal, the value of the use and occupation, or the reasonable rental value, is the correct measure of damages in an action on the appeal bond.
    5. A former adjudication of a matter in controversy is conclusive only as to matters actually determined and such other matters as might have been set up and litigated in the first suit.
    6. In the action of forcible entry and detainer the inquiry whether the plaintiff is entitled to rent or damages can not arise. The action is purely statutory and the statute makes no provision for rendering judgment for either rent or damages.
    7. One who does not purchase pendente life can not be injuriously affected by a judgment or decree to which he was not a party.
    8. Objections to the instructions can not be first raised in this court.
    9. In the case presented, the allegation contained in the declaration, that the plaintiff obtained judgment in the action of forcible entry and detainerwas not put in issue by any of the pleas filed, and no evidence of that fact was necessary.
    [Opinion filed January 7, 1888.]
    Appeal from the Circuit Court of Warren County; the Hon. John J. Glenn, Judge, presiding.
    Messrs. Grier & Dryden, for appellants.
    Messrs. Porter & Macdill, for appellee.
   Bakes, J.

This was debt on a bond, dated March 13,1885, and executed by Pat Morris, John Morris, and David Shunick, for the purpose of appealing from the judgment of a Justice of the Peace to the County Court of Warren County, in an action of forcible entry and detainer brought by Thompson against Pat and John Morris.

The conditions of the obligation were those required by section 19 of the forcible entry and detainer act. The declaration filed herein contained four assignments of breach. First. That plaintiff sustained great loss and damage by reason of the withholding of the premises, to wit, the value of the use and occupation of the premises in controversy in said suit by the said Pat Morris and John Morris during the pendency of said appeal, to wit, the sum of §600, which the defendants have wholly failed to pay. Second. That the rent of said premises so withheld from said plaintiff by said Pat Morris and John Morris before the final determination of said suit was worth the sum of §600, from the 1st of March, 1885, to the 1st of March, 1886, during which time said plaintiff was deprived of possession of said premises, which sum the defendants have not paid. The third breach was for costs awarded in the forcible entry and detainer suit, and the fourth breach was for attorney fees and expenses in said suit. A demurrer to the fourth breach was sustained. Demurrers were also sustained to the 2d, 3d, 5th, 6th and 7th pleas. The first plea was non est factum^ and there was issue and trial upon that and upon the fourth plea. Verdict and judgment were for Thompson for $600 debt and $544.46 damages.

The first error assigned is that the court erred in overruling the demurrer to the first and second breaches.

Appellants can take nothing by this assignment, for by pleading to the breaches they waived the grounds of their demurrer. Vanderbilt v. Johnson, 3 Scam. 48; Home M. F. Ins. Co. v. Garfield, 60 Ill. 124; McFadden v. Fortier, 20 Ill. 509.

It is also sought to question the sufficiency of the declaration by insisting that even if the 5th, 6th and 7th ¡deas are bad, they are good enough for a bad decoration, and that the demurrers to them should have been carried back and- sustained to the first and second breaches. A demurrer to special pleas can not be carried back to the declaration over the plea of non est factum. It was expressly so ruled in Mix v. People, 86 Ill. 312. See, also. Culver v. Third Nat. Bank, 64 Ill. 528, and cases there cited.

Besides this, it is the evident intention of the statute, when appeals are taken in actions of forcible entry and detainer, to secure not only rents due or to become due, but also compensation for all injuries occasioned to plaintiffs in such actions, whether the relation of landlord and tenant exists between the parties to the suit or not. The second condition of the statutory bond, therefore, provides for the" payment of rents due or to become due, and the third condition is intended to cover, more especially, cases where the relation of landlord and tenant does not exist.

The condition of the bond here in question is, to pay all damages and loss which the plaintiff may sustain by reason of the withholding of the premises in controversy. The first breach is a good assignment of breach thereon. That breach is not to recover rent or compensation for use and occupation of the promises, but loss and damage sustained by reason of the withholding of the premises; and such loss and damage is alleged to be the value of the use and occupation of the premises during the pendency of the appeal. In Gilliam v. Coon, 10 Ill. App. 43, a case where the parties were not landlord and tenant, this court held that where one wilfully withholds the possession of lands from the owner who is entitled thereto, he incurs a liability for at least their reasonable rental value for the time it is so withheld.

In Higgins v. Parker, 48 Ill. 445, the condition of the bond was to pay “the value of the use and occupation of the premises,” and it was held the suit was not for use and occupation, and that it was only necessary to aver, in assigning breaches of the bond, that the plaintiff had been deprived of the possession during the pendency of the appeal. The case is an authority to show, if any be needed, that “ use and occupation” and “the value of the use and occupation” are not synonymous terms, as seems to be contended by appellants. Appellee was -wrongfully kept out of the possession of the premises during the pendency of the appeal, and no good reason is perceived why the value of the use and occupation of the reasonable rental value during such pendency is not the correct, measure of damages.

'The covenant'd the condition is, to pay all damages and loss sustained by reason of the withholding; and that which he was deprived of was the use an 1 occupation pf the land, and clearly that which would compensate him and make him whole is the value of that of which he is deprived.

It is claimed the court below erred in sustaining demurrers to the 2d, 3d, 5th, 6th and 7th pleas. The 2d plea was nil debet, and it is elementary that in debt on a bond the plea of nil debet is bad on demurrer. The 3d plea, that the defendants do not owe the plaintiff any rent, was but an informal plea of nil debet. The substance of the 5th plea was actio non, because Thompson claimed possession under a lease of a term of one year from March 1, 1885, from Thomas Buzan; that Halloway held an overdue mortgage given by Buzan, and for condition broken, recovered judgment in ejectment on the 8tli day of May, 1885, against John and Pat Morris for the promises, and thereupon took possession thereof, and leased them to Pat Morris until March 1, 1886.

The substance of the 6th plea was actio non, because, after the delivery of the bond, to wit, on April 11,1885, Ilalloway, having a title prior to and better than that of Thompson, leased the premises to Pat Morris, by virtue of which lease Morris afterward entered the premises and ejected Thompson, and has held possession ever since.

The 7th plea was to the 1st and 2d breaches, except as to the sum of §1. The substance of it was that the light of possession upon which recovery was had in the forcible entry and detainer suit was under a lease from Buzan from March 1,1885, to March, 1886; that Hallo way held a mortgage on the land from Buzan to secure §5,200, which, at the time of such leasing, was long past due; that, after the making of the bond' in suit, to wit, on May 8, 1885, Hallo way recovered judgment in ejectment under said mortgage for condition broken against John and Pat Morris, who were occupants of the premises, under which judgment Ilalloway ousted John and Pat Morris and took possession himself; and that thereupon Halloway leased the premises to Morris, who held possession under such lease from that time during all the time complained of, and paid rent to Ilalloway, of all which Thompson had full notice.

We understand appellee to claim that the status of Thompson and of John and Pat Morris in relation to the quarter section of land in question was determined, so far as this case is concerned, by the judgment of February 19, 1886, in the forcible entry and detainer suit, and that such judgment is conclusive upon the defendants in this suit on the bond. This statement, in its application to the present case, perhaps needs the qualification that such judgment is only conclusive in respect to matters which are adjudicated, or might have been adjudicated, in that suit. The rule is, that a former adjudication of a matter in controversy'is conclusive only as to matters actually determined, and such other matters as might have been set up and litigated in the first suit.

The action of forcible entry and detainer is not a common law action, but is purely statutory. St. L. Nat’l Stock Yards Co. v. Wiggins Ferry Co., 102 Ill. 514. The statute makes no provision for rendering judgment in such action for either rent or damages, and they can not be allowed therein. Brush v. Fowler, 36 Ill. 53. The inquiry, then, whether the plaintiff was or was not entitled to damages, did not and could not arise in that suit. But the judgment there rendered is conclu sive that Thompson, the plaintiff therein, was in the actual and peaceable possession of the land, and that Pat and John Morris made a forcible and unlawful entry thereon, and that as against them he was entitled to be restored to possession.

At the time of the institution of the ejectment suit against Pat and John Morris, they were in the occupancy of the premises merely as trespassers. Their wrongful possession was adverse to appellee, and also adverse to the title and possession of Buzan, for it was only gained by forcibly dispossessing his tenant. Even if they had been in possession under Buzan and as his tenants, which they were not, the judgment in ejectment against them, as they gave no notice to him of the pendency of the ejectment suit, would no more have bound Buzan than would a judgment in any other legal proceeding to which he was not a party. Oetgen v. Ross, 47 Ill. 142; Lowe v. Emerson, 48 Ill, 160.

And even if the fact were that the judgment had force against Buzan, the landlord of appellee, yet it would have no vitality as against the rights of appellee himself, since he was not a party to the ejectment suit, and did not take his lease from Buzan pendente lite. It is the doctrine in this State that one who does not enter or purchase pendente lite, can not be injuriously affected by a judgment or decree to which he was not a party. Brush v. Fowler, 36 Ill. 53; Leindeckerv. Waldron, 52 Ill. 283. The judgments in ejectment, then, alleged in the 5th and 7th pleas, were void in respect to the rights of appellee, and added nothing to the strength of such pleas.

The gist of the matter, as shown by these special pleas, is that Halloway, the holder of an overdue mortgage on the land executed by Buzan, the mortgagor not being in possession of the mortgaged premises either in person or by tenant, but they being occupied by mere trespassers,.who were paying rent to no one, took possession of the land, and thereupon leased it to Pat Morris, one of the trespassers. Won constat, that if appellee, the tenant of the mortgagor, had been permitted to remain in actual and peaceable possession, the mortgagee would have ejected hirn before the end of his lease. To so presume would be mere surmise, and no such presumption can be indulged in favor of tort feasors. And besides, intendments are not allowed for the purpose of sustaining a pleading. It would be more reasonable to presume that the mortgagee, finding the mortgaged land apparently abandoned by the mortgagor, and in the hostile occupancy of strangers, deemed it necessary for the protection of his own interests to take possession under his mortgage deed after condition broken, and lease it and apply the rents upon his mortgage debt. It is equally probable that Halloway was induced, after the appeal was taken, solely by the interference and procurement of Pat and John Morris, to claim the land for condition broken. We think these pleas presented no legal defense to the action, and that there was no error in sustaining demurrers to them.

The 5th and 6th pleas were further objectionable in that they proposed in their commencements to answer the whole of all the breaches. They were entirely irresponsive to the third breach, and no ground is pretended to be shown in them why "appellee should not recover the value of the use and occupation of the quarter section of land in question from the 13th of March, 1885, the time the bond was given and appeal perfected, to the time Halloway took possession, which was on the 8th day of May following, as stated in one plea, or on the 8th day of April following, as stated in the other. There is no presumption of law that the use and occupation of the land for such periods was of no value. If a plea purports to answer the whole cause of action, but in fact answers only a part, the whole plea is bad. 1 Chit. Pl, 523; People v. Weber, 92 Ill. 288.

Objection is made to the instruction of the court in regard to the form of the verdict. It was not specified in the written motion filed for a new trial that there was any error of the court in giving instructions. Ottawa, O. & F. R. R. R. Co. v. McMath, 91 Ill. 104. Moreover, it is evident the instruction did no harm.

The only other point made by appellants is that there was no evidence before the jury that plaintiff had been successful in the forcible entry and detainer suit. It was not necessary to introduce evidence of that fact. The recovery of judgment in the County Court was alleged in the declaration, and was not traversed by any plea. The plea of non est factum, not sworn to, only enabled the defendants to take advantage of any variance there might have'been between the bond declared on and that offered in testimony. The recovery of judgment, as stated in the declaration, stood solemnly admitted upon the record; no evidence was needed to prove it, and the defendants could not have been heard to controvert it; no inquiry in respect to the truth or falsity of the averment in question formed any part of the issues submitted to the jury.

We find no error in the record. The judgment is affirmed.

Judgment affirmed.


author: Lacey, J.

text:
    Allisseus Neustacher v. Kathriya Schmidt.

      Action against Step-Father to Recover for Services and Rent—Statute of Limitations—Dower—Rights of Widow before Assignment—See. 27, Chap. 3é, Gross' R. S.

    1. In an action by a step-daughter against her step-father to recover for services and rent on certain premises, of which she was one of the heirs, it is held: That the evidence of a promise to pay wages and rent is weak and unsatisfactory; that the evidence to support a new promise to remove the bar of the Statute of Limitations is insufficient; and that, without a promise to pay, the defendant is not liable.
    2. To remove the bar of the Statute of Limitations the new promise must be definite as to amount, and the evidence of such promise must be clear and satisfactory.
    8. See.'27, Chap. 34, Gross’ R. S., 2d Ed., 1869, was not a homestead statute. Under that section the widow might retain possession of the house and plantation where the husband most usually dwelt, next before his death, free from rent until her dower was assigned.
    [Opinion filed January 7, 1888.]
    Appeal from the Circuit Court of Bureau County; the Hon. W. Stipp, Judge, presiding.
    Messrs. Eckels & Kyle, for appellant.
    If a child remains with a parent after arriving at majority, in the same apparent situation as when a minor, in the absence ' of a contract no recovery can be had for services so rendered. And the same rule applies to step-children, when they stand to each other in the relation of parent and child. Brush v. Blanchard, 18 Ill. 46; Miller v. Miller, 16 Ill. 296; Freeman v. Freeman, 65 Ill. 106; Byers v. Thompson, 66 Ill. 421; Morton v. Rainey, 82 Ill. 215; Guffin v. First Hat. Bank, 74 Ill. 259; Cooper v. Cooper, 3 Ill. App. 492.
    A promise to pay wages after the work has been done, and which was not understood by the parties at the time it was done, that it should be paid for, is without consideration and can not he enforced. Gruffin v. First National Bank of Morrison, 74 Ill. 259; Arnold v. Franklin, 3 Ill. App. 141.
    The widow may, in all cases, retain the full possession of the dwelling house in which her husband most usually dwelt , next before his death, together with the outhouses and plantation thereto belonging, free from molestation and rent until her dower be assigned. Chap. 34, Gross' Statute 1871, Sec. 27, page 219.
    Where a new promise is relied upon to take a case ont of the Statute of Limitations, the promise must be to pay the particular debt; it must be unconditional; it must have been made within five years next preceding the commencement of the suit, and it must be proved by clear and satisfactory evidence. Cagwin v. Ball, 2 Ill. App. 70; Hayward v. Gunn, 4 Ill. App. 161; Kallenbach v. Dickinson, 100 Ill. 427; Wachter v. Albee, 80 Ill. 47; Carroll v. Forsyth, 69 Ill. 127; Dickerson v. Sutton, 40 Ill. 403.

      The new promise must be to pay the particular debt, and it must be so certain in its character and terms as to create a new debt of the same character and dignity of the old. Sennott v. Horner, 30 Ill. 429 ; Kallenbach v. Dickinson, 100 Ill. 427.
    Messrs. Gibons & Gibons, for appellee.
   Lacey, J.

The appellant was married to the mother of the appellee in 1863, the mother having at the time three children by her first husband, she, the appellee, eight years old, being the oldest. The other two were a boy and girl, the next youngest being the girl, about two and one-half years younger. The father of the appellee owned forty acres of land, on which he and the mother resided at the time of his death, and she and appellant continued to reside thereon for some years after the appellant’s marriage with her. The appellant and appellee’s mother had four more children born to them after their marriage. The appellant raised all those children as one family, treating the three step-children as his own, and furnishing them support. The appellee, after she became eighteen years of age, continued to reside with appellant as a member of the family, the same as before, until she wras twenty-eight years of age, when she was married, with the exception of about eleven months she was out working on her own account.

It is not claimed that she could recover anything for wages without an express agreement on the part of appellant to pay wages, as the presumption of law would otherwise be that the services were rendered gratuitously or as a member of the family. Guffin v. First Nat. Bank, 74 Ill. 259. Such a promise the appellee undertook to show on the trial, and as the most if not all the claim had been barred by the Statute of Limitations, also to prove a subsequent promise to take the case out of its operation. Another portion of her claim was rent for her interest in the forty-acre tract of land for about ten years, being from the time the appellant and his wife ceased to occupy it as a homestead. The appellee recovered in the court below the sum of §1,188.44.

The entire proof of the alleged promise in the first instance to pay appellee wages, rests on the oath of the appellee, and of the subsequent promise to pay, on her testimony and that of her husband. All this is absolutely denied by the appellant, and strongly corroborated by the younger sister of appellee, Mrs. Meisel, who lived at home all or a greater portion of the time, the same as appellee, and worked and was treated the same, and she never heard it intimated by her sister that she was working for wages, and appellee was never paid anything on account of wages, but was clothed the same as before. Mrs. Meisel was never promised anything for rent for the use of the forty-acre tract of land. According to appellee’s testimony she was twenty-four years old when she left and went away from home to work and then worked for appellee about a year after that at her sister’s (Mrs. Meisel’s) request, she wanting to get married, and also that of her step-father. Appellant, she says, would pay her what she was getting from others, which was §2.50 per week. This was before she went back from Mendota. She says after he promised to pay her she went back to work. She also says in another part of her testimony that her father agreed to pay her §2.50 per week after she was eighteen; the time when this promise was made is not stated; and he also promised to pay §2.50 per week when she was stacking barley when she was twenty-three years old. This is substantially all her testimony as to the agreement to pay her for work. The statement that her step-father agreed to pay her after she was eighteen years of age, must refer to the time she claims it was made before she went back, or at the time she was stacking barley there. In neither of these was there any agreement to pay her for past services, only for those to be rendered in the future. There is no evidence of any agreement prior to that time, and even if there had been one made subsequently to the rendition of the services it would have been without consideration, as appellant was not bound to pay anything. See Guflin v. First National Bank, supra.

There was only about three years’ services performed by appellee after she came back from Mendota. If she were only allowed for this it would only amount, at §3.50 per week, to 8390, subject to rebate for her clothing in the meantime. This amount, together with any reasonable allowance, if any could be made for the use of the land, would fall far short of the amount of the verdict. The next question is, was she entitled to any pay for the rent of the land? Sec. 27, Chap. 34, Gross’ R. S., 2d Ed., 1869, provides as follows:

“The widow may, in all cases, retain the full possession of the dwelling house in which her husband most usually dwelt, next before his death, together with the outhouses and plantation thereto belonging, free from molestation and rent until her dower be assigned.” This is not a homestead statute, as was held by the court below in appellee’s 6tli instruction. It was passed long before the homestead law, was independent of it, and had nothing to do with it. If the house and the plantation thereto belonging was the place where the husband usually resided next before his death, then the widow might retain full possession of it, free from molestation and rent until the dower should he assigned. The language of the statute does not require that the widow should occupy the building and premises as a homestead, but only possession is required, and that does not mean that she must actually reside on' it to possess it. The dower was never assigned, and the late widow, appellant’s wife, continued to possess it and gave the use of it to her husband. The husband was not compelled to account for the use of it to the heirs. The rents did not belong to them and would not until the widow’s dower was assigned.

If the mother had surrendered her claim to them it might, but there is no evidence of that. The appellant also gave money enough to his wife, some 8250, to raise the incumbrance upon it, existing at the death of appellee’s father. He also made lasting and valuable improvements and repairs and paid all the taxes on it. It is highly improbable that appellant, .having the right to all the rents, through the consent of his wife, would voluntarily agree to pay appellee or her husband rent for the land, or to pay her wages that he was not hound for.

We will next consider the question of the subsequent promise which, it is supposed, took the case out of the Statute of Limitations. .And we will consider it without reference to the question of whether there was any original debt to revive. The appellee testified that her step-father told her he would pay her her share of the rents when she got married. The last conversation was about the time she was married. The appellee’s husband testified that some time before he was married (about three weeks), he told the appellant that he was going to marry the girl. Appellant said “he did not have any money, but if we would support ourselves for a year, after that he would pay her for her wages and rent; about a year after that he said he did not have the money but would pay her a year after that; the last conversation appellant said he did not owe anything.” On cross-examination witness says appellant said: “'I will pay you all I owe her for wages and rent.” 66 There was no amount the defendant promised to pay.”

We do not think this promise is definite enough. All that it amounted to, if true, which is denied by appellant in his testimony, is tliatpf upon a settlement he owed appellee anything he would pay it. At least, taking it most strongly, it was only inferable that he owed her some amount for rent and wages, and would pay what was found due on a settlement. The question of his offsets for taxes paid and improvements made and the amount paid to remove incumbrances and the time he occupied the land and the reasonable amount of rent for the land, were all left open questions to be settled and adjusted the same as it originally was. In the same manner everything concerning the wages, deductions for goods furnished, time worked and the amount of wages, were left open.

The Statute of Limitations is a statute of repose passed on considerations of public policy for the general good of society. After the lapse of the statutory period the debt is conclusively presumed to be paid. The debt may be revived by a definite promise to pay the debt after stating the amount or referring to something like a promissory note wherein the amount is definitely fixed. Nothing of the kind is done here; the entire controversy is left open the same as it was before the statute had run.

The alleged promise did not clearly admit that the appellant owed any sum of money to appellee. If upon a final settlement between them it had been found that appellant owed nothing, then such promise would have been fulfilled without the payment of any sum of money.

Again, the claim for rent at the time of the alleged new promise, was partly barred, i. e., that portion of it that was more than five years old, and also all that claim for wages, the services for which had been rendered more than five years previously. Portions were not barred at the time of the alleged promise. The marriage must have been in 1883, and the appellee came of age in 1873. At the time of the supposed promise there was a lapse of ten years for which wages and rent was claimed. ¡Nothing has accrued since then. Five years of that ten was barred. There was no promise made in the field when appellee “ was stacking barley ” in 1878, when she was twenty-three years old, to pay wages for work already performed, nor at the time she came back from Mendota. She says, however, that her father promised to pay her wages after she was eighteen years old. We, however, find that the only evidence as to when this promise was made, is her testimony as to what was said at the time she was married. She says as to that conversation, concerning her claim for $2 per week from the time she was eighteen, her step-father told her he would pay her “when I got married.” If this does not fix the time then there is no time proven. As to the rent, 'she says that, “ when I was eighteen years old he promised to pay me the rents.” There is no other evidence of any other promise till about the time she was married. So that there was a bar of at least five years of her claim at the time of the alleged promise about the time she was married. ¡Now, when appellant said he would pay her all he owed her for rent and wages, did he mean to include all those portions that had been barred by the statute? Legally, he did not owe for that at all. The agreement and expressions are too equivocal to take the case out of the Statute of Limitations. “The evidence must be clear and satisfactory to overcome the bar of the statute.” Wachter v. Albee, 80 Ill. 47; Carroll v. Forsyth, 69 Ill. 127. "We regard the evidence offered by appellee to prove a promise in the first instance to pay rent and wages as being weak and unsatisfactory, and the evidence to support a new promise insufficient to sustain the verdict. Several of the instructions given for appellee and modifications of appellant’s instructions were erroneous and are sufficiently pointed to by what is said in this opinion.

The judgment of the court below is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    John G. Schumm and Fred. W. Schumm v. The Village of Gardener.

      Dram Shops—Municipal Corporations—Classification of Licenses by Quantity—Clause 46, Sec. 1, Art. 5, Incorporation Act of 1672.

    A dram shop license to sell intoxicating liquors in quantities less than one gallon, does not exhaust the power given to municipal corporations by clause 46, Sec. 1, Art. 5, of the general incorporation act of 1872. Hence an ordinance requiring a license before making sales of liquor in excess of one gallon is valid.
    [Opinion filed January 7, 1888.]

    Appeal from the Circuit Court of Will County; the Hon. Charles Blanchard, Judge, presiding.
    Messrs. S. W. Munn and R. M. Wing, for appellants.
    Section 6 of the ordinance is void because it is not a proper and legitimate exercise of the power to “ license, regulate or prohibif’the sale of intoxicating liquors. Wemaintain that the section of the ordinance under which judgment was rendered against appellants is void; that the village had no authority to impose an additional license of this kind upon persons already holding a dram shop license to sell in ^quantity less than one gallon. Such an ordinance is wholly without authority of law. The warrant for the statutory inhibition of sales of intoxicating liquors in quantities less than one gallon without a license, is found in the universally recognized fact that such sales necessitate police supervision. The fact that this legislative inhibition refers to the vending of intoxicants in less quantities than one gallon, furnishes a measure of the legislative judgment of the State as to the quantity of liquor which, if sold, would result in evil, and hence the subject of a license; and the quantity that would, when sold, be harmless, and hence free from legal regulation. The.proposition that we urge is, that the power to impose a license under the law is exhausted, in the individual instance, when a license under the dram shop act is' issued. Where a license is properly given to keep a dram shop all the restraint in the matter of license which is legally possible has been exercised. All the evils that the law contemplates may arise from the sale of intoxicating liquors have been guarded against. In effect the law is, that sales of less than agallón are harmful, and all other sales, with certain exceptions as to locality, harmless; where such sales are authorized by license, such license necessarily embraces sales of the larger and harmless quantity. The imposing of an additional and further license for sales of one gallon and over upon a person holding a dram shop license, is an oppressive and unwarranted act, disclosing simply a purpose to secure revenue. The harm that is supposed to result from sales is fully provided against by requiring a dram shop license, and theie is neither necessity nor reason for imposing any further license. It may be true that under the general incorporation act of the State this village had power to prohibit entirely all sales of liquor within the corporate limits of the village, and we insist that where this right was not exercised and the right of licensing was exercised, it could only legally be done in conformity with the dram shop act.
    Mr. C. A. Hill, for appellee.
   Baker, J.

The village of Gardener is organized under the general act for the incorporation of cities and villages, in force Julv 1, 1872. Clause 46 of Sec. 1 of Art. 5 of that act con, fers upon cities and villages incorporated under its provisions power “to license, regulate or prohibit the selling or giving away of any intoxicating, malt, vinous, mixed or fermented liquor, the license not to extend beyond the municipal year in which it shall be granted, and to determine the amount to be paid for such license; provided, that the City Council, in cities, or President and Board of Trustees, in villages, may grant permits to druggists for the sale of liquors for medicinal, mechanical, sacramental and chemical purposes only, subject to forfeiture, and under such restrictions and regulations as may be provided by ordinance; provided, further, that in granting licenses such corporate authorities shall comply with whatever general law of the State may be in force relative to the granting of licenses.”

Sec. 1 of ordinance No. 10 of the village of Gardener imposes a penalty of not less than §20 nor more than §100 upon any person who sells or gives awTay, within the limits of the village, any intoxicating, malt, vinous, mixed or fermented liquors, in any quantity whatever, without first having obtained a license so to do. Secs. 2, 3, 4 and 5 make provision for issuing licenses to keep dram shops, in which may be sold or given away such liquors in a less quantity than one gallon; and See. 6 provides for the issuing of licenses upon the payment of the sum of §100, authorizing the sale or giving away, within the corporate limits, of all or any of such liquors, “ in a quantity of one gallon or exceeding one gallon.”

On the fourth day of July, 1885, the above mentioned ordinance being then in force, appellants, who held a license from the village authorities to keep a dram shop and “ sell, vend and retail vinous, spiritous, malt, mixed and fermented liquors in a less quantity than one gallon,” sold, at their dram shop in said village, such liquors in quantities over one gallon.

In this suit, brought by the village against appellants for the violation of the ordinance, the Circuit Court of Will County found the issues for the village, and entered judgment against appellants for a fine of §20 and costs.

A dram shop license to sell intoxicating liquors in quantities Jess than one gallon, does not exhaust the power given by clause 46 of Sec. 1 of Art. 5 of the general incorporation act of 1872, and an ordinance requiring a license before making sales of liquor in excess of one gallon is valid. The license which the appellants paid for and had at the time of the sales in question, only authorized them to make sales of liquors “in a less quantity than one gallon; ” and when they sold in quantities over one gallon, it was in plain violation of Sec. 1 of the ordinance which made it unlawful to sell liquor in any quantity whatever that was not authorized by the license which was held.

The principal points made by appellants are, that Sec. 6 of the ordinance is void because it is not a proper and legitimate exercise of the power “to license, regulate and prohibit” the sale of intoxicating liquors, and that said section is invalid because it is not in conformity with the dram shop act. These points are fully met in the elaborate and exhaustive opinion of the Supreme Court in the late case of Dennehy v. City of Chicago, 120 Ill. 627.

It was there held that the words contained in the said clause 46, “to license, regulate and prohibit the selling or giving away of intoxicating malt, vinous, mixed or fermented liquors” are generic, and authorize the classification of sales and gifts by quantity or purpose, or both, and the imposition of different charges for licensing, as classified, subject only to the qualification expressed in the dram shop act, and the amendment thereto; and that the sum charged for a license to sell liquors in quantities of one gallon or more is not a tax, but is a burden imposed as the price of a privilege which may be denied altogether, and that the reasonableness of the amount exacted is not a question for the courts to pass upon. It is also plainly deducible from the opinion of the Supreme Court, that the requirement in the amendatory dram shop act of June 15, 1883, that no dram shop license shall be granted for less than $500 per year, does not affect the matter of licenses granting the privilege of selling liquors in quantities of one gallon or more. In fact, the case cited seems to be decisive of the suit in hand, and to fully meet the various objections urged by counsel to the judgment herein.

We may remark, in conclusion, that if the license issued to appellants to keep a dram shop is invalid for the alleged reason that Secs. 2, 3, 4 and 5 of the ordinance are in conflict with the general law and void, as seems to be intimated, we are wholly nnable to see how that would benefit appellants when charged with violating Sec. 1 by selling liquor without having a license that authorized such sale.

If Secs. 2, 3, 4 and 5 are disregarded, as being invalid and void, then the state of the case would seem to he that See. 1 imposes a penalty for selling liquor in any quantity whatever without a license, and that the only license the ordinances provide for is one under Sec. 6 for the sale of liquors in a quantity of one gallon or exceeding one gallon. Appellants make no claim that they have a license of that kind.

We find no error and the judgment is affirmed.

Judgment affirmed.