author: Mr. Justice Fitch

text:
    The People of the State of Illinois ex rel. Louis C. Hanavan, Appellee, v. Martin O. Heckard and Herman N. Bundesen, Appellants.
    Gen. No. 31,205.
    1. Census and vital statistics — powers of registrar of vital statistics. The duties of the registrar of vital statistics of Chicago ‘and of the State department of public health as to birth certificates under Cahill’s St. eh. 65a, 28, 33, 34, are specified and purely ministerial with no judicial power or right whatever to refuse to accept and file a birth certificate, stating the required statutory facts and certified by a physician with an unrevoked license from the department of registration and education.
    2. Physicians and surgeons — right of licensed osteopath to practice obstetrics. One who holds a license by the express terms of which he is ‘‘a duly licensed osteopathic physician” entitled to practice “in accordance with the tenets of the osteopathic school,” of which obstetrics is a branch, who handled a large number of obstetrical cases for several years without any objection to the birth certificates signed by him and who was refused examination in obstetrics only on the ground that no such examination for osteopaths was provided, and who was professor of obstetrics in an osteopathic college, has the right to practice obstetrics.

      3. Physicians and surgeons — time for examination of osteopaths on subject of obstetrics. The legislature intended in passing the section found in CahiE’s St. eh. 91, If 9, that the examination in obstetrics therein provided for osteopathic physicians should be taken at the same time as their examination for a license and not after one had already been issued.
    4. Physicians and surgeons — rights of osteopath to practice obstetrics without special license. A license to practice osteopathy, which includes obstetrics, issued to an osteopathic physician before the Medical Practice Act, Cahill’s 1923 St. ch. 91, and continued in force by paragraph 23, thereof, but no provision for a special license to practice obstetrics being provided in such eases entitles him to practice obstetrics since he is fully qualified and the legislature cannot deprive him arbitrarily of his constitutional right to practice his profession.
    5. Physicians and surgeons — construction of provisions governing examination of drugless practitioners. The provisions of Cahill’s St. ch. 91, If 12, providing examinations for drugless healers wishing to practice medicine and surgery, is not meant to apply to an osteopathic licensee who wishes to be examined solely as to his quaHfications to practice obstetrics in order to remove any question as to his right to do so.
    6. Physicians and surgeons — necessity for licensed osteopath’s talcing examination as midwife to practice obstetrics. In order to practice obstetrics in Illinois an osteopathic physician who secured his license before the passage of Cahill’s St. ch. 91, is not required to take the examination provided in paragraph 11 thereof, for a Ecense for midwifery, which he does not want and which would not enable him to carry on his practice as obstetrician.
    Appeal by defendants from the Superior Court of Cook county; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the second division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed March 29, 1927.
    Francis X. Busch, Corporation Counsel, and Roy J. Egan, Assistant Corporation Counsel, for appellants; Cora B. Hirtzel, Roy S. Gaskill and W. Arnold Amberg, Assistant Corporation Counsel, of counsel.
    Kirkland, Patterson & Fleming, for appellee; Louis G. Caldwell, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.

This is a mandamus proceeding. The question involved is whether the department of public health and its local representative, the registrar of vital statistics of the city of Chicago, are required to accept and place on file, as matters of public record, birth certificates made by one who was duly licensed prior to the passage of the Medical Practice Act of 1923 to practice as an osteopathic physician but has no other license to practice obstetrics or midwifery.

The relator, Dr. Hanavan, holds a certificate from the department of registration and education dated in June, 1918, which states that he is a “duly licensed osteopathic physician, ’ ’ and is ‘ entitled to treat human ailments without the use of drugs or medicine, and without operative surgery, and to practice such treatment in accordance with the tenets of the osteopathic school of practice.” After receiving his license, he engaged in practice as an osteopathic physician, specializing in obstetrics. During the following seven years, he successfully handled approximately 450 obstetrical cases. After each birth, he made and filed with the local registrar (the defendant Dr. Martin 0. Heckard) a birth certificate as the “attending physician,” pursuant to the requirements of section 12 of the Vital Statistics Act, Cahill’s St. ch. 65a, 28. In signing these birth certificates, Dr. Hanavan wrote after his name the initials “D. 0.,” meaning doctor of osteopathy.

All his certificates were accepted and filed by the local registrar, apparently without question, until the year 1925. In the summer of that year he learned, however, that several of them had never been filed, for the reason, as stated, that they were “not in proper form. ’ ’ Dr. Heckard, the local registrar, testified that acting on the instructions of Dr. Eawlings, the director of the State department of public health, he had refused to file them, upon the sole ground that Dr. Hanavan was not authorized to file such a certificate because he “is not a licensed practitioner of medicine and surgery in all the branches, and is not a licensed midwife. ’ ’

It further appears, from the answer of the defendants, that they emphasized their refusal by sending a representative of the health department to ask the father of each of the children mentioned in the rejected certificates to fill out and present a birth certificate certified by such father, “because there was no birth certificate on file” in that department “according to the form” required by statute. The record shows that the only change made by Dr. Hanavan in the form issued by the health department was to cross out the initials “M. D.” and the word “Midwife,” which were printed at the end of the blank space for the signature of the attending physician, and to insert in lieu thereof the initials “D. 0.” after his signature.

After eight of his birth certificates had been thus refused, Dr. Hanavan filed his petition for mandamus to compel defendants to accept and file them as public records. Defendants answered the petition, claiming that they were justified in their refusal for the reasons above stated. A hearing was had and a writ of mandamus was awarded. Defendants appealed.

The evidence on behalf of the petitioner is uncontradicted. It shows that after a preliminary education in the grammar school and four years in high school, Dr. Hanavan entered the Chicago College of Osteopathy in 1913, where he pursued a full 4-year course of study, graduating in June, 1917; that his course of study at that college covered exactly the same subjects as the medical colleges cover, with the exception of materia medica, which was given in a different form; that obstetrics is a branch of osteopathy, the study of which is compulsory in osteopathic colleges, where it is taught “in the same fashion” as in medical colleges; that he took the course in obstetrics prescribed by his college; that he studied the same obstetrical textbooks as the medical schools use, and that the time given to the study of obstetrics in his college was even greater than that given in the medical colleges; that he also took a 2-year postgraduate course in obstetrics and surgery and received a certificate from his college to that effect; that in June, 1918, he took the State examination for what is popularly known as a ‘‘drugless license,” passed the examination and received a license in the form above stated; that his examination covered the same subjects as examinations given to applicants for medical licenses, with the exception of materia medica, obstetrics and surgery, upon which subjects the examining board at that time refused to permit him to be examined ; that after the Medical Practice Act of 1923 was enacted, he applied to the department of registration and education for a special examination in obstetrics, but was refused such an examination for the stated reason that “they had not fully interpreted the law”; and that later the department ruled that such special examinations in obstetrics could be given only to those applicants for osteopathic licenses who graduated after the Act of 1923 was passed.

In the argument made in the trial court, the trial judge suggested that it was not the province of the department of public health to question the authority of any physician to make and file birth certificates so long as he holds a physician’s license regularly issued to him by the department of registration and education. In our opinion, the suggestion was pertinent and of much force. It was stipulated on the trial “that the only thing wrong with these certificates as pre-sented was the fact that they claimed in the Department that Dr. Hanavan was an osteopath and not a licensed M. D. or midwife.” By the terms of his license, Dr. Hanavan was authorized in terms to practice as an “osteopathic physician.” In People v. Siman, 278 Ill. 256, it was held that one who holds such a license is a “legally qualified physician” within the meaning of those words as used in the Vital Statistics Act and entitled to make the death certificates required to be made by section 7, Cahill’s St. ch. 65a, ¶ 23, of that act. Section 12, Cahill’s St. ch. 65a, ¶ 28, of the same act requires birth certificates to be made by the “attending physician.” There is nothing in that act requiring the certifying physician in either case to be “a licensed M. D.” or preventing a licensed “D. 0.” from making such certificates.

Section 18 of the Vital Statistics Act, Cahill’s St. ch. 65a, ¶ 34, requires the local registrar to examine birth certificates which are presented, and if any such certificate “is incomplete,” the registrar shall at once notify the person who made it and “require him or her to supply the missing items, if they can be obtained.” The same section requires the certificates to be numbered, marked, filed, recorded and copies to be deposited with the county clerk. The originals, are required to be sent, on the tenth day of each month, to the department of public health. Section 17, Cahill’s St. ch. 65a, If 33, provides that the department shall examine “the certificates received monthly from the local registrars and if any such are incomplete or unsatisfactory shall require such further information to. be furnished as may be necessary to make the records complete and satisfactory.” The words “satisfactory” and “unsatisfactory” in this section clearly refer to the statistical and genealogical “information” the birth certificates are required to contain, and not to the kind of college degree held by the attending physician.

Under these sections, the duties of the registrar and of the department of public health in such cases are particularly specified and are purely ministerial. The act gives them no judicial powers, nor any right, directly or indirectly, to refuse to accept and file a birth certificate which states the facts required by the statute to be stated therein, when certified by an attending physician who holds an unrevoked license from the department of registration and education to practice as a physician.

But if it be conceded that the right of the relator to a writ of mandamus against defendants on the theory suggested is a doubtful right only, not justifying the issuance of a peremptory writ, then the question chiefly discussed in the briefs of counsel becomes important and material, viz, whether, on the facts shown, Dr. Hanavan has the right to practice obstetrics under the license he now holds. There are two reasons, both valid in our opinion, why this question must be decided in his favor.

The first reason is based upon the evidence in this case. By the express terms of his license, Dr. Hanavan is “a duly licensed osteopathic physician,” entitled to practice as such “in accordance with the tenets of the osteopathic school of practice.” It appears from this record, as an uncontradicted fact, that “obstetrics is a branch of osteopathy,” recognized and taught as such by the osteopathic colleges, and practiced' as such by osteopathic physicians in the same manner and by the same means, except as to the use of drugs and operative surgery, as it is taught in the medical schools and practiced by medical doctors. Under this evidence, the theory of defendants that Dr. Hanavan’s license does not permit him tp practice obstetrics is no more tenable than if his license was to practice medicine in all its branches.

It appears that it was through no fault of his that he was never examined in obstetrics. He applied for such an examination- twice, once before and once after the Act of 1923 became" effective, and on both occasions his request was refused, apparently on the theory that there was and is no statutory provision requiring or authorizing a graduate of a school of osteopathy to take an examination. The evidence shows that the relator was fully qualified both by study and experience to practice obstetrics. In addition to the testimony as to his qualifications already mentioned, it appears from a catalog introduced in evidence that in 1922 he was a member of the faculty and an associate professor of obstetrics in the college from which he graduated.

The second reason is based partly on the evidence and partly on the law applicable thereto. The relator’s license was issued in 1918. The present Medical Practice Act, Cahill’s St. ch. 91, which was approved June 30, 1923, expressly repeals the prior acts of 1899 and of 1917, but contains a provision (sec. 22) giving to all valid licenses issued under any prior act the same force and effect as licenses issued under the Act of 1923.

In People v. Love, 298 Ill. 304, decided in June, 1921, the Act of 1917 was held to be discriminatory and void in so far as it purported to apply to those who practice any system of treating human ailments without the use of drugs or medicine and without operative surgery. In its opinion the court held that the right to follow any lawful occupation or profession, such as the practice of medicine or the law, is a fundamental right of citizenship, and such profession or occupation is “property” within the meaning of the constitutional provision as to due process of law and is also included in the right to liberty and the pursuit of happiness; that while the legislature, in the exercise of the police power, may make reasonable requirements as to the examination and qualifications of those intending to practice medicine, yet such requirements must not be arbitrary nor discriminatory. The defendant in that case was a chiropractor, a graduate of a well-known school of chiropractic, but had no license to practice in Illinois. By the decision, a fine imposed on him for practicing without a license was reversed.

In People v. Schaeffer, 310 Ill. 574, decided in December, 1923, the defendant was licensed to practice in Illinois as an osteopathic physician, and the department of registration and education recovered a judgment against him for performing a surgical operation without being licensed to practice surgery, it being alleged that this was a violation of the Medical Practice Act of 1899. The court held, on the principles declared in the Love case, supra, that the Act of 1899 was void as to the defendant because it deprived him of his constitutional right to practice surgery when the record showed that he was “just as efficient and as well prepared by college and hospital training to practice surgery as are the physicians of the medical schools.” (See page 583 of the opinion.)

The Schaeffer case, supra, was followed by the similar case of People v. Graham, 311 Ill. 92, decided February 19, 1924. The opinion in that case said: “There was no provision of the act (of 1899) under which a license to practice surgery could have been given to the defendant. The right to such a license was limited to a class to which he did not belong, and as the law does not require a useless act to secure a right, the defendant was not called upon to apply for a license that could not be granted.”

The present Act of 1923, prescribing the qualifications and providing for examinations of persons desiring licenses to practice any system of treating human ailments, is a revision of the prior acts and in a general way corresponds to the form of the Act of 1917, which was rewritten with the apparent intention of removing the discriminatory, features and supplying the omissions of the prior acts.

Section 9, Cahill’s St. ch. 91, ¶ 9, provides that applicants “who seek to practice any system or method of treating human ailments without the use of drugs or medicines and without operative surgery” shall pass the same examination as that required of applicants who seek to practice medicine in all its branches ‘ ‘ excepting therefrom materia medica, therapeutics, surgery, obstetrics, and theory and practice,” but that “if the applicant is a graduate of a professional school, college or institution in which obstetrics was taught to' him as well in the judgment of the department as such subject was taught at the same time in medical colleges in the United States reputable and in good standing in the judgment of the department, he may upon his request be examined in obstetrics.” This is the first provision found in any Illinois statute, permitting or requiring an applicant for a drugless license to be specially examined in obstetrics.

Section 11, Cahill’s St. ch. 91, ¶ 11, provides that three kinds of licenses may be issued “to applicants passing examinations therefor” (1) to practice medicine in all of its branches; (.2) to treat human ailments without the use of drugs or medicines and without operative surgery, “the applicant under such a license to be specifically restricted by the terms thereof to the practice of the system or method which he specifically designated in his application as the one which he would undertake to practice, but such of these applicants as shall have successfully passed the examination in obstetrics under the requirements of section 9 of this Act shall also be specifically licensed in the same instrument to practice obstetrics”; (3) to practice midwifery.

These are the only provisions in the present act which authorize an applicant for a drugless license to be examined in obstetrics without being also examined in materia medica, surgery, “therapeutics, and theory and practice” (of medicine 1) as provided in section 12, Cahill’s St. ch. 91, ¶12, and it is apparent from the foregoing quotations that the legislature intended that the special examination in obstetrics provided for in section 9 must be given at the same time as the examination for a drugless license is given, and not after a license has been issued to the applicant, for it is only by giving this construction to sections 9 and 11 that any effect can be given to the words “in the same instrument” found in the last clause of section 11 above quoted. . The evidence shows that this is and has been the construction placed by the department of registration and education upon sections 9 and 11 of the present act, and we think the ruling is correct.

It follows from this construction that if the license now held by the relator does not include the practice of obstetrics, nevertheless, as there is no provision in the present act under which he can be given an additional or special license to practice obstetrics, and as the record shows that he is fully qualified to do so, he is entitled to practice obstetrics under his license as it stands, without violating any law of this State. Any other construction of the act in this respect would deprive the relator of his constitutional rights as held in the cases above cited. The examination provided for in section 12, including obstetrics, surgery, materia medica, therapeutics and theory and practice of medicine, is clearly open only to those who, having a drug-less license, desire to obtain a license to practice medicine “in all its branches,” and not to a licensee who desires to be examined only as to his qualifications to practice obstetrics, in order to remove any question as to his right to do so.

It is urged by defendants that the Supreme Court in People v. Witte, 315 Ill. 282, and People v. Walder, 317 Ill. 524, reversed, in effect, the ruling of the department of registration and education as to the construction of sections 9 and 11 above mentioned. We find nothing in the opinions filed in those cases that is inconsistent with that ruling, or showing that the proper construction to be given to sections 9 and 11 upon the question raised in this case was in any way considered.

We may also add that we think it is no answer to the petition in this case to say that the relator may, if he chooses, secure from the State a separate license to practice midwifery. That is not the kind of license he needs in his practice, as the evidence shows, and we know of no principle that would compel him to take an examination for a license which he does not want and which he testified would ruin his practice if he were required to use it. He testified that there is a recognized distinction between the practice of midwifery and of obstetrics, in this, that a midwife handles obstetrical cases only when a normal birth occurs, but “as soon as the case becomes pathological,” it is beyond the scope of a midwife’s practice, and requires the attention and skill of a physician.

For the reasons stated the judgment is affirmed.

Affirmed.

Gridley, P. J., and Barnes, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Herman Cohn, trading as Empire Loan Bank, Appellant, v. New Jersey Fidelity & Plate Glass Insurance Company, Appellee.
    Gen. No. 31,234.

      Insurance — construction of burglar-proof safe insurance policy. Burglary insurance policy covering the contents of a “fire and burglar-proof ’ ’ safe construed and held to apply only to the burglarproof compartment within the safe, and hence not to cover valuables taken from within the safe but outside the burglar-proof compartment.
    Appeal by plaintiff from the Municipal Court of Chicago; the Hon. Howard W. Hates, Judge, presiding.
    Heard in the second division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed March 29, 1927.
    Frederick A. Brown and Samuel J. Hachtman, for appellant; Wm. G. Worthey, of counsel.
    Philip H. Treacy, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

This suit is brougnt on a burglary insurance policy. The defendant insurance company denies that the loss claimed is covered by its policy. After a trial without a jury, the trial court agreed with defendant’s theory and entered a finding and judgment against the plaintiff, who appeals.

Plaintiff is a pawnbroker. In 1924 he had in his possession diamonds, watches and jewelry pledged for loans made by him, and worth approximately $75,000, and in addition he usually carried similar merchandise of his own, worth approximately $50,000. All this property he kept at night in two large safes, the walls of which were fireproof, consisting of an outer plate of steel less than half an inch thick, an inner plate of steel less than a quarter of an inch in thickness, and, between these steel plates, a fireproof filling several inches thick similar to concrete. The outer door of each safe was five inches thick, having a thin steel plate outside and along the edges of the door, inclosing a similar fireproof filling. Inside each of the safes was built a burglar-proof steel chest or compartment approximately a cubic foot in interior dimensions, having a steel door two and one-half inches thick and a combination lock. It appears from the evidence that insurance men and manufacturers of safes use different terms to designate the three types of safes in common use. One type, which is built entirely of steel and found only in banks, is designated by them as “burglar-proof.” Another type, designated as “fire and burglar-proof,” is a safe which has “a fireproof jacket with a burglar-proof chest inside.” This is the type of safes which plaintiff had. The third type, designated only as “fireproof,” has a fireproof covering and has no burglar-proof compartment. The evidence further shows that the premium rate for burglary insurance upon goods kept in “burglar-proof” safes is very much less than upon the same goods when kept in “fire and burglar-proof” safes.

In February, 1924, defendant executed and delivered to plaintiff the insurance policy on which this suit is brought. The photographic copy of the policy in the record shows that a printed form was used in which, between an opening paragraph and a number of printed “General Agreements” regarding notices, proofs of loss, etc., there was a blank space containing only the printed legend “ (Attach Eider Here).” The opening paragraph states, in substance, that defendant, in consideration of “a stated premium, agrees to indemnify the plaintiff in the total sum of $50,000' for 12 months from February 26,1924. The kind and character of losses included in this indemnity agreement are particularly specified, and are only specified, in two riders, each with a special indorsement attached to it, which are pasted in the blank space mentioned.

The first rider provides for indemnity to the extent of $25,000, for losses occasioned by robbery, “commonly known as ‘Hold-up,’ ” from within the office or counting-room or store of the assured, of any of the property scheduled in that rider, which is labeled “Office Hold-up Eider.” There is no claim in this case for any loss under that rider or its special indorsement.

The second rider, attached immediately under the first, is the one under which a loss is claimed in this case. This rider is also a printed form, with blanks filled in with a typewriter. In the lower left-hand corner of the first page of this rider are printed the words: “SAFE BIDEB.” It begins as follows:

“For All Loss of money in current use, negotiable Securities (as hereinafter defined), uncancelled United States Government Post Office or Bevenue Stamps, and merchandise described in the Schedule hereinafter contained, and therein stated to be insured hereunder, in consequence of the felonious abstraction of the same by burglars from the interior of the safe or safes described in the said Schedule and located in the office or storeroom actually occupied by the Assured and described in said Schedule, and hereinafter called the premises, by such burglars who shall have made entry into such safe or safes by the use of tools, explosives, electricity or chemicals directly thereupon, of which force and violence there shall be visible marks on the exterior thereof.”

Then follows a series of printed “Special Agreements,” of which such parts as are material to the question here involved are as follows:

“A. The Company’s liability is limited to the amount of insurance applicable to the contents of the several safes respectively as stated in Statement 6 of the Schedule, and also to the amounts attached to the several items respectively of Statement 5 of the Schedule, and subject to such limits as respects each safe and each item, the total liability hereunder is limited to the sum of Twenty-five Thousand Dollars ($25,-000.00). .
“B. The Company shall not be liable. * * * (9) For loss of any property under insurance attaching specifically to Items B or D of Statement 5 of the Schedule, unless the same shall have been feloniously abstracted from the burglar-proof part of the safe described in the Schedule after entry into the said burglar-proof part shall have been gained by the use of tools or explosives directly upon the said burglarproof part as well as upon the fire-proof part, if any, of said safe. * * *
“C. The term ‘burglar-proof’ as applied in this Policy to a safe or to a part of a safe shall be understood to mean such safe or such part of a safe as is constructed of steel and is designed by the safe manufacturers to furnish protection against burglars and styled by them burglar-proof. A safe, chest or compartment of a safe shall not be considered burglarproof, unless it shall have steel walls at least one inch in thickness, and unless the steel in the door or doors thereof shall be at least one and one-half inches in thickness, exclusive of bolt work.”

After these special agreements follows the “Schedule,” consisting of 15 consecutively numbered “statements.” Statement 5 of the schedule is subdivided into Items A, B, C, D and E, and statement 6 contains 16 tabulated items, beginning with the letter “(a)” and ending with the letter “ (p) ”.

Statement 4 of the schedule is as follows:

“4. The merchandise insured under this policy consists of merchandise usual to the business.”

Statement 5 is as follows, so far as it is applicable in this case:

“5. The insurance granted by this policy attaches specifically as follows:
* * * “Premium.
“Item B. In amount of $25,000.00 to merchandise as described in statement 4 in burglar-proof safe or in burglar-proof part of fire and burglar-proof safe Nos. 1 & 2. $88.00”

Statement 6 of the schedule, so far as applicable here, is as follows:

“6. The safe or safes are described and designated as follows:

The words “See End,” opposite Item (o) in the schedule, refer to the special indorsement pasted on the front of the “Safe Rider.” That indorsement reads as follows:

“It is understood and agreed that the insurance granted under the Safe Rider covers blanket in Safes No. 1 and No. 2 but the Company’s total liability on both Safes shall not exceed Twenty-five Thousand Dollars ($25,000.00).”

Plaintiff testified, and it was not disputed, that on the night of April 5, 1924, his shop was entered by burglars, who blew off the outer door of safe No. 2 described in the schedule, and carried away diamonds, watches and jewelry "valued at more than $25,000 from the interior of the safe, but they were unable to enter the burglar-proof inner compartment, which at that time had in it eight or ten thousand dollars’ worth of diamonds. The loss claimed is for the value of the property so taken. It was stipulated that such value was in excess of $25,000.

The controversy between the parties turns on the proper construction to be given to the special indorsement attached to the safe rider. Plaintiff contends that the indorsement should be construed to mean that the policy covers everything contained in both safes, whether inside or outside the burglar-proof chests, to the extent of $25,000 in value. Defendant contends that the indorsement means that “the insurance granted under the Safe Rider” covers, like a “blanket,” such property, in either or both of the safes, to the amount of $25,000, as is “therein stated to be insured thereunder,” viz, the property contained only in the burglar-proof chests.

The argument of the plaintiff on this point overlooks, or ignores, the fact that the word “covers” in the indorsement is preceded not only by the word “insurance” but by the phrase “the insurance granted under the Safe Rider.” Under well-established principles of construction, effect must be given to all the language used in the indorsement. This can be done, and can only be done, by ascertaining from the ‘ ‘ Safe Eider” what insurance was “granted” under it. By the terms of the first paragraph of the safe rider, the only merchandise insured was the “merchandise described in the schedule. * * * and therein stated to be insured hereunder.” The only merchandise so described and so stated was the “merchandise usual to the business ’ ’ of the assured, when contained either in a “burglar-proof” safe, or in the “burglar-proof part” of a “fire and burglar-proof” safe. Plaintiff’s safes were not “burglar-proof” as that term is defined in Special Agreement C in the safe rider. His safes, as the schedule states, were the type known as “fire and burglar-proof.” By Item B in statement 5 of the schedule “the insurance granted” attached specifically to merchandise in the burglar-proof parts of plaintiff’s safes. The same limitation appears in items (o) and (p) of statement 6 of the schedule, and again in Paragraph B of the special agreements above quoted.

When these paragraphs are all considered together, as they must be, we are of the opinion that the special indorsement does not change the meaning or effect of the safe rider to which it is attached, except to make the insurance of $25,000 mentioned in the special indorsement cover (“blanket”) all the property, and only the property, insured by the terms of the safe rider, whether such property was in safe No. 1 or safe No. 2 or both. The safe rider insured only such property as was kept in the “burglar-proof part” of those safes, and none of the provisions of the rider which so state was changed by the indorsement. In other words, we hold that the words “covers blanket in safes No. 1 and No. 2,” found in the indorsement, are limited and qualified by the preceding words in the same sentence, “insurance granted under the Safe Eider. ’ ’

This view is confirmed by other circumstances appearing from the evidence. For example, the amount of premium, $88, paid for $25,000 worth of burglary insurance appears to be the usual rate charged for burglary insurance of merchandise kept in “burglarproof” safes, after deducting certain agreed discounts, and is less than one-third of the amount of premium that would be charged if all the contents of the plaintiff’s safes were intended to be covered. Again, it appears, from the evidence and from the face of the photographic copy of the policy, that the policy as originally written contained the figures “$12,500” after the word “Merchandise” in the second and third columns of statement 6 of the schedule, opposite the item “(o),” and that these figures were erased and the words, “See End,” ins'erted when the special indorsement was placed on the safe rider. It is true that the witnesses disagree as to what was said at that time, but they do not disagree as to what was done at that time. If the testimony as to what was said at that time was admissible, the preponderance of the evidence upon the point tends to support the construction we have given to the indorsement. If all such testimony be disregarded, and we think it should be, there remains the significant fact that the rider was not altered in any respect except as stated. Having reached this conclusion as to the meaning and effect of the indorsement, it will not be necessary to consider other questions discussed in the briefs.

The judgment is affirmed.

Affirmed.

Gridley, P. J., and Barnes, J., concur.


author: Mr. Justice O’Connor

text:
    Henry E. Jacobs, Appellee, v. City of Chicago and Morgan A. Collins, Chief of Police of the City of Chicago, Appellants.
    Gen. No. 31,657.
    1. Municipal corporations — validity of ordinance provision requiring action by council. The provision of the ordinance of Chicago, section 3566 of art. 2, relating to driveways across sidewalks, in requiring the consent of the city council before issuance of a permit to build them, is not invalid as being incomplete and requiring further legislative action upon a legislative act.
    2. Municipal corporations — validity of ordinance regulating driveways across sidewalks. Under Cahill’s St. eh. 24, j[ 65, subds. 7 and 16, the city has broad powers over its streets and walks, and the provision of section 3566 of art. 2 of Chicago ordinances, requiring the consent of the council before a permit to build driveways across sidewalks is issued, is a valid exercise thereof.
    3. Municipal corporations — assumptions in behalf of ordinance. In absence of evidence that the provision of section 3566, art. 2, of Chicago ordinances, requiring the council’s consent before issuance of a driveway building permit is discriminatory, oppressive or unjust, the court will assume that public officials will execute it honestly and for the public’s best interests and that it is not open to such objections.
    Interlocutory appeal by defendants from the Circuit Court of Cook county; the Hon. Francis S. Wilson, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Reversed.
    Opinion filed March 30, 1927.
    Rehearing denied and opinion modified April 8, 1927.
    Francis X. Busch, Corporation Counsel, and Barnet Hodes, Assistant Corporation Counsel, for appellants; Cora B. Hirtzel, Assistant Corporation Counsel, of counsel.
    Warren Pease, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal the defendants seek to reverse an order denying their motion to dissolve and set aside an order restraining the defendants from interfering with the complainant in the construction of a gasoline filling station and the establishment of driveways across the sidewalks leading into such station.

On October 20, 1926, complainant filed his bill to restrain the defendants from interfering with the construction of a gasoline filling station, located on property at the corner of West Sixteenth Street and Clifton Park Avenue. It was alleged in the bill that complainant had obtained the consent of property owners who owned a majority of the frontage as required by the city ordinance and had secured from the proper city officials permits permitting him to install two underground tanks, one having a capacity of 1,000 gallons and the other a capacity of 500 gallons, and a further permit to construct a building on the premises which was to be used in the operation of a filling station. It was further alleged that in order to properly operate the filling station, it was necessary to construct driveways across the sidewalk; that the city ordinance provided that it was necessary to obtain an order from the city council before a permit could be issued authorizing the construction of driveways; that in order to obtain this permit complainant applied to the aider-man of the ward in which the station was to be constructed and after the alderman looked into the matter he wrote a letter to the superintendent of streets, advising him that at the next meeting of the city council the alderman would introduce an order authorizing the issuance of a permit and that in the meantime a temporary permit might be issued and that such permit was issued accordingly.

Complainant then proceeded with the work, but shortly thereafter he was stopped by police officers. The prayer of the bill was that a temporary writ of injunction issue restraining the city officials from interfering with complainant, and that upon final hearing the injunction be made permanent. Afterwards the court entered the temporary restraining order as prayed for, apparently without objection on behalf of the city, they having looked into the matter. It appears however that shortly thereafter the city investigated the matter further and found that a part of the property owners contended that their signatures which the complainant had obtained in the way of frontage consents, required in the case of a gasoline filling station, were procured through misrepresentation and fraud and it was claimed that complainant had not obtained the necessary consents as required by the ordinance. These facts and others were set up in the defendants’ answer and the property owners filed an intervening petition making the contention that the frontage consents had been improperly and illegally obtained. The defendants made a motion to dissolve the temporary restraining order and evidence was heard which, the defendants contend, shows that the necessary frontage consents had not been obtained and that the temporary permit issued in reference to the construction of the driveways had been revoked. The motion was denied and this appeal followed.

The defendants contend that a court of chancery has no jurisdiction because the complainant has an adequate remedy at law by way of a mandamus proceeding. To this contention complainant replies that the provision of the ordinance requiring an order of the city council before a permit may issue for the construction of driveways across sidewalks is invalid, and, therefore, equity has jurisdiction. The provision of the ordinance which complainant contends is invalid is a part of section 3566 of art.' 2, of the ordinances of Chicago entitled, “Driveways.” That part is as follows: “No person, firm or corporation shall hereafter construct, build, establish or maintain driveways which depress or elevate the established grade of public sidewalks over, across or upon public sidewalks without first obtaining an order so to do from the City Council and a permit so to do, as hereinafter provided.” In support of this contention the argument of counsel for complainant seems to be that the provision of the ordinance above quoted was incomplete when it left the lawmaking body; “that it was discriminatory, oppressive, unfair and unjust, void for uncertainty and tended to create a monopoly” and counsel cites the case of City of Chicago v. Matthies, 320 Ill. 352, and other authorities. In the Matthies case an ordinance of the city of Chicago was held invalid because it failed to define “rooming houses” as mentioned in the ordinance. The court there said: “The rule also is, however, that a law, to be valid, must be complete when it leaves the legislature,” and further: “An ordinance which leaves to an executive officer the definition of the thing to which such ordinance applies, such definition not being commonly known, is an unwarranted and void delegation of legislative power to an executive officer. ” We think the part of the section above quoted is not subject to the objection made. We see no reason why the council in passing the ordinance in question may not properly require an order of the city council as a prerequisite to the issuance of a permit to construct driveways, across sidewalks. Fischer v. St. Louis, 194 U. S. 361. In that case, an ordinance of the city of St. Louis, which prohibited the erection of any dairy or cow stable within restricted limits without permission by way of an ordinance from the,municipal assembly, was held valid because the legislature of the State might, under the police power, authorize municipalities to regulate such places or occupations as might be injurious to the health of the neighborhoods or likely to disturb people living in the neighborhood by loud noises or offensive odors. The court there said (p. 371): “As the dispensing power must be vested in some one, it is not easy to see why it may not properly be delegated to the municipal assembly which enacted the ordinance.”

The city council of Chicago is by the legislature authorized “To lay out, to establish, open, alter, widen, extend, grade, pave or otherwise improve streets, alleys, avenues, sidewalks, wharves, parks and public .grounds, and vacate the same,” and “To provide for and regulate crosswalks, curbs and gutters” paragraphs 7 and 16, § 1, art. 5 of the Cities and Villages Act, Cahill’s St. ch. 24, ¶ 65, subds. 7 and 16. The power given by the legislature to city councils over streets and sidewalks is broad and comprehensive and we see no reason why the city council in passing an ordinance might not properly require that no person or corporation might depress or elevate the established grade of sidewalks over which it was sought to construct and maintain driveways without first having obtained an order from the city council. In this way the council retains the control of the city streets as authorized by the legislature. We think the ordinance in question is not subject to the objection made. We are further of the opinion that the provision of the ordinance requiring a council order is not discriminatory, oppressive or unjust. There is no evidence in the record that such is the fact, and we are bound to assume that public officials will act honestly and for the best interests of the community as the Supreme Court said in the Fischer case.

Since the record discloses that the temporary permit issued to the complainant for the construction of the driveway was revoked for the claimed reason that the frontage consents were insufficient, and since we hold the ordinance valid, complainant could not lawfully proceed with his work without first having obtained a valid permit, and, therefore, he was not entitled to the restraining order.

It follows that the court erred in overruling the motion of the defendants to dissolve the restraining order.

The order of the circuit court of Cook county is reversed.

Order reversed.

Taylor, P. J., and Thomson, J., concur.


author: Mr. Justice Shurtleff

text:
    The People of the State of Illinois ex rel. Commissioners of North Fork Outlet Drainage District in Counties of Macon, Christian and Sangamon, in the State of Illinois, Appellees, v. Elmer Schwartz, Commissioner of Highways of the Town of Cooper, County of Sangamon and State of Illinois, Appellant.
    Gen. No. 8,052.
    1. Pleadings — when special demurrer necessary to attack formal sufficiency of petition for mandamus. An objection that relator’s petition for mandamus to compel the highway commissioner to make payments levied on a town in drainage proceedings was in form insufficient as not showing a properly filed assessment roll or proper notice to defendants, cannot be raised by general but only by special demurrer particularly pointing out the defect.
    2. Drainage — when county court judgment confirming assessment not conclusive. The judgment of a county court, declared to be conclusive by Cahill’s St. eh. 42, If 34, is not conclusive in ease of jurisdictional defect in the court’s proceedings.
    3. Judgments and decrees — how jurisdictional defect in county court judgment in drainage proceedings established. That a jurisdictional defect will destroy the conelusiveness of a county court’s judgment in drainage proceedings, as raised in issue on the pleadings alone, must be pointed out by pleading or evidence.
    4. Courts — necessity that jurisdiction of county court exercising special statutory powers appear on face of proceedings. In exercising a special statutory power, as that under Cahill’s St. ch. 42, If 34, the county court’s jurisdiction therein must appear on the face of the proceedings.
    5. Judgments and decrees — how findings of judgment as to due service contradicted on collateral attack. On collateral attack on a judgment or decree which finds due service was had evidence from outside the record cannot be introduced to vary or contradict this finding unless an officer’s return of service shows no due service made.
    6. Courts — general jurisdiction of county courts in drainage matters. County courts are courts of general jurisdiction with respect to proceedings under the Drainage Act of Illinois, Cahill’s St. ch. 42.
    7. Mandamus — sufficiency of petition to compel highway commissioner to make payments pursuant to confirmation judgment in drainage proceedings. The record showing that the county court had duly confirmed the assessment roll and had jurisdiction in a drainage proceeding on “due and timely notice” to the highway commissioner against whom relators now seek mandamus to compel him to make payments assessed against the town in said proceeding, the court rightly overruled the demurrer attacking the petition for lack of jurisdiction, and issued mandamus.
    8. Appeal and error — when appeal from grant of mandamus to compel payment of drainage assessments not transferred to Supreme Court. On appeal from a grant of mandamus to compel a highway commissioner to make payments assessed against the town in drainage proceedings the ease will not be transferred from the Appellate Court to the Supreme Court as involving the question of revenue, on a dispute as to pleadings only, and after failure to show any issue as to the assessment itself in the circuit court.
    Appeal by defendant from the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding.
    Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed February 28, 1927.
    B. L. Catron and Stevens & Herndon, for appellant.
    Leslie J. Taylor and Dobbins & Dobbins, for appellees.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is a mandamus proceeding presented by appellees, commissioners of a drainage district, to compel appellant, Highway Commissioner of the Town of Cooper in Sangamon County, to pay certain drainage assessments and benefits adjudged against said town in aid of roads and bridges in the township.

On the 21st day of February, 1924, there was filed in the circuit court of Sangamon county a petition for mandamus in the name of the People of the State of Illinois upon relation of the Commissioners of the North Fork Outlet Drainage District, in the counties of Macon, Christian and Sangamon, in the State of Illinois, asking the court to issue a writ of mandamus to compel Elmer Schwartz, Commissioner of Highways of the Town of Cooper, in said county of Sangamon, to pay, or cause to be paid, to the treasurer of said drainage district, two instalments of a special assessment levied by said drainage district on the Town of Cooper and requesting that, if such funds were not available for such payment, the said commissioner be ordered to provide the necessary funds by the levy of taxes or otherwise.

The petition alleged that said drainage district had been legally organized on the 26th day of November, 1921, under the provisions of the statute commonly known as the “Levee Act,” Cahill’s St. ch. 42, ¶ 1 et seq.

The petition alleged that said Elmer Schwartz was, at the time the petition was filed, the duly elected and acting Commissioner of Highways of the Town of Cooper and had been such commissioner for more than two years prior thereto. The petition further represented that after the organization of said district, plans for the improvement of said district were duly adopted, and a special assessment to pay for the costs of said improvement was duly prepared and filed in the office of the clerk of the county court of Christian county.

The petition alleged that after the organization of said drainage district and the assessment roll was filed a jury was impaneled for a hearing upon the questions of benefits and damages and such proceedings had that said jury ascertained the benefits which would accrue to the lands, public highways, etc., within the district and made out a verdict and returned the same to the court. The findings contained in the verdict are not shown in the petition, but it alleged that in said proceedings judgment was entered by the county court of Christian county against the Town of Cooper, in the county of Sangamon, for benefits which would accrue to the public highways of said town, in the total sum of $2,800, payable in 16 instalments, and that thereby the Town of Cooper had become obligated to pay said drainage district $280 on the 28th day of July, 1922, and $214.20 on the first day of January, 1924; but that the said Elmer Schwartz had failed and refused to pay said sums or any part thereof.

The petition alleged that the jury was impaneled and said special assessment levied, “due notice having been given to all persons interested, including the said Elmer Schwartz, Commissioner of Highways of the Town of Cooper, County of Sangamon and State of Illinois,” and further, “of which said proceedings for the assessments of benefits and damages the said Elmer Schwartz, Commissioner as aforesaid, had due and timely notice. ’ ’

Appellant demurred generally to the petition and upon a hearing the court overruled the demurrer and appellant, electing to abide by its demurrer and refusing to plead or answer, judgment was entered and the writ ordered to issue, requiring appellant to pay said assessments, and in the event there were not sufficient funds on hand available for such payments, or either of them, appellant was required to make sufficient levy of taxes for that purpose, etc.

Appellant has appealed from said judgment to this court and contends that a petition for a writ of mandamus to compel the levy of taxes to pay a special assessment, levied by a drainage district against a municipality for benefits to highways, which contains no allegations that the assessment roll has been prepared and filed by the proper authorities and which contains no allegations showing the service of process or the giving of notice to the defendants, fails to show jurisdiction in the county court, and for that reason is insufficient.

The objection raised by appellant to the petition goes to the matter of form. To reach a matter of form in a pleading, the demurrer must be special, pointing out particularly the omission or defect. Wilkinson v. Cosmopolitan Life Ins. Ass’n, 154 Ill. App. 195, 199; People ex rel. McGraham v. Armstrong, 196 Ill. App. 199; McEvoy v. Court of Honor, 163 Ill. App. 556; McKinstry v. Bras, 180 Ill. App. 648; Road Dist. No. 11 v. Coultas, 212 Ill. App. 18; Delfosse v. City of West Hammond, 216 Ill. App. 140, 143. In the case last cited petitioner, a holder of unpaid special assessment bonds, filed his petition for a writ against" the city and certain of its officials to compel the city board of local improvements to file an estimate of the amount of an alleged deficiency in a special assessment. Upon a general demurrer it was argued “that the petition failed to allege the material facts necessary to support the findings and judgment in favor of the petitioner; that certain of the allegations in the petition to the effect that ‘an assessment roll was duly filed,’ that ‘a commissioner was duly appointed,’ that ‘publication duly made, ’ and other allegations of somewhat similar form were insufficient, being mere conclusions of the pleader. We think these allegations were sufficient. It is, of course, true that the petitioner was required to show by his petition that he was clearly entitled to the relief which he prayed for. His claim for relief is based upon the allegation that he is an innocent holder for value of certain special assessment bonds of the City of West Hammond. If the allegations quoted above be true, then so far as they are concerned he was entitled to relief. It should be kept in mind that the issues here do not arise between a property owner, whose property is to be assessed, and the respondents. In the present case it was sufficient to allege that the proceedings which resulted in a confirmation of special assessment No. 23 were in every respect regular and in conformity with the law. The petitioner was not required to state evidentiary facts, nor do we believe that the law required him to allege in his petition every step and detail of the sp.ecial assessment proceedings and the acts done therein which resulted in the issuance of bonds for the payment of the costs and expenses of the public improvement which was provided for by the original assessment.”

In Ottawa Gas Light & Coke Co. v. People, 138 Ill. 336, 346, an action brought to recover certain taxes, a declaration was filed containing an averment “that the taxes were levied and extended,” etc. A general demurrer was filed and the court held:

“It is further objected * * * that each count is defective in not averring by what authority the taxes were levied, and the particular municipality or corporation to which they were payable. The averment of the declaration is, that the taxes were levied and extended, which necessarily includes a levy and extension upon a valid assessment. * * * It would have been better pleading to have averred the accruing of the taxes for the several years, and their having been carried forward as back taxes by the proper officer, etc.; but it is manifest that the objection goes to the form, and not to the substance of the right of recovery, and therefore cannot be raised by general demurrer. ’ ’ And it is held in People v. Powell, 274 Ill. 222, 225, that a petition is sufficient if “everything necessary to create the duty which the realtors ask to have performed was either expressly averred or fairly implied from express obligations.”

The assessment and judgment, as alleged in the petition, were confirmed and entered in the county court of Christian county, that court acting under special and statutory powers, and section 34% of the Levee Act, Cahill’s St ch. 42, If54, providing that: “This Act shall be liberally construed to promote the ditching, drainage and reclamation of wet or overflowed lands; and collection of assessments shall not he defeated by reason of any omission, imperfection or defect in the organization of any district, or in any proceedings occurring prior to the judgment of the court, confirming the assessments of benefits and damages; but said judgment shall be conclusive that all prior proceedings were regular and according to law,” is urged in the briefs of both parties, appellant contending that it does not apply in any case where there is a defect in the proceeding defeating the jurisdiction of the court. These cases so hold and as an elementary principle it is true, but it does not affect the question of pleading in this case until some jurisdictional defect in the proceedings is pointed out, either by evidence or plea. The question was before the Supreme Court in Spring Creek Drain. Dist. v. Commissioners of Highways of Town of Joliet, 238 Ill. 521, 523, and the court held:

' ‘ This action is collateral to the proceedings in the county court as to this assessment, and no objections can be urged here except such as question the jurisdiction of that court. (Highway Comrs. v. Drainage District, 207 Ill. 17.) In the exercise of a special and statutory power conferred upon the county court it is necessary that its jurisdiction shall appear in some way upon the face of its proceedings. (Cobe v. Guyer, 237 Ill. 516; Illinois Central Railroad Co. v. People, 189 id. 119.) Where a decree or judgment order attacked in the collateral proceedings finds that the parties have been duly notified, such finding, like any other judicial determination, cannot be contradicted, varied or explained by parol or other evidence beyond or outside of the record itself. (Stack v. People, 217 Ill. 220; Reedy v. Camfield, 159 id. 254; Harris v. Lester, 80 id. 307; Hertig v. People, 159 id. 237; Casey v. People, 165 id. 49; Pipher v. People, 183 id. 436; Fiske v. People, 188 id. 206; People v. Illinois Central Railroad Co., 213 id. 367.) If the notice be given by publication, a publisher’s certificate contrary to the finding that due notice has been given will not defeat such finding, because the court may have based it on other evidence as to notice; but the service of summons can only be shown by the officer’s return, and hence, when it contradicts a finding of the court that due service has been had, it will overcome the finding and prove the want of jurisdiction, even in a collateral proceeding. Reedy v. Camfield, supra; Illinois Central Railroad Co. v. People, supra.”

In Commissioners of Highways of Town of Dix v. Big Four Drain. Dist. of Ford Co., 207 Ill. 25, the court held: “We deem it unnecessary in this case, after judgment, to discuss the averments of the petition for the purpose of determining whether or not they show that the county court had such jurisdiction. ‘County courts in this State are courts of general jurisdiction with respect to all matters coming within the purview of their jurisdiction as given by law.’ (Matthews v. Hoff, 113 Ill. 90; Field v. Peoples, 180 id. 376. In pleading the judgment of such a court it is unnecessary to aver the facts which gave it jurisdiction of the parties and subject matter of the litigation. Wallace v. Cox, 71 Ill. 548; People v. Lane, 36 Ill. App. 649; 2 Greenleaf on Evidence, sec. 279, note; 11 Ency. of Pl. & Pr. p. 1130.”

The petition set out properly and sufficiently notice to the parties in interest and the judgment of the county court confirming the assessment roll, and the court did not err in overruling the demurrer and granting the writ. Commissioners of Highways of Town of Dix v. Big Four Drain. Dist. of Ford Co., supra; People ex rel. Coon Run Drainage & Levee Dist. v. Nortrup, 232 Ill. 303.

A more serious question is presented in this cause by appellees’ motion, which has been taken with the case to transfer the cause to the Supreme Court, on the ground that it involves a question of revenue. The motion is based upon the authority of Kilgour v. Drainage Com’rs, 111 Ill. 342; Commissioners of Highways of Town of Dix v. Big Four Drain. Dist., 207 Ill. 17, and People v. Honeywell, 258 Ill. 319. In the Kilgour case, under the Drainage Act of 1879, the landowner appealed from the assessment made by the commissioners to three supervisors, and the assessment was confirmed. A bond had been given on the appeal and suit was brought upon the bond. The court held that: “There can be no doubt that a recovery of the assessment in this case by the sale of the lands assessed would be a bar to a suit on the appeal bond, the same as a discharge of the bond by payment would bar an application for judgment on the assessment.” It is evident that when this suit was brought there had been no judgment of court confirming the assessment. The court held that the suit involved a question of revenue and was properly appealed to that court. The court held in the same case: “The provisions of the constitution in relation to taxes have no application to the imposition of the burdens imposed by this act. * * * It is a special regulation, whereby an owner is required to pay for benefits specially conferred upon his land. ’ ’

In Commissioners of Highways of Town of Dix v. Big Four Drain. Dist., supra, the facts were substantially the same as in this case and based upon the Kilgour case the court followed the same rule.

In People v. Honeywell, supra, the appeal was taken from a judgment of the county court ordering lands assessed to be sold to pay the assessment, and the objection was made that the assessment was illegal for the reason that portion of the lands lay within a municipal corporation, which was already indebted to its full constitutional limit. The objection was overruled, the Kilgour case followed, and it was held that the only limit applicable to drainage assessments is that the assessment must not exceed the benefits. For anything that appears, the Honeywell case was under the Farm Drainage Act, Cahill’s St. ch. 42, 120 et seq., which was an appeal from the first proceeding in court to confirm the assessment where the landowner had opportunity to present his objections. Commissioners of Highways of Town of Colfax v. Commissioners of East Lake Fork Special Drain. Dist., 127 Ill. 581, and reference to that case in Commissioners of Highways of Town of Dix v. Big Four Drain. Dist., 207 Ill. 21.

The facts in this case are more nearly like the situation in Murphy v. People ex rel. West Chicago Park Com’rs, 221 Ill. 127, in which it was held: “Where, as here, the legality of the tax or special assessment is not involved and neither the liability to pay nor the amount to be paid is in controversy, the revenue can neither be increased, diminished nor directly affected by any judgment that can be rendered in the case. The amount of the special assessment has passed into a judgment against the land, and it only remains to reduce it to possession by collection from the landowner or by sale of the land. The case relates to revenue only incidentally and remotely, and that is not sufficient to confer jurisdiction upon this court. Wells v. Rogers, 196 Ill. 292.”

The Murphy case was a petition for mandamus and exactly the same as the case at bar, except in the Murphy case there had been a judgment in the county court, affirmed in the Supreme Court, and the only issue made by respondents was the existence of a remanding order. In the case at bar there is a judgment of the county court, from which no appeal has been taken and no issue of fact made upon the petition, and no issue of law made, except as to a question of pleading. There have been a number of cases carried directly to the Supreme Court upon the theory that a question concerning revenue was involved. No question was raised upon the appeal and it is with difficulty that the line of demarcation is followed. There have been cases in the twilight zone of the principle that are with difficulty classified. To review any considerable number of these cases would serve no useful purpose. Ever since the case of Reed v. Village of Chatsworth, 201 Ill. 480, in which it was held:

“From the foregoing statement it appears to us that we have no jurisdiction to entertain this appeal. We assume that appellant sought this forum on the theory that it was a case ‘relating to revenue.’ We cannot so construe it. Our view is that the question of revenue can only be at issue when some recognized authority of the State, or some of the municipalities authorized by law to assess or collect taxes, are attempting to proceed under the law and questions arise between them and those of whom the taxes are demanded. Here the tax is already collected and in the hands of the county treasurer, and no question arises between those who levied the tax and those who paid it. In fact, there is no question made upon the tax or revenue at all.” There has been an evident tendency to restrict the jurisdiction of direct appeals. People ex rel. v. City Council of Peoria, 229 Ill. 225; O’Connor v. High School Board of Education of Evanston High School Dist., 278 Ill. 622; and Dicus v. Fuchs, 303 Ill. 489.

In the opinion of this court the petition stated a cause of action, not subject to general demurrer, and the appeal was properly taken to this court. Therefore, the judgment of the circuit court of Sangamon county is affirmed.

Affirmed.


author: Mr. Presiding Justice Taylor

text:
    Park Avenue Methodist Episcopal Church, Appellant, v. Park Avenue Colored Methodist Episcopal Church et al., Appellees.
    Gen. No. 31,170.
    1. Foreclosure of mortgages — when bill to foreclose after default in purchase price not premature. A bill for the foreclosure of a trust deed against church property after default in purchase price payments was not filed prematurely but stated a good cause of action, upon facts showing that the notes sued on and secured by the trust deed were given for part of the purchase price and that defendant had admitted that title had passed to it by demanding the warranty deed promised it upon completion of certain payments as also by its answer claiming title through technical delivery of the warranty deed while yet in escrow.
    2. Escrows — delivery of warranty deed in trust for grantee under escrow agreement as passing title to grantee. Under an escrow which does not preclude supposing that a trustee was holding a warranty deed in trust for a grantee and the trust deed securing unpaid amounts of the purchase price for the grantor, upon the grantee completing specified payments the title will be considered as passing to the grantee through technical delivery of the warranty deed and to the trustee by the trust deed.
    3. Foreclosure of mortgages — when grantor and grantee of property deemed to have intended foreclosure of trust deed upon default of payment of purchase price. If the whole course of dealing between a grantor and grantee shows their mutual recognition of the latter’s debt for part of the purchase price of church property, and that the debt was secured by the property purchased, and that upon default the grantor could take the property, equity will consider that this intent of the parties must be carried out by foreclosure of the trust deed upon default thereon.
    4. Escrows — when performance of conditions under which deed held by trustee deemed followed by delivery of deed to grantee. Under an escrow that a grantor’s warranty deed, held in trust, should pass to the grantee upon payment of $1,200, the payment of that sum may be considered as followed by a delivery of the warranty deed to the grantee, thereby making it possible for the grantor to enforce his trust deed by foreclosure upon default thereon.
    5. Tender and deposits in court — when tender of defaulted payment insufficient after acceleration of debt by institution of suit. A tender by defendant of a defaulted payment on a purchase price trust deed after suit was begun to collect the whole remainder due by such default, is not sufficient tender to halt the foreclosure of the trust deed.
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon. Hugo M. Friend, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Reversed and remanded with directions.
    Opinion filed April 6, 1927.
    N. M. Jones, for appellant.
    Denison, Watkins & White, for Park Avenue Colored Methodist Episcopal Church, appellee; Caldwell Watkins, of counsel.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

This is a suit begun by a bill of complaint filed in the circuit court of Cook county, on June 10, 1925, by the complainant, the Park Avenue Methodist Episcopal Church, against the defendant, the Park Avenue Colored Methodist Episcopal Church, and others, to foreclose a trust deed on certain real estate for the liquidation of a principal indebtedness of $11,000, represented by certain promissory notes, signed by the defendant, Park Avenue Colored Methodist Episcopal Church. On July 10, 1925, the defendant filed an answer and cross-bill. Other pleadings were filed, and on October 26, 1925, the matter was referred to a master in chancery to take proofs and make a report. On March 4, 1926, the master filed his report, finding a balance of $12,250.16, which included solicitor’s fees of $500, due from the defendant, the Park Avenue Colored Methodist Episcopal Church, to the complainant, the Park Avenue Methodist Episcopal Church, and that the complainant had a valid and subsisting lien on the premises in question for that amount, and was entitled to foreclosure of said trust deed to satisfy its lien.

Objections were filed to the master’s report, and, subsequently, he made and filed a supplemental report, which added some findings to his original report, but did not materially change the recommendations as to the decree.

On March 26,1926, exceptions to the master’s report having been filed and considered, a decree was entered that the bill of complaint be dismissed on the ground that it was prematurely filed. This appeal is from that decree.

The evidence shows, in part, the following:

On October 29, 1918, a written contract was entered into between one Bishop Bandall A. Carter, as vendee, and the Park Avenue Methodist Episcopal Church, as vendor, for the purchase and sale of certain church property, for the sum of $25,000. That contract contained the following:

“Said purchaser has paid Three Hundred ($300.00) Dollars as earnest money to be applied on such purchase when consummated, and agrees to pay within five (5) days after the title has been examined and found good, or accepted by him, said insurance premi um and the further sum of Seven Hundred ($700.00) Dollars, at the office of E. Woltersdorf & Co., Chicago, provided a good and sufficient general Warranty Deed conveying to said purchaser "a good and merchantable title to said premises shall then be executed and placed in escrow with Chicago Title & Trust Co. till $12,000 is paid. The balance to be paid as follows: $1,000 in 90 days; and $2,000 one year from date of deed, and $3,000 each year thereafter for seven (7) years, all from date of deed, with privilege of pre-paying one or more of said notes on any interest day on thirty (30) days written notice, with interest from the date of deed, at the rate of six per cent (6%) per annum, payable semi-annually, to be secured by the purchaser’s notes and mortgage, or trust deed, of even date herewith on said premises. ’ ’

On December 2, 1918, the complainant executed a warranty deed of the premises in question to the defendant. On the same date, the defendant made and delivered to the complainant nine principal promissory notes, aggregating $24,000, as evidence of the balance of the purchase price for the premises in question. On the same date, the defendant executed and acknowledged a trust deed conveying the property in question to the Chicago Title & Trust Company, as trustee, in trust, to secure the nine promissory notes in question, aggregating $24,000. The trust deed recited that they were given to evidence and secure the purchase money. Two days later, on December 4,1918, the complainant and the defendant entered into an escrow agreement which, together with the warranty and trust deeds, was deposited with the Chicago Title & Trust Company. The escrow agreement contained, in part, the following:

“The accompanying W. D. & T. D. are deposited with the Chicago Title & Trust Company to be delivered by it only on the joint order of the undersigned, or their respective legal representatives or assigns.”

In the spring of 1922, owing to difficulties which the defendant found in making payments according to the terms of the notes, a new agreement, in the nature of an extension agreement, was entered into, whereby the dates and amounts of payment were somewhat changed; and although the payments to be made thereafter were not made punctually and in entire accord with the extension agreement, they were accepted by the complainant.

Up to March 4, 1925, $14,000 had been paid by the defendant to the complainant on the principal of the notes numbered 1 to 5 inclusive, and $1,000 on note numbered 6, and all the interest coupons on the canceled notes, and on notes numbered 6, 7, 8 and 9.

The master found that default was made in the payment of $1,000 under the extension agreement, and that the default still continued. He also found that, including $70 for an abstract made by the Chicago Title & Trust Company, and solicitor’s fees of $500, there was due to the complainant a total sum of $12,250.16 and costs.

On March 17, 1925, the defendant wrote to the complainant that it had, under the escrow agreement with the Chicago Title & Trust Company, “paid to your church an amount which entitled them to a Warranty Deed and a Trust Deed delivered to you covering the balance of purchase price. We are ready to terminate the escrow agreement, and by this letter are requesting your church to do so.”

On June 2, 1925, the defendant wrote to the complainant, stating that there was payable to it that day $1,000, with interest of $330, as “part payment by us for the purchase of Park Avenue Methodist Episcopal Church.” That letter contained, also, the following: “We are prepared to pay this amount, and with such payment your church shall deliver to us our Warranty Deed on the said church premises, and retain the Trust Deed as part of such purchase price, according to the escrow agreement deposited with the Chicago Title & Trust Company, as we have heretofore advised. That there may be no misunderstanding, we want the Warranty Deed, which was placed in escrow when the property was purchased, as under the law such an escrow was a delivery of such deed.”

At the opening of the hearing before the master, on November 6, 1925, counsel for the defendant, the Park Avenue Colored Methodist Episcopal Church, stated that he “hereby tenders” to the complainant $1,000 due under the trust deed and subsequent agreements and $660 accrued interest on the balance of $11,000, due, but not payable, under the trust deed' and agreements, and further tendered sums equal to the clerk’s costs, sheriff’s fees, attorney’s fees and master’s and stenographer’s fees that may have been incurred up to date.

Replying to that statement, counsel for the complainant stated that the complainant claimed that the full amount mentioned in the bill of complaint upon all of the four notes which were still unpaid was then, together with interest,. due and, also, costs and solicitor’s fees, as set forth in the bill of complaint, and that on behalf of the complainant “I decline to accept the money at present in court, unless the full amount is paid. ’ ’

On December 9, 1925, while the matter was on hearing before the master, by agreement of the parties, the warranty deed was taken out of escrow and delivered to the defendant by the complainant, and the trust deed was taken out of escrow and delivered to the complainant, and it was agreed that the delivery of the warranty and trust deeds should in no way affect the rights of either of the parties, and that the deliveries were made without prejudice to any of the rights of the respective parties.

In the original answer of the defendant to the bill of complaint, which answer was filed on July 10, 1925, it was stated by the defendant that “Delivery of the Warranty Deed by the complainant to the Chicago Title & Trust Company in escrow was a delivery to the defendant church, and such deed and the premises described therein are the property of the defendant church. The defendants deny the right of the Chicago Title & Trust Company to deliver said Warranty Deed to anyone except the legal owner, the said defendant church, and the bill to foreclose admits the delivery and ownership of said Warranty Deed, without which complainant would be without warrant, right or remedy to file said bill of foreclosure, and in doing so admits the defendant church’s title, delivery and possession.”

On March 26,1926, the defendant, pursuant to leave of court, filed an amendment to its answer striking out certain statements therein, concerning the execution and deposit in escrow of the warranty deed and trust deed, and inserting in lieu thereof the averment that the deposit of the warranty deed with the Chicago Title & Trust Company was not a delivery of the warranty deed, or a transfer of title to the defendant, and that there was no delivery until the warranty deed, on December 9, 1925, was delivered upon the hearing before the master. The amendment added also the averment that the defendant denied the right of the Chicago Title & Trust Company to deliver the warranty deed to anyone except on an order of the complainant and the defendant, who signed the joint order in escrow.

The record shows that the defendant had occupied the property in question since the time of the execution of the contract of sale.

It will be seen from the foregoing that the chief question is whether, at the time of the filing of the bill to foreclose, the complainant was entitled to proceed in equity to foreclose the trust deed, that is by equity proceedings to sequester the property in question for the payment of the balance of the indebtedness. The indebtedness and the default in payment being admitted as existing at the time the bill was filed, we are of the opinion that the complainant had the right to proceed as it did to have the property in question appropriated for the payment of the balance of the indebtedness. There would seem to be a good many reasons in support of that conclusion.

The original contract of sale of October 29, 1918, shows that it was the intention of the parties that the warranty deed should be executed and placed in escrow with the Chicago Title & Trust Company until $12,000 of the purchase price was paid. It also shows that both parties understood that the property was sold for the contemplated price, and that the defendant was the purchaser, and, in equity, at least, the owner of the property in question, and that it became the debtor to the complainant for the balance of the purchase price, which was to be represented by certain notes, and that those notes were to be secured by a mortgage, or trust deed. The defendant took possession of the property and, presumably, has remained there ever since.

In the original answer of the defendant to the bill of complaint, the defendant stated affirmatively that “Delivery of the warranty deed by the complainant to the Chicago Title & Trust Company in escrow was a delivery to the defendant church, and such deed and the premises described therein are the property of the defendant church.” In that same answer, the defendant denies the right of the Chicago Title & Trust Company to deliver the warranty deed to anyone except the legal owner, the defendant church, and “admits the defendant church’s title, delivery and possession.” It is true that afterwards, on the day the decree was entered, the defendant filed an amendment to its answer, and undertook-to dispute the delivery of the warranty deed and transfer of title to the defendant, stating that the title to the property still remained in the complainant until the deed was delivered on December 9,1925, on the hearing before the master.

In the letter of June 2, 1925, written by the defendant to the complainant, the defendant used the following language: ‘ That there may be no misunderstanding, we want the warranty deed, which was placed in escrow when the property was purchased, as under the law such an escrow was a delivery of such deed.” Further, on December 9,1925, while the matter was on hearing before the master, by agreement of the parties, the warranty deed was taken out of escrow and delivered to the defendant by the complainant, and the trust deed was taken out of escrow and delivered to the complainant.

Considering the contents of the original contract of October 29,1918; that the notes were given for part of the purchase price; that the defendant was actually in possession of the property; that the warranty deed and trust deed were deposited with the Chicago Title & Trust Company, “to be delivered by it only on the joint order of the undersigned”; that the defendant, on June 2, 1925, wrote to the complainant that the escrow was a delivery of the warranty deed; that as in the original answer of the defendant on July 10, 1925, it was affirmatively stated by the defendant that a delivery of the warranty deed and the trust deed in escrow was a delivery to the defendant; that that answer stood unchallenged throughout all the hearings before the master, and was not modified until March 26, 1926, the day the decree was entered, we feel bound to conclude, this being a proceeding in equity, and the complainant having the right, upon the defendant’s default, to sequester the property in question for the payment of the indebtedness; that the bill of complaint was not filed prematurely, but, on the other hand, stated a good cause of action, and justified the recommendation of the master that the property be sold for payment of the debt. Further, there are no words in the escrow agreement which preclude the inference that it was mutually intended that the Chicago Title & Trust Company, as trustee, should hold the warranty deed in trust for the defendant and the trust deed in trust for the benefit of the complainant; and that as a result, in equity, the title would be considered as passing to the defendant, through the giving of the warranty deed, and then passing to the trustee by the trust deed, as the. result of its delivery by the defendant to the Chicago Title & Trust Company, holder of the escrow. Further, what the parties intended, equity considers as done. The whole history of the protracted relations of the parties demonstrates a mutual recognition of the debt and that it was secured by the property in question and that upon default, proceedings could be begun to take the property, according to the terms of the trust deed.

Further, taking the words of the original contract of purchase, of October 29, 1918, “provided a good and sufficient general warranty deed conveying to said purchaser a good and merchantable title to said premises, shall then be executed and placed in escrow with the Chicago Title & Trust Company till $12,000 is paid,” and considering them in conjunction with the phraseology of the escrow agreement, “to be delivered by it only on the joint order of the undersigned, or their respective legal representatives or assigns,” the most that could reasonably be claimed by the defendant, apart from all the other evidence, would be that the warranty deed was not delivered, or could not be considered as delivered, until the defendant had paid $12,000 of the purchase price; and as the evidence shows that that amount had been paid prior to the institution of this suit, it follows that the only condition preventing delivery had been satisfied before the suit was begun, and, accordingly, as a consequence, in equity, the warranty deed must be considered as the property of .the defendant and as having the same effect as a physical delivery to the grantee. If, as the court said in Weber v. Brak, 289 Ill. 564, 567, “The intention of the grantor in a deed concerning the matter of delivery is the controlling element which determines whether the deed has been delivered,” then it is quite obvious that the words of the original contract, those of the escrow agreement and the other evidence, show that there was, even at law, a sufficient delivery when the payments by the defendant amounted to $12,000.

It is also urged for the defendant that at a hearing before the master it made a sufficient tender of what was due. That is not tenable. At that dime a suit was then pending, owing to defendant’s default, and all that was tendered was the amount that was due immediately before the suit was begun, and certain fees and costs; whereas, the institution of the suit put the defendant in default as to all that remained of the principal indebtedness, and that amount was not offered or tendered.

The decree, therefore, will be reversed and the cause remanded with directions to enter a decree of foreclosure in accordance with the recommendations of the master.

Reversed and remanded with directions.

O’Connor and Thomson, JJ., concur.